BerkeleyLaw Library

"Hurricane Katrina revealed fundamental problems with our nation's ability to respond to natural disasters. Not only did Katrina overwhelm governments at all levels in their abilities to respond to the disaster, but it also revealed their inadequate emergency preparation and response plans. There was a failure among local, state and federal levels to effectively optimize assistance and resources coming from other states and the federal government.

"This paper advocates an amended Stafford Act to include three solutions that are crucial to strengthening national preparedness for future disasters. First, local jurisdictions and states should be required to develop comprehensive disaster preparedness and response plans, consistent with a national framework, that enable them to effectively manage complex disasters. Second, the federal government needs to harmonize its disaster-relief infrastructure and consolidate natural emergency preparedness and response functions in the Federal Emergency Management Agency within the Department of Homeland Security. Finally, the Stafford Act should include a contingency plan for a catastrophe so large it renders traditional emergency management impracticable.

"While these structural changes for national preparedness can be implemented by executive order as governmental reports and studies have suggested, this paper stresses the importance of enacting these recommendations in legislation. The Stafford Act is the touchstone of federal disaster relief. Updating the Stafford Act to include a national framework for disaster response, the federal infrastructure for disaster management under the leadership of DHS, and the framework for the nation's response to catastrophic incidents, will achieve clarity and permanency for all parties involved. Updating the Act as suggested will ensure that the country shall be primed and prepared for future disasters."—Abstract.

"This Article analyzes how the government's blame of the Posse Comitatus Act (PCA) for its late response to the Hurricane Katrina disaster was misplaced. Part I starts with a brief history of the military's role in domestic law enforcement and chronicles how, throughout history, standing armies have crept into civilian law enforcement. It discusses how for centuries, governments have treated their standing armies as necessary evils - depending on the military for national defense while at the same time fearing its power to oppress if improperly unleashed. In fact, the encroachment of federal troops on the voting rights of the Reconstruction South was the impetus for the passage of the Posse Comitatus Act (PCA) in 1878.

"Part II teases out the convoluted process of analyzing military action under the PCA. It lays out how courts interpret the statute as well as the constitutional, Congressional and common law exceptions to the PCA. Part III applies the PCA to the situation in New Orleans, concluding that the PCA was not implicated because the military's role was to provide food, water, medical care and transportation out of the city and not to enforce the law. This section also details the various sources of authority that would have permitted the use of the military in a law enforcement capacity in New Orleans immediately after Katrina.

"Lastly, the Conclusion discusses what the PCA means today and whether we still have a need for such a law. The author concludes that we do need a PCA-like law, but we need one that is more potent. We have traversed through a cycle of authority that gradually progresses from absolute civilian control of the military to virtual control of the military and then back again. We are on the upswing of this cycle, and we need a PCA with teeth in order to protect us from repeating history and from ending this chapter of increasing military authority in disaster."—Abstract.

This set of audio files contains presentations by Adam Doerr, Opening Remarks; Ben Depoorter: "Political Externalities & the Response of Government to Disasters"; Richard Schmalbeck and Ellen Aprill: "Disaster Relief, Tax Policy, and the Federal Action Imperative"; Commentaries by Arti Rai and Lawrence Zelenak; Jim Rossi: "State Executive Lawmaking in Crisis" Presentation and Q&A; Keynote Speaker: Dr. Robert Kadlec; "Risk Assessment and the Hazards of Hindsight" Discussion and Q&A with Matthew Adler, Douglas Kysar, and Thomas McGarity.

"Mayors acknowledge that more must be done at every level of government to make sure that cities, and the nation, are able to respond to the growing challenges of homeland security and emergency response. 'This new survey shows that we must further strengthen our partnership with the federal government to make sure that our domestic "first preventers" and "first responders" have the resources and training they need to succeed, and that all necessary federal support is ready in the event of a major disaster,' [Conference of Mayors President, Dearborn Mayor Michael] Guido said."—Press Release.