Warning: This post contains spoilers up through Episode 5 of House of Cards.
The Stafford Act is having its Hollywood moment.
Passed in 1988, near the end of the Reagan administration, the act was meant to organize federal responses to national disasters and emergencies. Three decades later, it's now playing a central role in the new season of House of Cards.
In the show, President Frank Underwood repeatedly invokes the Stafford Act as the law that will let him transfer $3 billion from FEMA to his new full-employment plan, America works.
"The Stafford Act gives me full authority to define an emergency," Underwood tells his FEMA administrator, Arthur Silva. He's making the argument there that he can use FEMA funds to address unemployment, so long as he declares having Americans out of work an emergency for the country. "Unemployment leads to crime, to malnutrition, to improper medical care," Underwood had argued earlier.
This plan is, in a word, absurd — as Underwood's very-skeptical legal advisor goes on to note, it will near certainly be challenged in court. And while it exists in a world of fiction, Underwood's Stafford Act plan does actually parallel some of the very real fights happening in Washington today about executive authority and overreach.
To understand why, you have to dive into the Stafford Act — its wording, usage, and legal doctrines — going where even few wonks have gone before.
The Stafford Act appropriates funding for national emergencies
The Stafford Act is essentially an amended version of the 1974 Disaster Relief Act, which lets the president declare emergencies and natural disasters. In case you're curious, it's named for Robert T. Stafford, a Vermont governor turned member of Congress who helped pass the law.
As House of Cards mentions, the Stafford Act gives the president the authority to decide what counts as a national emergency — but only so long as it fits within certain parameters. Title I of the Stafford Act, read aloud on the show, spells out those rules:
"Emergency" means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.
The declaration of an emergency is important because it allows the federal government to disperse additional money to help address whatever the situation is.
Congress really has worried about presidents abusing the Stafford Act
In House of Cards, Underwood is clearly testing the limits of the Stafford Act by declaring unemployment a national emergency. He realizes that his interpretation is unorthodox and will near certainly lead to court challenges — not to mention the outrage of Congress.
"There's no doubt it'll be challenged in the courts," a legal advisor tells him when he outlines the plan.
There are actually some real-word parallels here: Congress has become concerned that presidents have abused the Stafford Act, as they continue to declare more and more emergencies and natural disasters every year.
There's an entire Congressional Research Service report about the issue, published in 2012, that documents the rise in emergency declarations.
The number of president-declared emergencies has increased by decade, as you can see in this chart. Much of the increase in the 2000s, however, seems to be due to Hurricane Katrina – you see emergency declarations spike in 2005.
Natural disaster declarations have increased, too. You can see that in this chart from the report.
There are different theories about why natural disasters and emergency declarations have grow over the past few decades. One is that we just have more severe-weather incidents, and that means we actually need more disaster relief funds.
A more skeptical view, however, is that politics are at play. "Declarations are of congressional concern [because] some are skeptical that declarations are solely made to provide disaster relief," CRS analysts Bruce Lindsay and Frances McCarthy write.
One point of evidence for this theory: major disaster and emergency declarations increase during presidential election years. In non-election years, a president makes an average of 2.6 emergency or disaster declarations. In election years, it's 5.6.
But the data here isn't great either; there's only a handful of election years to look at and, as Lindsay and McCarthy note, "there are more nonelection years in the sample than election years, which may skew the sample since an increase in the sample will usually generate a figure that is more statistically normal."
The other issue at play: how much leeway does the law give President Underwood?
As Underwood's legal advisor notes, using the Stafford Act to declare unemployment an emergency would almost certainly lead to a court challenge. Here, too, there are real-life parallels — Republicans in Congress have challenged President Obama on analogous matters.
Earlier this year, congressional Republicans filed a lawsuit challenging the legality of the Obama administration's decision to delay the Affordable Care Act's employer mandate by one year. That lawsuit — and a hypothetical Stafford lawsuit — essentially center on the same question: how much leeway does the executive branch have in interpreting federal law?
The White House cannot simply decide to abandon a standing law. That much is made clear in the Constitution, which directs the president to "take care that the laws be faithfully executed."
At the same time, Congress and the courts have repeatedly recognized that the White House needs some space for discretion to make laws work. Legislation is often a broader blueprint with a particular policy goal in mind — in the case of the Affordable Care Act, for example, expanding access to insurance. Likewise, the point of the Stafford Act is broadly to help address national emergencies.
"Discretion may well be necessary to carry out a variety of important administrative functions," Justice William Rehnquist wrote in one major decision on the issue. But, at the same time, he cautioned that "discretion can be a veil for laziness, corruption, incompetency, lack of will, or other motives."
When I talked to legal experts this summer about the employer mandate challenge, they disagreed about whether courts would buy the argument that the Obama administration had exercised too much discretion.
It's unlikely we'll ever get to see a court battle play out over the Underwood's interpretation of Stafford — at least not in the real world. But, if we did, it's hard to see a world where the Supreme Court let this type of discretion fly, as "unemployment" does pretty much fly in the face of generally accepted definitions of emergencies.
Maybe this will be the central tension of House of Cards season four — a nerd can only dream.