Federal Disaster Response: Legislative Reforms Since Katrina

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August 26th, 2015 by Katarzyna Fertala

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In his final news conference as president in January 2009—three and a half years after Hurricane Katrina—President George W. Bush still faced criticism regarding the federal government’s response to the disaster. “Don’t tell me the federal response was slow when there was 30,000 people pulled off roofs right after the storm passed.” President Bush conceded that mistakes were made, but he rejected the allegation that the federal response was slow. This debate regarding federal action during Hurricane Katrina has continued among scholars, politicians, policy makers, and emergency management professionals well beyond President Bush’s term in office. “Slow” after all is a subjective term. The actions of the federal government in the last decade since Hurricane Katrina, however, indicate that the federal response was indeed unnecessarily delayed in August 2005, and positive steps have since been taken to ensure more effective federal involvement in disaster response.

The federal government’s emergency management policy reform was all but slow. The 109th Congress enacted six statutes that changed long-term federal emergency management policy. Most notably, the Post-Katrina Emergency Management Reform Act of 2006 reorganized the Federal Emergency Management Agency (FEMA) and expanded its statutory authority, giving it more autonomy within the Department of Homeland Security.[1] It also included legislative reforms that encompassed various planning and preparedness requirements and an emergency communications title that requires the development of a National Emergency Communications Plan.

Perhaps the primary reason for the delayed federal action was the President’s perceived lack of constitutional and statutory authority to assume command of the response by the National Guard or to override Louisiana Governor Kathleen Blanco’s refusal to allow a unified command structure for active duty federal troops and the National Guard. That perception resulted from a narrow interpretation of both constitutional principles and the Posse Comitatus Act, which prohibits the use of the federal military to enforce domestic laws in most cases. In 2006, to resolve this lingering uncertainty, President Bush urged Congress to enact the Warner Amendment to the Insurrection Act. This Amendment granted the President explicit authority to employ federal troops to “restore public order and enforce the laws of the United States”[2] without the consent of the affected state to respond to a major disaster or emergency. The Warner Amendment was subsequently repealed in 2008, as it faced much opposition having arguably represented an unjustified expansion of presidential power.

Despite the ultimate repeal of the Warner Amendment, in the aftermath of Hurricane Katrina, leaders in the field recognized the military’s potential to play a critical role in providing response support in major disasters and emergencies. The Robert T. Stafford Disaster Relief and Emergency Assistance Act already authorizes federal agencies, including the Department of Defense, to provide a wide range of assistance in order to save lives and protect property, including providing federal supplies, personnel, and other resources or performing various emergency management services. In 2012, Congress passed the National Defense Authorization Act,[3] which allows the Secretary of Defense to involuntarily activate any Reserve units or individuals under federal authority to provide assistance in responding to a presidentially declared disaster or emergency. A state governor must first request federal assistance, but need not consent to the activation of Reserve troops. The passage of this Act streamlined the process for the Reserve to mobilize in order to support local communities. The Act’s purpose was first realized in November 2012 when the Army Reserve activated three tactical water distribution units to affected areas in response to Hurricane Sandy.

In stark contrast to the criticism of slow federal action in response to Katrina, the federal government received much praise from the states and local communities impacted by Hurricane Sandy seven years later for its quick response and minimal bureaucratic red tape.  Despite a few challenges over the last ten years, including the enactment and repeal of the Warner Amendment, the federal government has made and continues to make significant progress in its involvement in disaster and emergency management through carefully considered legislative reform.

[1] Other significant statutes include the Security Accountability for Every Port Act of 2005 (SAFE Port Act); the Pets Evacuation and Transportation Standards Act of 2006; the Federal Judiciary Emergency Special Sessions Act of 2005; and the Student Grant Hurricane and Disaster Relief Act.

[2] Section 1076 of the John Warner National Defense Authorization Act for Fiscal Year 2007.

[3] 10 U.S.C. § 12304a.

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