Eight Republican Senators have issued a letter to President Obama questioning the legality of the President’s newly issued Executive Order (EO) amending Executive Order 11988 issued by President Carter in 1997.  The letter was signed by Senators Cochran (Mississippi), Vitter (Louisiana), Cornyn (Texas), Isakson (Georgia), Wicker (Mississippi), Blunt (Missouri), Boozeman (Arkansas), and Cassidy (Louisiana) on February 5, 2015.

While some commentators have begun questioning whether the new EO may exceed the President’s authority, the Republican Senators have instead focused on a procedural issue, noting that Public Law 113-235 (providing for FY2015 appropriations) requires the Executive Branch to solicit and consider input from governors, mayors, and other stakeholders before issuing a new Federal Flood Risk Management Standard (FFRMS). The Senators then allege that this act required solicitation and consultation that did not occur.

To drive the point home, the Senators then ask a series of pointed questions, requesting answers from the Administration by February 17th.  A few sample questions include:

  • Who were the non-Federal individuals involved in composing, drafting, and editing the FFRMS?
  • Who were the Governors, mayors, and stakeholders that were solicited, including content and dates?
  • Provide a detailed accounting of the efforts to engage the public and members of Congress prior to the issuance of the FFRMS.

It is a long-standing policy of the executive branch to respond to letters from Congress.  But when that response will be sent, and what it will say, is certainly an open question at this point.  We believe that this letter, and the future response, are not so much opening salvos in a battle between the branches, but rather are gentle skirmishes in which each side stakes positions from which future arguments will be made.

Also, don’t forget that the 60 day period to comment has started on the draft implementation guidance on the new EO (we will have an analysis for your consideration on the blog in the next few weeks).  For the specifics on how and when to comment, please see the Federal Register Notice published on Thursday which requires comments by April 6.