BerkeleyLaw Library

"This report, which will be updated as events warrant, discusses the following:

• Medicaid's rules on eligibility, benefits, and financing in the context of current questions and issues raised by Hurricane Katrina.
• Recent state actions in response to Medicaid issues raised by the hurricane.
• Federal Medicaid waiver authority, including information on current activity in this area and the New York Disaster Relief Medicaid waiver granted in response to the September 11 terrorist attacks.
• Current federal legislation related to Medicaid and Hurricane Katrina relief efforts."

—Summary.

"Members of Congress have introduced legislation in both the House and Senate to alter federal emergency management organizational structures and responsibilities, amend authorities that guide federal action, impose emergency management leadership qualification requirements, and make other changes. The proposals are based upon investigations conducted on the role of the Federal Emergency Management Agency (FEMA) and other entities in the response to Hurricane Katrina in the fall of 2005.

"Some observers reduce the matter to one basic question: 'Should FEMA remain within the Department of Homeland Security (DHS), or should the agency regain the independent status it had before the creation of DHS?' The issue, however, is more complex than just one of organizational placement."—Summary.

"Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion.

"We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are (1) why the president changed from opposing the development of a new department to supporting it and (2) why his plan for such a department was far beyond the scope of any other existing proposal. We argue that the president changed his mind in part because he did not want to be on the losing side of a major legislative battle. But more importantly, the president supported the massive new department in part to further domestic policy priorities unrelated to homeland security. By moving a large set of agencies within the department and instilling them with new homeland security responsibilities without additional budgets, the president forced these agencies to move resources out of their legacy mandates. Perversely, these goals appear to have been accomplished at the expense of homeland security.

"Finally, we briefly discuss more general implications of our perspective: first, previous reorganizations (such as FDR's creation of a Federal Security Agency and Carter's creation of an Energy Department) also seem to reflect presidential efforts to enhance their control of administrative functions - including some not directly related to the stated purpose of the reorganization; and, second, our analysis raises questions about some of the most often-asserted justifications for judicial deference to agency legal interpretations." —Abstract.

"In the wake of Hurricane Katrina, Congress amended the Insurrection Act of 1807. The Act enables the President to deploy the military 'to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.' The amended Act expands the language of the original Act to include natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the amendment, most notably all fifty governors, criticize the amendment as a presidential power grab aimed at suppressing the power of the states and increasing the role of the military in domestic affairs.

This paper argues that the amendment to the Insurrection Act does not affect the President's existing powers to deploy the military domestically. Instead, this paper argues that the amendment merely clarifies the situations that justify the use of the military to respond to domestic disorder. An analysis of the historical use of the Act and the Act's language indicates that justification for presidential action prior to the amendment focused on the extent, rather than the source of the domestic disorder. The changes made in October of 2006 provide explicit examples of situations that may lead to events of public disorder justifying the President's invocation of the Act's authority. In addition, political and historical limitations, along with limitations in the Act itself, will restrict presidential abuse of the power. Thus, the uproar over the recent changes to the Insurrection Act and the fears of martial law are unfounded."—Abstract.

"The article is a critique of the U.S. government's response to regional recovery following Hurricane Katrina, coupled with an argument that policies based on international standards would better serve the hurricane-stricken area. The author contends that part of the problem is that the legal framework for disaster relief, the federal Stafford Act, is insufficient for shaping recovery for catastrophic humanitarian crises that overwhelm state and local governments. Because the Act calls only for discretionary, intermittent federal efforts, and shields such efforts with broad legal immunity, it is a prescription for the sluggish and ineffective governmental action that has hamstrung the Gulf region's recovery.

"The author maintains that what is needed is a comprehensive recovery program akin to the post World War II Marshall Plan. International standards for humanitarian responses to disaster, specifically the United Nations Guiding Principles on Internal Displacement, serve as a policy framework for such a program. The Principles allow for recognition that a crisis on the scale of Katrina calls for a more robust, centralized, federally-led response that addresses the scope of the problem and the interdependency of its many facets.

"The article has five parts. First is an analysis of the situation in the region, focusing on the New Orleans area. Here the author identifies three categories of problems - the problem of return and rebuilding, focusing on private property and civic infrastructure; the problem of security, focusing on flood protection, levees, and wetlands; and the problem of government, focusing on inefficiency, incompetence and inadequate resource allocation.

"The article's second part analyzes the problem in the law. The Stafford Act is reviewed and judicial criticisms discussed. Part three of the article reviews the specific provisions of the Guiding Principles that apply to the Gulf Coast. The author considers the legal status of the Principles, concluding that while certain of the principles may be evolving into customary international law, they are not legally binding but rather intended as a general policy framework.

"In the fourth part of the article, the author recommends the following sixteen point "Marshall Plan for the Gulf" based on the Principles: 1. The federal government will assume primary responsibility for an integrated recovery effort. 2. All persons displaced or injured by the disaster have recovery rights. 3. Displaced persons willing to return have a right to return and their displacement will end as soon as possible. 4. Living conditions will be established that are materially sufficient to allow persons to return and remain. 5. The government will assist persons whose homes are recoverable to repair and rebuild, and must ensure access to decent and affordable housing. 6. Comprehensive, reliable flood protection measures will be taken, including strengthened levees and coastal wetlands. 7. Ineffective bureaucracies will be replaced by streamlined, efficient, effective and easily understood administrative processes for relief and recovery. 8. The military will be deployed for debris removal and rebuilding. 9. Personal property and possessions will be protected and disaster victims will be reasonably compensated for losses. 10. Gulf Coast residents will have access to health care. 11. The government will reopen schools and take other measures to ensure education for all children in stricken communities. 12. The government will take steps to increase economic opportunities in stricken areas, such as partnerships, incentives and assistance for businesses which reopen or locate in the region. 13. The right of evacuees to participate in politics and civic life must be ensured. 14. Storm victims will be included in recovery planning. 15. Anti-discrimination measures will be enforced to ensure that the disaster and recovery do not have a discriminatory effect. 16. The special needs of at risk groups will be met.

"In the fifth part of the article, the author posits that U.S. adoption of the Principles as the basis for international disaster recovery efforts forms a moral and political basis for their domestic application in the Gulf. This is demonstrated by formal U.S. policy promoting the Principles as well as actual U.S. implementation of the Principles in Iraq and in response to the 2004 tsunamis." —Abstract.

"With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Furthermore, since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority. The National Emergencies Act (50 U.S.C. 1601-1651) eliminated or modified some statutory grants of emergency authority, required the President to declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used, and provided Congress a means to countermand the President's declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report, which is updated as events require."—Summary.

"In the immediate aftermath of the terrorist attacks of September 11, 2001, President George W. Bush established the Office of Homeland Security and the Homeland Security Council (HSC). In his June 2002 proposal for a Department of Homeland Security, President Bush appeared to anticipate the continued operation of both of these entities. However, the Homeland Security Act of 2002, which mandated the new department, statutorily rechartered the HSC as an agency within the Executive Office of the President (EOP). Thereafter, the HSC disappeared from the public record, and its status today remains uncertain. Recently, some have called for the merger of the HSC with the National Security Council."—Summary.