Emergency and disaster response: The federal statutory framework

Note: The following constitutes a summary of my presentation at the 2008 annual meeting of the Association of American Law Schools, in a panel called "The Katrina Experience: Why Federalism Broke Down." It is derived from chapter 2 of Daniel Farber & Jim Chen, Disasters and the Law: Katrina and Beyond.

Within the statutory framework defining the federal role in emergency and disaster response, two statutes loom large:

1. The Stafford Act, 42 U.S.C. §§ 5121-5206.
2. The Posse Comitatus Act, 18 U.S.C. § 1835.

This summary identifies some of the leading issues that arise in interpreting these statutes.

The Stafford Act

Section 401 of the Stafford Act, 42 U.S.C. § 5170, enables the President to declare a major disaster. Section 501, id. § 5191, enables the President to declare an emergency. Both sources of authority require a request by the governor of an affected state. Short of either declaration, the President may authorize up to ten days' worth of essential federal assistance in the immediate aftermath of an incident that may ultimately qualify as a major disaster or an emergency. Id. 5170b.


A major disaster declaration by the President authorizes two types of federal disaster assistance:

1. General federal assistance under section 402(a) of the Stafford Act, 42 U.S.C. § 5170a.
2. Essential federal assistance under section 403, id. § 5170b.

For its part, a declaration of an emergency by the President authorizes emergency assistance under section 502, id. § 5192.

Major disaster relief and emergency relief differ in two crucial respects. First, the statutory definition of an emergency is a bit broader. The Stafford Act defines major disaster as

Any natural catastrophe (including any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of states, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

42 U.S.C. § 5122(2).

By contrast, an emergency is defined as

any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.

Id. § 5122(1).

Observe the use of the word catastrophe in both definitions. A "major disaster" is, in the first instance, a "natural catastrophe." An "emergency" presents an "occasion or instance" in which "federal assistance is needed . . . to lessen or avert the threat of a catastrophe." Expressio unius est exclusio alterius? If so, the definition of a "major disaster" may not cover a non-natural event, such as an electronic attack not attributable to "fire, flood, or explosion" or the deliberate release of a biological agent.

The second crucial respect in which an "emergency" differs from a "major disaster" is that the President may declare an "emergency," but not a "major disaster," if "[p]rimary responsibility rests with the United States because the emergency involves a subject area for which . . . the United States exercises exclusive or preeminent authority." In exercising this sort of emergency power, the President is directed to "consult" the affected governor, "if practicable," but the declaration ultimately does not require a governor's consent.

The Posse Comitatus Act

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1835.

Potential violations of the Posse Comitatus Act are tested according to three judicial tests:

1. Whether civilian law enforcement officials have made "direct active use" of military personnel.
2. Whether military involvement has "pervaded the activities" of civilian authorities.
3. Whether the military has become so entangled in civilian law enforcement as to subject citizens to the "exercise of military power that is regulatory, proscriptive, or compulsory in nature."

In short, the military may play a "passive" role in law enforcement, such as providing logistical support to civilian police.

The Act does not mention the Navy (including the Marine Corps). Practically speaking, these branches are covered by the Act, thanks to Department of Defense regulations. The Act applies to members of the Reserve who are active or on inactive duty training in a Title 10 duty status. Courts have declined to give the Posse Comitatus Act extraterritorial effect.

Statutory exceptions to the Posse Comitatus Act include the Insurrection Act, 10 U.S.C. §§ 331-334, which authorizes the President to suppress "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States." During the Pullman Strike of 1894, a federal court defined insurrection as "a rising against civil or political authority, the open and active opposition of a number of persons to the execution of law in a city or state." The Insurrection Act was used by President George H.W. Bush to quell unrest in the Virgin Islands after Hurricane Hugo in 1989 and in response to 1992's Rodney King riots in Los Angeles.

Department of Defense regulations also recognize two nonstatutory exceptions to the Posse Comitatus Act:

1. The military retains an inherent emergency power to take "[a]ctions . . . under the inherent right of the U.S. Government" as "a sovereign national entity . . . 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."


2. Commanders may lend resources and assistance to civilian authorities when a disaster exceeds the capacity of local authorities and demands immediate action "to prevent human suffering, save lives, or mitigate great property damage." This authority appears to arise from the historical practice of the armed forces. During the 1906 San Francisco earthquake and fire, the commander of the Pacific Division directed all troops under his command to help civilian police in efforts to stop looting, fight fires, and protect federal buildings.