Topic 1 Script: Sources and Hierarchy of Federal Law Announcer: Welcome to FEMA Law Talk – a Podcast series produced by the FEMA Office of Chief Counsel. The purpose of this podcast series is to increase FEMA’s ability to learn and innovate as an organization through promoting a better understanding of the legal authorities that support FEMA’s efforts to reduce loss of life and property and protect the nation from all hazards. Now, here is your host, Heather Strachan. Host: Hi and welcome to the first podcast of FEMA’s Law Talk Podcast series. My name is Heather Strachan and I am here with Brad Kieserman, FEMA’s Chief Counsel. This week we are going to discuss the different sources of law that apply to the delivery of FEMA’s mission. After listening to this podcast, you should be able to identify, differentiate, and categorize the different types of legal authorities. Brad, what are the various sources of law that apply to FEMA’s mission? Brad: Well, lawyers like to begin with definitions, so let’s start by defining what we mean by “law.” The U.S. Supreme Court defines law as a body of “rules of action or conduct prescribed by controlling authority, and having binding legal force.” Host: So, a law is basically an “enforceable rule”, right? Brad: Exactly, Heather! And, there are four sources of Federal law in the United States: the U.S. Constitution, federal statutes, federal administrative law (which we often call rules or regulations), and court made law or common law. In addition to these sources of Federal law, there are executive orders and other directives, publications, guidance, and policy statements issued by the executive branch of the Federal government that may be binding on FEMA and affect the way we do our mission. Host: So, of the four sources of Federal Law, the legal authority at the top of the hierarchy is the U.S. Constitution. Can you tell us why and how the Constitution affects FEMA’s mission? Brad: Well, people often refer to the U.S. Constitution as the “Supreme Law of the Land” because it supersedes all other laws or rules. The Constitution prescribes the rights of individuals in relation to the state, and the relationship between the federal government and the states. It also defines the powers and authority of the Federal and State governments and delineates the kinds of laws that the federal Congress and the state legislatures can pass. From an emergency manager’s perspective, the Constitution is the starting point for understanding the roles and responsibilities of every level of government involved in response, recovery, preparedness, mitigation, and protection—even though none of those words, except “protect,” ever appear in the Constitution! Host: I’ve heard you say that the United States is a government of “enumerated powers.” What does that mean, Brad? Brad: Well, a government of enumerated powers means that Congress, and the other two branches of the Federal government—the executive and judicial branches—can only exercise those powers given in the Constitution. Generally, it’s States, not the Federal government, that have the authority to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants. We call that authority “police powers,” and under the 10th Amendment to the Constitution, the powers prohibited from or not delegated to the Federal government are reserved to the states respectively, or to the people. This means that in order for the Federal government to act, it must derive its power from a provision in the Constitution or a properly created statute. Any power not specifically reserved for the Federal government in the Constitution is within the jurisdiction of the State. Host: Why is this concept of enumerated powers so important to emergency management? Brad: It is extremely important for FEMA—our business is emergency management, but the Constitution vests most emergency management powers in the States, not the Federal government. Think about evacuations, for example—that’s a classic police power: It is the authority to compel someone, for reasons of public safety, to leave their home and many of their belongings on short or no notice with the possibility they might never return. How much authority does the Federal government have to order evacuations? Not much—it’s mostly limited to Federal buildings and Federal property because the Constitution does not grant the Federal government general police powers—those are reserved to the States. So, this concept of “enumerated powers” is also very important to us because it means that FEMA, as part of the executive branch of the federal government, must be able to point to a specific legal authority, from a statute, regulation, or executive order, as the basis for any action we take. Host: Ok, Brad, the U.S. Constitution establishes the framework, what’s next in the Federal hierarchy? Brad: Federal statutes. Host: What’s a statute? Brad: A statute is a formal written enactment of a legislative body—in the case of Federal statutes, that legislative body is the U.S. Congress. Congress has the sole authority to enact Federal legislation and derives its power to enact statutes from the Constitution. A couple of important points to distinguish the Constitution from Federal statutes: First, Federal statutes are more specific than the provisions in the U.S. Constitution and are often written and enacted by Congress as solutions to some big problem or issue. For example, Congress concluded that the losses caused by Hurricane Katrina and other disasters in 2005 were due, in part, to deficiencies such as questionable leadership decisions and capabilities, organizational failures, overwhelmed preparation and communication systems, and inadequate statutory authorities. So, Congress enacted the Post-Katrina Emergency Management Reform Act of 2006, also known as PKEMRA, to reorganize FEMA, and enhance and clarify the mission, functions, and authorities of the Agency. Second point: statutes can be civil or criminal in nature. Most of the statutes we deal with at FEMA are civil in nature, but there is a special criminal statute that applies to people who commit fraud, waste, or abuse in connection with major disaster or emergency benefits. And, third point: statutes are easier to amend than the Constitution. Host: So, the U.S. Congress enacts statutes that provide FEMA with legal authorities and obligations. Where does someone find all of these statutes? Brad: Great question! All of the general and permanent federal laws of the United States are compiled and codified in books called “The Code of Laws of the United States of America” (also called the “United States Code,” “U.S. Code”, or U.S.C.). There are several very good internet sources for the United States Code that everyone can access for free. Host: How many Federal statutes apply to FEMA? Brad: Lots! The Federal statutes that apply to FEMA include appropriations acts, which are the statutes that give agencies their funding, and authorizing statutes, which impose responsibilities on the Federal government in carrying out its authorities. There are statutes that apply to our mission, statutes that apply to hiring and firing personnel, statutes that apply to contracting—the list is very long. But, I always start with the Homeland Security Act of 2002, as amended, when discussing statutes that apply to FEMA—that’s the statute that created the Department of Homeland Security. It was amended in 2006 by PKEMRA. Most of the Homeland Security Act and PKEMRA authorities are in title 6 of the United States Code—sometimes people will say, “6 U.S.C.”—which is entitled “Homeland Security.” In contrast, the Stafford Act is codified at title 42 of the U.S. Code (or 42 U.S.C.), which is entitled “The Public Health and Welfare.” FEMA implements statutory authorities that are located throughout the United States Code. We will discuss many of these statutes in later FEMA Law Talk podcasts. Host: You just used the word “implement,” Brad. I understand that FEMA implements a lot of its statutory authority through something called Federal regulations. What are Federal regulations and what’s the difference between a Federal statute and a Federal regulation? Brad: Great questions, Heather! In some cases, Congress has authorized many executive branch departments and agencies, including FEMA, to basically make laws relevant to their responsibilities and within their area of expertise. While they’re not statutes, these laws are referred to as rules or regulations. For example, Congress has authorized FEMA to prescribe regulations to carry out provisions of the Stafford Act and the National Flood Insurance Act. These Federal regulations generally have the same force and effect as statutes, and they bind agency officials who do not otherwise have the discretion to violate them. The process of creating and enacting Federal regulations is called the “rulemaking” process. Host: Where does someone find Federal regulations? Brad: You find federal regulations in the cleverly named, “Code of Federal Regulations,” also known as the CFR. Just like the United States Code, the Code of Federal Regulations is available online and is word searchable. Host: So, Federal regulations are rules created by executive branch agencies and departments and Federal statutes are laws created by the U.S. Congress. Can you explain the relationship between regulations and statutes? Brad: Statutes are the actual laws passed by Congress; regulations are the "who, what, when, where, and how" involved in administrating and/or enforcing the statute. Because it is beyond Congress's ability to be experts in every field concerning which it may be called upon to legislate, regulations are intended to elaborate on the working details of a statute. So, a regulation implements the policy adopted in a statute, often to ensure uniform application of the law. But, remember, Congress must give FEMA the authority to make and implement regulations in an enabling statute—FEMA can’t just regulate anything it wants. So, it’s not surprising, then, that a Federal regulation cannot contradict a statute; it is simply a rule for implementing the statute. Therefore, if there is conflict between the two, the statute will supersede the regulation. Host: What about judges, courts, and Federal case law? Where does all that fit into this scheme? Brad: To answer that, we need to take a quick detour into American history: our legal system has its roots in the English common law system. Historically, English grand juries, kings, and magistrates catalogued their decisions according to the type and subject matter of the case. When subsequent cases came before them, they reviewed earlier decisions to determine whether a previous case was sufficiently similar to the current one. If so, they applied the principles set out in the earlier decision to the new decision. This body of principles came to be known as the common law. The common law is therefore often referred to as court– or judge– made law. Many of the principles established in English common law continue to be applied by American courts today. In addition, the doctrine of stare decisis, which is Latin for “let the decision stand,” remains. That is, where a judge interprets a law, subsequent judges will often be bound by that interpretation through the process of precedence. Whether a judge is bound by a previous decision will largely depend on the jurisdiction of the court. It is important to note that courts only resolve specific disputes between specific parties, and judges make law by applying and interpreting the law on a case by case basis. You can see that’s different than what Congress does when it makes laws applicable to the entire nation, or what the executive agencies do when they make regulations generally applicable to the future conduct of the public. So, Federal case law is created when Federal Courts issue decisions on cases that have precedential value, that is, where the issues are similar. This law generally interprets other relevant legal authority. FEMA must also be mindful of how Federal case law will effect its implementation or interpretation of other legal authorities. For example, depending on the facts of a case, a court could interpret FEMA’s statutes and regulations in ways that empower us to perform our mission, or in ways that constrain our mission performance. Lawyers refer to this as “Bad facts make bad law.” This is why we require FEMA attorneys to support FEMA decision makers throughout the policy development and decision making processes—so, we don’t have to do the “wet cleanup on aisle 3” in court after the fact. Host: Ok, so far we have discussed the four sources of Federal law: The Constitution, Federal statutes, Federal regulations, and Federal case law. What other legal authorities apply to FEMA? Brad: One important source of Federal legal authority for FEMA that we haven’t talked about yet is executive orders. Executive orders guide officers and agencies of the executive branch in managing the operations within the Federal Government itself—they don’t generally have the full force of law as applied to private parties the way that Federal statutes and regulations do. The President, as head of the executive branch, can issue executive orders, directives, and other forms of direction to the executive branch that are not otherwise in conflict with the Constitution or Federal statutes. Executive orders are one tool available to the President in taking direct action—that is, without relying on additional legislative or judicial action. Other direct action tools include proclamations and presidential policy directives (or PPDs, NSPDs, HSPDs—each Administration uses a different name). Host: What are some executive orders that effect FEMA? Brad: Interestingly enough, FEMA was created by an executive order in 1979. It wasn’t until 2006 that Congress enacted a permanent statute establishing the Agency and setting forth its roles, missions, and authorities in detail. Floodplain Management is also largely a creature of an executive order, as are the requirements of the Public Alert and Warning System. And, then there are presidential policy directives. For example, Homeland Security Presidential Directive 5 or HSPD-5 established a single, comprehensive national incident management system designed to cover the prevention, preparation, response, and recovery from terrorist attacks, major disasters, and other emergencies. More recently, Presidential Policy Directive-8 or PPD-8 established policy and tasks for national preparedness. Host: Where can someone find executive orders and presidential directives, Brad? Brad: Not quite as easy as statutes and regulations, but a good place to start is the Compilation of Presidential Documents collection on the U.S. Government Printing Office’s webpage. Host: Any other authorities we should discuss? Brad: Well, Heather, unless there’s discretion to do otherwise, FEMA must also comply with the Department of Homeland Security’s and FEMA’s own directives and manuals, as well as certain other directives applicable across most of the Federal government from the Office of Personnel Management, the Office of Government Ethics, the Department of Justice Office of Legal Counsel, and the Office of Management and Budget, just to name a few. Host: So, to review, we have discussed the U.S. Constitution, Federal statutes, Federal regulations, Case Law, Executive Orders, and Policy directives and the relationship among all of these legal authorities. Do you have any closing comments, Brad? Brad: Just a reminder, Heather. Our discussion today has focused on the sources and hierarchy of Federal law. We haven’t discussed State law, which is just as critical in our Federal system. States may generally legislate on all matters within their territorial jurisdiction—this is that “police power” we talked about earlier. Police power for the States doesn’t arise from the Constitution—it’s an inherent attribute of the states’ territorial sovereignty. The Constitution does, however, provide certain specific limitations on that power, and the “supremacy clause” of the Constitution provides that Federal law prevails over state law if there is a conflict between the two. Also remember that, just like the Federal system has a hierarchy of authorities, the State system does, too. The hierarchy in the State system is: The United States Constitution whenever a federal question is involved, the State Constitution, State statutes, State regulations issued by state administrative agencies, and State Case Law. Given that much of our work at FEMA focuses on supporting the Governors and the States, understanding State law is often essential to FEMA mission accomplishment. Host: Thank you for taking the time to speak with us today, Brad. That wraps up the first of FEMA’s Law Talk Podcast Series. We have discussed the different sources of Federal law that apply to the delivery of FEMA’s mission, and the hierarchy of those laws. After listening to this podcast, you should be able to identify, differentiate, and categorize the different types of legal authorities. We will deliver a podcast to you on a different topic every other week. Please subscribe to the RSS feed to receive automatic updates. Thank you and have a wonderful day. Announcer: This has been a production of FEMA’s Office of the Chief Counsel in conjunction with the Office of External Affairs. If you have any questions or would like more information, please contact the podcast series program manager at FEMA-OCC-Podcast@fema.gov. Thank you and have a great day!