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Homeland Security
ABOUT THE ISSUE
The tragedies of September 11 and Hurricane Katrina have taught us that disasters can strike anywhere and anytime. While the debate over governmental responsibility in such disasters continues, a consensus has emerged that advanced thought and planning by all governmental entities saves both lives and money, and that by mitigating the impact of disasters, we hasten recovery. Because the role of state Attorneys General in preparing for and reacting to disasters remains underexplored, the CLS AG Program is assembling resources to assist those seeking to capitalize on the successes and avoid the mistakes of the past. As always, the Program takes no position on the role of AG’s, but is anxious to make information available to those in the states who are attempting to chart their paths.
RELATED ARTICLES
BACKGROUND
Indiana AG Greg Zoeller joined other groups concerned with SB 1070 in announcing support for “rational immigration reform principles.” This was in response to a proposed measure going through the state legislature that would allow law enforcement officers to ask for proof of immigration status if they were suspected of being in the country illegally. Furthermore, the AG explained that immigration should not be considered a state issue, but solely a federal one.
Utah State Attorney General Mark Shurtleff to Speak at Immigration Rally (April 20, 2011)
Utah Attorney General Mark Shurtleff is set to speak at an immigration rally on April 22 in St. George Utah, a city located in the southwestern part of the state. Jon Thomas, the organizer of the rally, explained that the current immigration debate and the events taking place in Arizona are creating racial tensions against the Latino and immigrant community. The purpose of the event, he said, was to offer the Latino community a voice. Mr. Shurtleff pointed to Utah’s recently passed guest worker program bill as model for federal legislation.
The memo above by David Flanagan identifies many of the issues a State Attorney General must address during a natural or man-made catastrophe, including: State/Federal Relations, Preparation, Public Security, Criminal Justice, Public Health, Procurement, Consumer Protection, Environmental Law, Fraud, and Recovery.
David T. Flanagan has served as an Assistant Attorney General of Maine followed by a successful legal and corporate career. Under U.S. Senator Susan Collins, David was appointed Majority General Council of the Katrina Investigation for the Committee on Homeland Security and Governmental Affairs where he helped draft the committee’s report, Hurricane Katrina: A Nation Still Unprepared.
At the 5th Annual Hanley Leadership Forum, held June 14th and 15th at Bowdoin College in Brunswick, Maine, David Flanagan, who headed the U.S. Senate Homeland Security Committee’s review of the response to Hurricane Katrina, spoke on lessons learned from the disaster that will enable the country to better manage natural and man-made disasters.
Related: Summary of Collins-Lieberman Homeland Security Grant Enhancement Act of 2005
SCHOLARLY ARTICLES
The article by Mr. Rossi recognizes the previous failures of state executive branches during the September 11 terrorist attacks and during the Katrina disaster and posits that a wholly different approach should be taken when other crises of similar magnitude emerge. The article seeks to empower state executives to address federal and regional goals without any previous authorization from the state legislature.
By E.L. Gaston, Harvard Law & Pol. Rev., Vol. 1, Number 2 (Summer 2007)
In an interesting counterpoint to arguments for increased state preparedness, Gaston asserts that despite the creation of the Department of Homeland Security, the Bush Administration continues to rely upon a federalist system of response to disasters and terrorism. The article argues that restrictions on federal involvement have contributed to systematic weaknesses including uneven implementation of national priorities, “unfunded mandates,” poor information flows between the different levels of government, and poor coordination during actual crisis periods. “Federalism preferences must take a backseat to the country’s immediate need for a functional preparedness and response system,” says Gaston.
This study examines the roles of specific state attorneys general in the United States and assesses their degree of involvement in promoting and sustaining homeland security. This paper begins with a general overview of attorneys general, the National Association of Attorneys General (NAAG) and the Advisory Commission on Intergovernmental Relations (ACIR). Then, this paper provides a section on the contributions that the state attorneys general make to homeland security in the states of New Jersey, New York, and Florida. What comes afterwards is an assessment of the possibility of an increased effort and participation from these state governments to sustain homeland security. This paper ends with a discussion that also offers suggestions for future research.
This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state’s borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature—a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional goals during times of crisis. It recommends an approach for state legislatures as they consider state emergency management statutes, as well as for Congress as it considers national emergency management legislation.
Student Articles:
Role of AG Before, During and After a State of Emergency
Several of James Tierney’s law students have written on the role of State Attorneys General during a state of emergency. See essays below.
Awerdick, Megan
Awerdick’s paper begins with an evaluation of the relationship between governors and attorneys general in formulating emergency management plans by examining the comprehensive plans of Arizona and Montana. Following this comparison, the author concludes that attorneys general must advise governors and relevant state agencies during the crafting of state emergency management plans. Awerdick then argues that by coordinating charities and charitable aid, attorneys general can expand their office’s role following a disaster independent of a detailed emergency management plan.
Khan, Omar A.
Through an examination of the 2004 Flu Vaccine Shortage and its culmination in the price gouging cases filed by the state attorneys general, Omar Khan argues that state attorneys general are uniquely suited to deter unconscionable pricing during emergencies. Citing the ineffectiveness of private enforcement in deterring unconscionable pricing practices, and the lack of federal presence in this realm, Khan asserts that state attorneys can extend their already broad consumer protection powers into the domain of price unconscionability. The analysis suggests that Attorneys General play an instrumental, market-reinforcing role by publicizing and acting on fairness norms, and that such public accountability for businesses is critical to the functioning of a “free” market.
Lewis, Amanda
In this article, Lewis asserts that state attorneys general can play a vital role in maintaining the rule of law and aid in the effective management of a state-wide or local emergency. The article first identifies ways an AG can assist the governor during a state of emergency, namely enforcing anti-price gouging laws and exerting investigative pressure, providing legal advice to emergency responders, declaring public support, and regulating and coordinating charity relief efforts. However, Lewis also argues that AG’s not only have the power, but the obligation to sue the governor in cases where he or she unlawfully exercises emergency powers, citing the AG’s common law roots and several recent decisions from courts in California. In her conclusion, Lewis advocates incorporating AG’s into state emergency management plans as both a partner to, and an intra-branch check on, the state’s chief executive.
Weiner, Courtney
"Eye of the Storm: What State Attorneys General Can Do before and After a Natural Disaster." (Spring 2006)
This essay demonstrates that state attorneys general must carefully balance their wide-ranging abilities, both within and outside the scope of their traditional powers, to help citizens before and after a disaster. On one hand, attorneys general must use the full extent of their informal, investigative, and criminal powers to protect the interests of their citizens and try to resolve post-disaster problems. However, given experiences in Minnesota and Missouri, Weiner argues that beyond these efforts, attorneys general should initially make use of the expertise vested in the insurance commissioner. The author argues that only when this proves clearly insufficient should attorneys general act to defend the public interest. The paper concludes that the best approach involves strong, preexisting professional relationships and measured deference: enough to guarantee that all interests are adequately considered and state resources are properly used, but not so much that the public interest suffers.
NEWS ARTICLES
US Airways Flight 1549's safe landing in the Hudson River in January served as a real-world test of the disaster response system put in place after the September 11 attacks.
AG Bill McCollum warns citizens to beware of fraudulent charities in wake of Hurricane Dean.
RESOURCES
In order to help the offices of state AG's plan for and deal with Disasters, NAAG has compiled useful outlines and checklists. Checklist topics include: The First 48 Hours, Public Information Emergency Response Call Tracking, and Needs Assessment for Crisis and Emergency Risk Communication. The document also includes Disaster Planning Outlines for many divisions of the AG office, including: Consumer Protection, Criminal Law, Cybercrime, Environment, Legislative, Office Facilities, and lastly a Post-Disaster Planning Checklist.
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