             Disaster Assistance and the Supremacy Clause

As an agency o f the United States, acting pursuant to a valid delegation of the President’s
  statutory authority to provide disaster assistance to states, the Federal Emergency
  Management A gency (FEMA) is not subject to state regulations or prohibitions which
  would impede the performance o f its federal functions. However, the Supremacy
  Clause cannot be relied upon by FEM A to shield it from all state regulation of or
  objections to its disaster relief activities.

                                                                                  June 26, 1981
  M EM O R A N D U M O PIN IO N FO R T H E G E N E R A L COUNSEL,
     F E D E R A L EM ERGEN CY M A N A G EM EN T AGENCY

   You have asked for our opinion whether a state other than the state
requesting assistance may, through enforcement of its laws and regula­
tions, prohibit or substantially frustrate actions of the Federal Em er­
gency Management Agency (FEM A ) necessary to provide disaster
assistance under the Disaster Relief A ct of 1974, 42 U.S.C. §§5121-
5202 (the Act). Your question envisions a situation in which FEM A, as
an incident to providing disaster relief in a state which has requested it
and for which the President has declared an emergency or major
disaster, deems it necessary to conduct activities either within or which
affect another state and w hich are objectionable to the latter state. You
characterize your request as “unavoidably general.” Treating it as gen­
eral, we conclude, in the abstract, that, under the Supremacy Clause,
U.S. Const., Art. VI, cl. 2, FEM A, as an agency of the United States, is
not subject to state prohibitions while administering disaster relief under
the Act, as authorized by Congress and the President.1 This conclusion,
as is your question, is unavoidably general and is subject to the caveats
discussed below.
   In broad terms, it has been established since the Supreme Court’s
landmark decision in McCuIloch v. Maryland, 17 U.S. (4 Wheat) 316
(1819) that “the states have no power . . . to retard, impede, burden, or
in any manner control, the operations of the constitutional laws enacted
by Congress to carry into execution the powers vested in the general
governm ent.” Id. at 435. From this rule has flowed the corollary that,
absent its consent, “the activities of the Federal Government are free

   1 A uthority to administer disaster relief under the Act is vested in the President The President has
delegated his authority to the D irector of FEM A. Exec. O rder No. 12*148 §4-203, 3 C.F.R. 412
(1979)

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from regulation by any state.” Mayo v. United States, 319 U.S. 441, 445
(1943). These rules are subject to nuances. F or instance, there is room
for the states to tax and regulate the conduct of federal contractors in
certain respects and under certain circumstances even though their
actions may have an economic impact that indirectly burdens procure­
ment by the United States. See generally, D. Weckstein, State Power
Over Intrastate Movement o f Federal Property, 11 Baylor L. Rev. 267
(1959) and cases cited therein at 273-81. But the Supreme Court has
uniformly struck down, as violative of the Supremacy Clause, the
direct, unconsented application by the states of their laws to the United
States, its instrumentalities, and its employees working within the scope
of their government employment. E.G. Hancock v. Train, 426 U.S. 167
(1976); Mayo v. United States, supra; Arizona v. California, 283 U.S. 423
(1931); Johnson v. Maryland, 254 U.S. 51 (1920); Ohio v. Thomas, 173
U.S. 276 (1899). We believe, based on this case law, that state attempts
to regulate directly or prohibit the conduct of activities by FEM A and
its employees (and other federal agencies and employees working at the
direction of FEM A ) deemed necessary to provide effective disaster
relief under the Act would likewise violate the Supremacy Clause. A
similar rule applies with respect to state regulation of the particulars o f
the performance of functions by contractors working directly under the
orders of and to the specifications of FEM A. Leslie Miller, Inc. v.
Arkansas, 352 U.S. 187 (1956); Public Utilities Commission o f California
v. United States, 355 U.S. 534 (1958).
   An argument can be advanced that the general rules concerning the
intergovernmental immunity of the United States and its instrumental­
ities under the Supremacy Clause should not apply with full force to
the rendering of disaster assistance under the Act by FEM A. The
premise of this argument is that, in providing disaster assistance within
a particular state at the request of that state, FEM A is simply acting as
an instrumentality of the state and is performing a state, rather than a
federal, function. This being the case, the argument runs, its activities
should not be regarded as immune from regulation by another state
under the Supremacy Clause any more than would be the activities of
the requesting state. We reject the premise.
   We harbor no doubt that it is within the constitutional competence of
the Congress, by law, to make the funds, equipment, expertise, and
personnel of the United States available to supplement the efforts of the
several states in providing disaster assistance to save lives and protect
property and the public health and safety. It is also within the compe­
tence of Congress to place responsibility for the execution of that law
in a federal official or instrumentality. When it does so, the execution o f
the law by the responsible official or agency is no less a federal activity
than was the delivery of the mail in Johnson v. Maryland, supra, the
operation of a bank in McCulloch v. Maryland, supra, or the sale of
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fertilizer in M ayo v. United States, supra. Congress enacted the Disaster
Relief A ct of 1974 and entrusted the execution of that law to the
President. The President has validly delegated his authority under the
A ct to the D irector of FEM A . When FEM A acts under that delegation
to provide disaster relief, it is performing a federal function pursuant to
a law validly enacted by Congress. T hat law is a part o f the supreme
law o f the land and, under the Supremacy Clause, the states may not
prohibit or, by regulation, significantly burden the manner of its execu­
tion w ithout the consent o f the United States.
   T hat the principles o f intergovernmental immunity under the Su­
prem acy Clause are applicable to state prohibitions or attempted regula­
tion of F E M A ’s disaster assistance activities under the Act does not
mean that FEM A may totally ignore state law in all cases and on all
subjects.
   The Supreme Court has stated, in considering the immunity from the
state law o f government employees engaged in government business,
that “It very well may be that, when the United States has not spoken,
the subjection to local law would extend to general rules that might
affect incidentally the m ode of carrying out the employment—as, for
instance, a statute or ordinance regulating the mode of turning at the
corners of streets."Johnson v. Maryland, supra, 254 U.S. at 56 (dictum).
O ther courts have refused to excuse, on Supremacy Clause grounds,
federal employees who violated routine state (or local) traffic laws from
prosecution when the violations were not necessary to the accomplish­
ment of their federal functions. E.g., People o f Puerto Rico v. Fitzpatrick,
140 F. Supp. 398 (D.C. P.R . 1956); People v. Don Carlos, 47 Cal. App.
2d 863, 117 P.2d 748 (1941); Commonwealth v. Closson, 229 Mass. 329,
118 N.E. 653 (1918). Cf. United States v. Hart, 1 Pet. C.C. Rep. 390
(1817) (local constable w ho arrested postal employee for the 1817
version of speeding is not guilty of obstructing the mail, because the
federal employee arrested was subject to local safety regulations, Con­
gress not having affirmatively or by fair implication immunized mail
carriers from such regulations); 5 Op. A tt’y Gen. 554 (1852) (trains
carrying U.S. mail are subject to municipal speed regulations). Compare
M ontana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (in an emer­
gency related to snow removal and flooding, a soldier ordered to use a
trailer with defective brakes and signal lights is immune from state
prosecution); State v. Burton, 41 R.I. 303, 103 A. 962 (1918) (dispatch
driver for the Navy who, in time of war, is ordered to proceed “with
all possible dispatch” is justified in violating state speed law). In light of
this case law, caution dictates that federal employees and contractors
should, to the extent possible, obey state traffic laws and other state or
local laws, the violation o f which is not necessary to the accomplish­
m ent o f the federal function. However, in exigent circumstances in
w hich violations of such laws are necessary to permit FEM A to per­

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form essential disaster relief activities under the Act, the federal interest
would, we believe, prevail. Montana v. Christopher, supra; State v.
Burton, supra. 2
   We would also mention without elaboration two other circumstances
in which the Supremacy Clause could not be relied upon by FEM A to
shield it from state objections to its disaster relief activities. The first is
the case in which proposed disaster relief activity would violate a
federal law or regulation binding on FEM A and enforceable against it
by the state. The second is the case in which the proposed disaster
relief activity would consist of conduct which Congress has specifically
subjected, although performed by the federal government, to state
regulation.3
  As stated, this opinion is general. We are prepared, at your request,
to address more specific questions as they occur.

                                                        T   heodore      B. O l s o n
                                                       Assistant Attorney General
                                                        Office o f Legal Counsel




   2F or an interesting discussion, in a negligence case, of the relationship between the Supremacy
Clause and state traffic regulations, see Neu v McCarthy, 309 Mass. 17, 33 N .E 2d 570 (1941).
   3 We mention these possibilities only as a cautionary note We have no particular federal statutes or
circumstances in mind. We note that the standard for judging whether Congress has subjected federal
installations or activities to state regulation is a strict one.
                  Because of the fundamental importance of the principles shielding federal instal­
          lations and activities from regulation by the States, an authorization of state regulation
          is found only when and to the extent there is “a clear congressional mandate,"
          "specific congressional action" that makes this authorization of state action “clear and
         unambiguous.*'
Hancock v Tram, supra, ,426 U.S at 179 (footnotes omitted).
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