Chapter Chapter 2
Section Federalism
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Federalism
The Founders created a constitutional framework in which each State, upon ratification of the Constitution, ceded some of its powers to the Federal government to create one united yet limited central government.2 The Constitution sets forth the specific and delegated powers that delineate Federal and State roles. It tells us which branches and offices will be part of the Federal government, what powers they may exercise, and what limitations constrain them.3 The Constitution also respects State powers by reserving those powers not given to the Federal government to the States or to the people.4 Our Federal system provides a structure to enable coordination between the United States government and State governments to create a balance that respects the sovereignty of both entities.
The United States has long operated on the general premise that governments exist to do those things that individuals, alone or in free and voluntary association (e.g., families and charities), are not best positioned to do for themselves, such as ensuring public safety and providing law enforcement. Following these principles, the Founders created the Federal government to do those things that States cannot or should not do individually, such as defending the Nation, conducting foreign relations, and ensuring open and free interstate commerce.5
Accordingly, State and local governments assume the first and foremost line of defense against civil disturbance and threats to public safety. The Federal government guarantees its assistance to protect the States in their existence as representative republican governments from the external threat of invasion or attack, and against internal subversion or rebellion.6 Federal laws reinforce the concept that the Federal government should respect State sovereignty. For example, section 331 of the Insurrection Act requires the State legislature or, in its absence, the State governor, to make a formal request of the Federal government before the President may send in Federal troops to assist State efforts to restore order.7
The role of the Federal government in disaster response has evolved significantly throughout the past 200 years.8 In 1803, in what is widely seen as the first instance of Federal intervention in a disaster scenario, Congress approved the use of Federal resources to assist the recovery of Portsmouth, New Hampshire, following a devastating urban fire.9 Between 1803 and 1950, the Federal government intervened in over 100 incidents (earthquakes, fires, floods, and tornados), making Federal resources available to affected jurisdictions.10 These interventions were limited and were delivered in an ad hoc manner without an established Federal role or coordinated response plan.11 The Federal government also quickly recognized the role that private non-profit organizations can play. In 1905, Congress chartered the American Red Cross as a charitable organization to provide disaster relief support during crises. The value of this decision was demonstrated a year later, when the Red Cross provided key assistance during the San Francisco Earthquake and Fire of 1906.12
During the Great Depression, the approach of the Federal government became more proactive. For example, Congress endowed the Bureau of Public Roads with the authority to provide continuous grants to States for the repair of disaster-damaged infrastructure and charged the Army Corps of Engineers with the task of mitigating flood-related threats.13 This piecemeal legislative approach was eventually replaced by the Civil Defense Act of 1950—the first comprehensive legislation pertaining to Federal disaster relief.14
In 1952, President Truman issued Executive Order 10427, which emphasized that Federal disaster assistance was intended to supplement, not supplant, the resources of State, local, and private sector organizations.15 This theme was echoed two decades later in President Nixon’s 1973 report, “New Approaches to Federal Disaster Preparedness and Assistance.” The report clearly stated that, “Federal disaster assistance is intended to supplement individual, local and state resources.”16
Today, the centerpiece legislation for providing Federal aid in disaster relief, the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), reinforces the principle that response efforts should first utilize State and local resources.17 The Stafford Act establishes a process for State governors to request assistance from the Federal government when an incident overwhelms State and local resources.18 To provide and coordinate Federal aid to the people and the State and local governments impacted by a disaster using all Federal agencies, the Act authorizes the President to issue major disaster or emergency declarations, and to appoint a Federal Coordinating Officer (FCO) to coordinate the administration of Federal relief. The Stafford Act is frequently invoked in disaster and emergency response. Since 1974, an average of thirty-eight major disasters have been declared annually. In 2004, a near record disaster season, the President issued sixty-eight major disaster declarations and seven emergency declarations.19
In a 21st Century world marked by catastrophic terrorism and natural disasters, the Federal government must build upon our foundation of disaster relief and prepare for the larger role we will be called upon to play in response to a catastrophic event.
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