Disasters and Emergencies: Legal authorities and the military’s role

Today the President declared that a “major disaster” exists in Puerto Rico as a result of Hurricane Maria.  He had previously announced (Sept 5th) an “emergency” in Florida.  Is there a difference?  Actually, yes.  Let’s discuss that as well as the military’s role in domestic disaster and emergency situations.

A Federal Emergency Management Agency (FEMA) fact sheet can be found here that does a good job in explaining the “declaration” process and what it means in terms of federal support.  In addition, there is a brand-new (Sept 8th) Congressional Research Service report, Congressional Primer on Responding to Major Disasters and Emergencies that is very helpful.  In it the authors make the distinction:

Emergency declarations authorize activities that can help states and communities carry out essential services and activities that might reduce the threat of future damage. Emergency declarations may be declared before an incident occurs to save lives and prevent loss.

The definition for a major disaster is more precise than an emergency declaration, and the range of assistance available to state and local governments; private, nonprofit organizations; and families and individuals is broader. Under a major disaster declaration, state and local governments and certain nonprofit organizations are eligible (if so designated) for assistance for the repair or restoration of public infrastructure, such as roads and buildings. A major disaster declaration may also include additional programs beyond temporary housing, such as disaster unemployment assistance and crisis counseling, and other recovery programs, such as community disaster loans.

The legal authority for the Presidential declarations is mainly sourced in the Stafford Act.  The CRS report also contains a listing of some of the other “declaratory” authorities.  These include (but are not limited to):

  • [A] Presidential declaration of a “national emergency” pursuant to the National Emergencies Act (50 U.S.C. Chapter 34) that specifies the federal authorities the crisis requires;
  • [A] determination by the Secretary of Health and Human Services (HHS) of a public health emergency (PHE) pursuant to Section 319 of the Public Health Service Act (PHSA, 42 U.S.C. §247d);35
  • [V]arious disaster declarations from the Administrator of the Small Business Administration (SBA);36 and
  • [V]arious disaster declarations and designations from the U.S. Department of Agriculture. 

Military Role:

What about the military’s role?  A FEMA training document found here has a lot of detail, but the key Department of Defense (DoD) authorities are found in DoD Directive 3025, Defense Support of Civil Authorities (DSCA), 18 December 29, 2010 (Chg 1, Sept 29, 2012).  A more ‘accessible’ explanation is found in Joint Publication (JP) 3-28, Defense Support of Civil Authorities, 31 July 2013.

What these documents make clear is that the military is typically used to support civilian Federal, state, and local governmental organizations, not to supplant them.  Thus, the military’s capabilities and experience in search and rescue, logistics and transportation, medical aid, engineering, and related services are those usually sought and employed by civilian agencies.

Law enforcement is, however, something else, particularly since the military has no appetite for anything suggesting “martial law.”  In thinking about the military possibly enforcing the law, it’s essential to carefully distinguish between the legal statuses of the National Guard (and other state military forces), and Federal military forces (e.g, the Army, Navy, Air Force, and Marines), to include National Guardsmen who have been called to Federal service.

As a general proposition, Federal military forces are precluded by the Posse Comitatus Act (or DoD directive) from performing law enforcement duties.  The relevant DoD directive is DoDD 5525.5, DoD Cooperation with Civilian Law Enforcement Officials, January 15, 1986.  There are, however, times when Federal military forces can be used to enforce the law because of a specific statute permitting them to do so, or because of an inherent Constitutional power.  Regarding the latter, here’s an extract from DoDD 5525.5 that describes some of the legal authority that might be especially relevant:

Actions that are taken under the inherent right of the U.S. Government, a sovereign national entity under the U.S. Constitution, to ensure the preservation of public order and to carry out governmental operations within its territorial limits, or otherwise in accordance with applicable law, by force, if necessary. This authority is reserved for unusual circumstances, and will be used only under DoD Directive 3025.12 (reference (l)), which permits use of this power in two circumstances:  The emergency authority authorizes prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situation. (Emphasis added.)

Protection of Federal property and functions authorizes Federal action, including the use of military forces, to protect Federal property and Federal Government functions when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection. 

Still, the recent hurricanes have not occasioned the need for Federal military forces to perform law enforcement duties, as the Federal government is reluctant to do so absent a request from the state.  However, the National Guard can, and frequently does, perform such duties in its legal status as a state military force under command of the governor, not the President.  Again, the legal authority of the National Guard very much depends upon its status at a particular moment (a great fact sheet with numerous cites to statutes is found here).

Interestingly, besides the National Guard, some states (as well as Puerto Rico) have what are called “state defense forces.”  Although they often uniform themselves like Army or Air Force troops, they are not part of Federal forces or the National Guard.  Rather, they are wholly entities of state law under command of the governors, and not normally subject to being federalized (as may happen with respect to the National Guard, even when the governor objects).  Some states have significant state defense forces.  For example, Texas has the 3,000-member Texas State Guard and it was activated for Hurricane Harvey.  (You may also be interested in the role of the Texas State Guard in response to the kerfuffle over a Special Forces exercise in 2015 call Jade Helm).

Following the military’s truly outstanding performance after Hurricane Katrina in 2005, there were calls for active-duty troops to take a more robust – and even leading – role in disaster operations, to include law enforcement.  Much of this was a result of the fact that “at least 200 New Orleans police officers have walked away from their jobs.”  (Of course, military personnel have no legal authority to “walk away from their jobs” as civilian police officers can do.)  Still, I’ve always opposed a law enforcement role for the military, absent truly extraordinary circumstance, which even Katrina did not necessitate.

Importantly, during peacetime the U.S. Coast Guard is part of the Department of Homeland Security, and not the Department of Defense.  While its main focus during the natural disasters we’ve seen lately is search and rescue as well as providing other aid, the Coast Guard does have explicit law enforcement powers, mainly on the high seas and in U.S. waters (highlighted recently by record seizures of illegal drugs).

Finally, it’s worth noting that U.S. Northern Command maintains Joint task Force Civil Support.  Despite its title, the mission of the unit doesn’t include addressing natural disasters like hurricanes.  Rather, its purpose is “providing command and control of Department of Defense forces deployed to support a Primary Agency (PA) managing the consequences of a chemical, biological, radiological, nuclear, or high-yield explosive (CBRN) incident in the United States and its territories and possessions.”  Along this line, there is a new (June 2, 2017) CRS report entitled Stafford Act Assistance and Acts of Terrorism that talks about how the law applies to those situations, and reviews how the Act worked in response to specific terrorist acts in the past.

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