Disaster Assistance and the Supremacy Clause

As an agency of 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 Agency (FEMA) is not subject to state regulations or prohibitions which 

would impede the performance of its federal functions. However, the Supremacy 

Clause cannot be relied upon by FEMA to shield it from all state regulation of or 

objections to its disaster relief activities.

June 26, 1981

M EM ORANDUM OPINION FO R TH E GEN ERA L COUNSEL, 

FE D E R A L EM ERGENCY M ANAGEM ENT AGENCY

You have asked for our opinion whether a state other than the state 

requesting assistance may, through enforcement of its laws and regulations, prohibit or substantially frustrate actions of the Federal Emergency Management Agency (FEM A) necessary to provide disaster 

assistance under the Disaster Relief Act of 1974, 42 U.S.C. §§5121- 

5202 (the Act). Your question envisions a situation in which FEMA, 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 which are objectionable to the latter state. You 

characterize your request as “unavoidably general.” Treating it as general, we conclude, in the abstract, that, under the Supremacy Clause, 

U.S. Const., Art. VI, cl. 2, FEMA, 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 

government.” 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 Director of FEM A. Exec. Order 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. For 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 procurement 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 of 

the performance of functions by contractors working directly under the 

orders of and to the specifications of FEMA. Leslie Miller, Inc. v. 

Arkansas, 352 U.S. 187 (1956); Public Utilities Commission of 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 instrumentalities under the Supremacy Clause should not apply with full force to 

the rendering of disaster assistance under the Act by FEMA. 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 competence of Congress to place responsibility for the execution of that law 

in a federal official or instrumentality. When it does so, the execution of 

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 Mayo 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 Director 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. That law is a part of the supreme 

law of the land and, under the Supremacy Clause, the states may not 

prohibit or, by regulation, significantly burden the manner of its execution without the consent o f the United States.

That the principles of intergovernmental immunity under the Supremacy Clause are applicable to state prohibitions or attempted regulation of FEM 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 of 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 mode 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). 

Other 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 accomplishment 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 who 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, Congress not having affirmatively or by fair implication immunized mail 

carriers from such regulations); 5 Op. Att’y Gen. 554 (1852) (trains 

carrying U.S. mail are subject to municipal speed regulations). Compare

Montana v. Christopher, 345 F. Supp. 60 (D. Mont. 1972) (in an emergency 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 of which is not necessary to the accomplishment of the federal function. However, in exigent circumstances in 

which violations of such laws are necessary to permit FEM A to per200
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 h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

2 For 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 installations 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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