Created by Colleen Sherry
"Some state legislatures may need to do some statutory cleanup to better integrate their public health statutory scheme with their overall emergency disaster statutory framework. For a number of states, the governors declared both a public health emergency and a general state of emergency. For those states, their public health emergency statute may not provide their governor with sufficient emergency powers to respond to the virus.453 Instead of declaring both types of emergencies, governors should have an option to use their full range of emergency powers when confronting a public health emergency" (Deere, 2021)
"State governments may be reluctant to deploy a new and previously untested authority or may lack clarity about the circumstances under which a public health emergency declaration is appropriate [...] In addition, state laws typically limit the circumstances under which public health emergency declarations can be issued." (Rutkow, 2014)
"A persuasive argument has been made that if declarations are 'used too readily, public health officials may find themselves like the boy who cried wolf: their warnings about emergencies may go unheeded'" (Sunshine et al., 2019)
"A governmental declaration of 'public health emergency' can provide a state’s health sector with flexibility and guidance about the parameters of a response" (Rutkow, 2014)
"The tangible benefits of these declarations demonstrate their utility when atypical emergencies create the necessity for enhanced action. Emergency declarations have been cited as a politically expedient tool to spur legislative and regulatory action “when legislative gridlock or the influence of special interests has thwarted needed action" (Sunshine et al., 2019)
"Because public health emergency declarations address more specific circumstances than general emergency declarations, states may issue simultaneous emergency and public health emergency declarations" (Rutkow, 2012)
"Affirmative, future uses of federal interstate commerce powers to control outbreaks of infectious diseases across states are predictable. If validated, opposing state laws inevitably fall away" (Hodge & Piatt, 2021)
"More recently, however, governors have used declarations to address public health issues that have existed for years and have risk factors such as poverty and substance misuse" (Sunshine et al., 2019)
"State counterpunch bills in Montana, South Dakota, and Utah would limit state agency implementation of these or future presidential orders based on a state attorney general's determination that they curb individual rights or are otherwise constitutionally infirm" (Hodge & Piatt, 2021)
"This is the underlying logic of states of emergency-they are the release valves that enable laws to be as robust as they are in normal circumstances" (Reich, 2002)
"Although some may view this flexibility favorably, it also raises concerns about the deployment of emergency powers—reserved for extraordinary circumstances—to address a predictable, seasonal event" (Rutkow, 2014)
"[As of 2004], gubernatorial authority to employ executive orders varies across the states" (Ferguson & Bowling)
"In several states, attention to disasters made up a sizable portion of the executive orders issued" (Ferguson & Bowling, 2008)
"Legislative rebukes of state or local public health powers to respond to a national PHE like the COVID-19 pandemic are legally short-sighted. They falsely presume that states will be 'calling the shots' in future events. This may be true in purely intrastate emergencies. However, states' exposed weaknesses in coordinating pandemic responses necessitate stronger federal roles'" (Hodge & Piatt, 2021)
"In reality, partisan politics underlie attempts to obliterate effective public health measures" (Hodge & Piatt, 2021)
"There were also several challenges to governors’ statutory authority to declare a state of emergency" (Deere, 2021)
"Potential consequences of these concerted legislative actions are alarming. Governors may be estopped from taking effective action. Localities may be preempted from engaging in novel approaches. In future public health exigencies, communities and their residents may suffer excessive disabilities and deaths" (Hodge & Piatt, 2021)
"Future effects of broader bills may be minimal as well. Many reflect a legislative prescription for how to respond to future PHEs which will not match the magnitude of the pandemic. COVID-19 interventions are the exception, not the model, for how governors or public health agencies may address lesser threats" (Hodge & Piatt, 2021)
"Without a codified public health emergency declaration process, which generally includes planning and coordination requirements in advance of an emergency, states may operate under outdated public health emergency laws. In many states, public health statutes have been assembled over time, creating a patchwork effect" (Rutkow, 2014)
"Although state and territorial constitutional or statutory schemes vary, all governors are granted the authority to declare one or more types of emergencies, including a disaster, an emergency, or a public health emergency" (Davis et al., 2023)
"Some states specify the purposes for which executive orders can be used. The categories included are civil defense disasters; public emergencies; energy emergencies and conservation; other emergencies; executive branch reorganization plans and agency creation; the creation of advisory, coordinating, study, or investigative committees and commissions; response to federal programs and requirements; oversight of state personnel administration; and other administration" (Ferguson & Bowling, 2008)
"The gubernatorial executive order (GEO) is an increasingly visible legal tool within the public health arsenal that may blur some of the traditional lines created through the separation-of-powers framework" (Gakh et al., 2013)
"Many of the 2020 state legislative sessions were substantially disrupted due to the COVID-19 pandemic. As such, the pace of legislation was limited, and though many legislatures in regular or special sessions introduced proposals to modify emergency powers, little legislation passed during this period" (Davis et al., 2023)
"Legislatures in some states seek to restrict public health officials from imposing certain limitations on assemblies in houses of worship during epidemics or outbreaks. Other proposals prevent public or private entities from mandating vaccinations as a requirement of employment, school attendance, or venue entry, as well as to obtain business services" (Hodge & Piatt, 2021)
"Some legislatures are attempting to wrest control from executive agencies through emergency oversight committees" (Hodge & Piatt, 2021)
"Several bills limit the duration of emergency declarations and set automatic limitations on public health actions" (Hodge & Piatt, 2021)
"This indicates that state legislatures, in constraining emergency powers, may have been motivated by the fear that the governor would, in an effort to consolidate power, declare a state of emergency in a situation that was not actually an emergency.95 Perhaps more plausibly, state legislatures feared that governors would legitimately declare a state of emergency, but then continue exercising extrastatutory powers after the emergency was under control" (Weiss, 2021)
"Yet, state health and emergency management agencies have multiple other options to respond to public health exigencies. Many existing routine public health powers (e.g., testing, screening, vaccination, treatment) can be effectively implemented in real-time without a declaration" (Hodge & Piatt, 2021)
"Analyses of our data find no significant relationship between a specific listing of legitimate purposes for orders and the number of orders issued. Similarly, legislative approval requirements are not significantly related to the number of orders in a state." (Ferguson & Bowling, 2008)
"Appointments (33%); disaster relief and activities (11%); create task forces/boards (10%); direct agency/program actions (9%); changes to existing orders (7%); flags at half staff (6%); reorganize agency (3%); transfer state funds (3%); pardons (3%); create new programs (2%); create commission for oversight (2%); implement federal order (1%); establish state holiday (<1%); other/missing (9%)" (Ferguson & Bowling, 2008)
"Public health emergency declarations typically originated in the office of the governor, although 1 state allowed the declaration to be made by the state’s highest ranking health officer" (Rutkow, 2014)
"The combination of the federal declaration and confirmed H1N1 cases within or near these states likely provided the impetus for the inaugural deployment of their public health emergency powers" (Rutkow, 2014)
"Other scholars find Posner and Vermeule's arguments on the normative uselessness of legal constraints unconvincing and argue that democratic involvement and constraint is both plausible and crucial to legitimate and effective emergency governance" (Weiss, 2021)
"Executive emergency actions can be deeply flawed[...]" (Weiss, 2021)
"Gubernatorial waiver authorities do not allow for complete suspension of constitutional rights. Yet, they do include the power to (1) disregard contrary local ordinances, (2) exempt state agency regulations, and (3) set aside restrictive state statutes" (Hodge & Piatt, 2021)
"Thus, most states allow the governor to override existing laws in an emergency, while a minority only allow emergency actions within the framework of existing statutes and regulations" (Weiss, 2021)
"A primary tool available to most state governors pursuant to emergency declarations is their authority to temporarily waive laws or policies that interfere with or restrain emergency responses" (Hodge & Piatt, 2021)
"[...]much like informal powers, the contours and limits of [executive orders] can be shaped to a large degree by the governor’s actions" (Ferguson & Bowling, 2008)
"Allocating resources away from one program or agency to another might be a significant way governors exert control over state administration, though this does not appear to be a particularly common practice" (Ferguson & Bowling, 2008)
"it is also the case that governors might use executive orders not simply to exercise control over the executive branch. Instead, like presidents, they may make a strategic choice to pursue broader policy goals through unilateral action rather than facing an unfriendly legislative environment" (Ferguson & Bowling, 2008)
"In the public health context, GEO uses include tackling public health emergencies, establishing new programs and entities, directing or reorganizing agencies, increasing the profile of an issue, and controlling state operations" (Gakh et al., 2013)
"[...]particularly during legislative gridlock or inaction by a state agency, a GEO may be a useful instrument for change" (Gekh et al., 2013)
"An executive order may be issued immediately and does not need to go through the same formal rule making process as a bill passed by the legislature or a regulation promulgated by a state agency" (Deere, 2021)
"A GEO's primary advantage is to allow for swift formulation and implementation of public health policy" (Gekh et al., 2013)
"[...]the executive is structurally more “bound” in a health crisis or a natural disaster than in a national security crisis" (Ginsburg & Versteeg, 2021)
"[Presidents] 'most often claimed either direct statutory authority or mixed constitutional and statutory foundations for their actions'" (Ferguson & Bowling, 2008)
"A general presidential power to issue executive orders is not explicitly mentioned in the U.S. Constitution or in statute. Instead, the power derives from the responsibility to 'take care that the laws are faithfully executed'" (Ferguson & Bowling, 2008)
"Professors Eric Posner and Adrian Vermeule argue that in the modern era, where complex, unforeseen emergencies arise with increasing frequency, the only body that is actually qualified to make quick, effective decisions in the face of crises is the executive and the hierarchical-and thus more efficientadministrative state. The legislative and judicial branches, on which James Madison pinned his hopes of constraining the executive, have proven unable to check emergency action." Congress is hampered by information asymmetry, collective action problems, and partisan loyalties,' while the courts are stuck with even less information than Congress, geographic decentralization, and the 'legitimacy deficit' of being unelected" (Weiss, 2021)
"[...]state legislatures are also appeasing constituent interests, especially in more conservative jurisdictions. Aligned legislative efforts collectively aim to diminish public health emergency (PHE) powers of state and local agencies" (Hodge & Piatt, 2021)
"For presidents, tools for unilateral decision making include executive orders, executive agreements, national security directives, and proclamations" (Ferguson & Bowling, 2008)
"[..]governors do not appear to have the authority to exempt constitutional state requirements during an emergency" (Deere, 2021)
"In the United States, there is no judicial check on a governor’s failure to act during a state of emergency" (Deere, 2021)
"Executives can be granted additional powers through ordinary legislation, which may be sufficient to address the crisis. John Ferejohn and Pasquale Pasquino have called this the “legislative model” of crisis governance.53 Such legislative delegation allows the executive to deploy additional powers that she does not normally possess, including restricting the exercise of rights. Rights are not absolute, and rights restrictions are usually permitted as long as they are necessary to accomplish some other important goal, use a proportional means to accomplish the stated goal, and are based in law" (Ginsburg & Versteeg, 2021)
"The issue of the lack of democratic legitimacy is further exacerbated by the chronic nature of the emergency. A natural disaster or a bioterror attack is an acute catastrophe that can be expected to be dealt with over a few days, weeks, or perhaps months. On the other hand, a future pandemic may go on for years," 7 with various geographic areas flaring up with consecutive waves, at least until a viable vaccine is found and widely distributed."' The legitimacy of government by executive order, where the particulars of the government response are in dispute, is further eroded as governance by the governor continues for longer stretches of time" (Weiss, 2021)
"Research on presidential orders points to the use of unilateral action to achieve presidential goals without having to go to the trouble and political cost of maneuvering through the legislative arena" (Ferguson & Bowling, 2008)
"The vague nature of [executive power] boundaries invites executives to exert increasingly broad claims of unilateral authority" (Ferguson & Bowling, 2008)
"[...]most governors rely on emergency powers granted to them by their state legislature through some type of emergency disaster statute" (Deere, 2021)
"Posner and Vermeule ultimately argue that, at least in the United States, the phenomenon of the unbound executive is not limited to times of emergency. They believe that modern government bears little resemblance to the Madisonian scheme of checks and balances laid out in the US Constitution. With the rise of the administrative state, and the complexities of modern governance, checks and balances have become largely formal. As they summarize, '[l]egislatures and courts . . . are continually behind the pace of events in the administrative state; they play an essentially reactive and marginal role, modifying and occasionally blocking executive policy initiatives, but rarely taking the lead' and 'in crises, the executive governs nearly alone, at least so far as law is concerned'" (Ginsburg & Versteeg, 2021)
"It is conventional wisdom that emergencies require massive delegation of power to the executive, which is the only branch of government with the information, decisiveness, and speed to respond to crises" (Ginsburg & Versteeg, 2021)
"The legislature knows that any bill it passes that contradicts the governor's chosen policy, short of completely ending the emergency, will just be vetoed by the governor. 1 1 4 For legislators in these situations, there is very little "traceability" of subpar health outcomes to their stance on public health policy, and there is thus no political downside to any effort they make to criticize the response, as the ultimate arbiter of public health policy will be the governor.1 1 5 This creates a "position-taking opportunity" for legislators to make inflammatory statements or propose radical policy choices to please their bases, without having to live with thejudgment of the populace on the failure of their policies."' This high-profile dissension clearly reduces the perceived legitimacy of the executive's actions in the emergency" (Weiss, 2021)
"[...] some state legislatures sought judicial intervention to limit their governor from exercising some of her emergency powers" (Deere, 2021)
"In the 2020 and 2021 state legislative sessions, legislatures introduced more than 750 bills, limiting the emergency powers of governors and state health officials" (Davis et al., 2023)
"President Biden issued executive orders to deal with the pandemic, ordered agencies to expand testing, and took steps to enhance workers' health and safety,138 yet everything was achieved through his own acts and those of his administration. The role of the Congress-where proxy vote was used in the House of Representatives but not in the Senate -was confined, both under the Biden presidency and his predecessor's, to the approval of some statutes to cope with the economic and financial effects of the pandemic" (Vedaschi & Graziani, 2022)
"Not only must governors bargain with the legislative branch to achieve legislative goals, they also must contend with independent actors having their own policy goals within the executive branch. This adds a layer of difficulty to gubernatorial leadership that presidents do not have to contend with" (Ferguson & Bowling, 2008)
"Observers of state politics can reasonably conclude that the expansion of formal powers will not be the source of increasing executive influence in the future. Governors hoping to expand their power, and emergency creation therefore, must look to informal tools (such as access to the media), or perhaps to creative ways to make use of formal tools" (Ferguson & Bowling, 2008)
"Anecdotal evidence from a handful of states indicates that there are multiple means by which governors exert influence on the executive branch" (Ferguson & Bowling, 2008)
"Posner and Vermeule assume that, during emergencies, the ordinary constitutional framework formally stays in place, but that in practice, there will be massive delegation to the executive by the other branches of government. Their account describes the United States" (Ginsburg & Versteeg, 2021)
"At the national level, legal scholars disagree about the extent of an executive’s power during times of crisis [...] Others also argue for a strong executive during a time of emergency but find that the executive should be bound by checks and balances" (Deere, 2021)
"Judicial and legislative oversight should not amount to active participation in what is considered an executive function during a crisis" (Deere, 2021)
"Thus, precisely in times of unprecedented, multifaceted crisis, when people have strong, urgent, and indeed self-interested differences of opinion as to the weight to be given to various factors when deciding on the course of public policy, the deliberative decisionmaking of the legislature should act as a constraint on executive action" (Weiss, 2021)
"[...]disallowing substantive legislative input in a public health emergency also places responsibility for the ultimate public health outcome squarely on the governor" (Weiss, 2021)
"Perhaps the most balanced form of check on the governor’s emergency powers is the state legislature’s authority to terminate the state of emergency by concurrent resolution" (Deere, 2021)
"Thus, a majority of the states rein in the governor by placing a time restriction on the governor's unilateral emergency actions, after which the governor must renew them either unilaterally or by seeking approval from the legislature" (Weiss, 2021)
"[...]the states that give the governor minimal emergency powers feel no need to constrain it, while the states that grant sweeping executive power also allow the legislature to rein it in" (Weiss, 2021)
"As “chief executives,” governors must have control of the executive branch in order to effectively administer state government" (Ferguson & Bowling, 2008)
"However, the statutory restriction of legislative involvement to termination of the state of emergency closes off the avenue of meaningful, substantive input and compromise on policy, as legislators cannot credibly threaten to terminate the emergency to induce the governor to negotiate on policy" (Weiss, 2021)
"While in the early 20th century the office was viewed as weak, governors today garner greater powers and their responsibilities and duties have significantly increased" (Deere, 2021)
"Further, depending on the breadth of these orders, we may find that governors employ them in pursuit of larger policy goals. If so, the use of executive orders might extend gubernatorial policy influence from the executive arena into the legislative" (Ferguson & Bowling, 2008)
"His conception of unilateral executive power holds that such actions offer executives a way out of (or around) the frustrations inherent in a separation of powers system"(Ferguson & Bowling, 2008)
"Niccoli Machiavelli advocated explicitly including special provisions for emergency powers within a state's laws, writing that a state 'will never be perfect unless it has provided for everything with its laws and has established a remedy for every accident and given the mode to govern it'" (Weiss, 2021)
"Most state legislatures serve two purposes in an emergency: (1) serving as a check on gubernatorial powers; and (2) providing funds aimed at directly addressing a state of emergency" (Deere, 2021)
"In the throes of the worst public health event in modern history, it almost seems incredulous that legislatures would limit PHE powers. After the 9/11 terrorist attacks and subsequent emergencies, national and state sentiments tended to empower, and not constrain, public health authorities. The COVID-19 pandemic's magnitude and duration have seemingly 'flipped the script' in many jurisdictions. Coupled with a dynamic political environment fueled by scientific denialism and distrust of government, legislative factions are poised to stymie PHE responses" (Hodge & Piatt, 2021)
"Instead of the power to terminate a declaration of emergency, about seven state legislatures are vested with the power to renew a governor’s state of emergency after a certain period of time. It seems as this is not so much a limit on the governor’s power but rather requires active participation by the state legislature in the emergency power process and goes too far in times of emergency" (Deere, 2021)
"Some argue in the context of a pandemic, courts and legislatures may see themselves as helping in the response rather than being in the way. Similarly, executives have used their emergency powers to respond to natural disasters and other health crises that last a short time and both the judiciary and legislature may often step aside to allow a quick response. Those emergencies differ significantly from that of a pandemic or other prolonged public health crisis" (Deere, 2021)
"Battling a highly contagious virus, a governor could not simply wait for the state legislature to pass an emergency statute. It takes too long for a state health agency to go through the formal process of issuing an emergency regulation" (Deere, 2021)
"One mechanism that executive emergency power statutes do not use to constrain the executive is allowing the legislature substantive input into specific emergency actions the governor takes during a pandemic" (Weiss, 2021)
"Yet when a legislature, such as through Ohio Senate Bill 22,63 creates a standing committee to oversee gubernatorial emergency measures, it crosses a constitutional boundary designed to maintain divisions among branches of government" (Hodge & Piatt, 2021)
"Although state laws typically allow for rapid responses to varied emergencies, the concept of a distinct public health emergency declaration gained traction shortly after the terrorist attacks of September 11, 2001, and the subsequent mailing of anthrax-tainted letters to members of Congress and others [...] This increased awareness, along with other initiatives to update states’ public health laws, led some states to include a declaration of “public health emergency” with accompanying public health emergency powers in their laws" (Rutkow, 2014)
"Most states created their original laws pertaining to emergency powers decades before COVID-19 with the intent to respond to short-term natural or man-made disasters" (Davis et al., 2023)
"'The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people'" (Parker & Fellner)
"Stripping governors of all or some of their emergency powers, or putting a hard time limit on their exercise, swings the pendulum too far in the direction of democratic legitimacy, neglecting the real necessity for technocratic agility" (Weiss, 2021)
"[...] the right of the executive to respond to an emergency by issuing executive orders, and even by suspending statutes and regulations in states that allow such orders, should be maintained. However, states should append to these statutes language mandating a process similar to the revised CRA suggested by Rosenberg" (Weiss, 2021)
"This revision's applicability should also only be limited to an emergency of unusually long duration, where sustained legitimacy is vital but difficult to maintain. When the executive declares a state of emergency, the governor's executive orders should be immediately effective with no additional oversight. But after a preset period-fifteen days for the sake of argument-the governor should be mandated to send copies of each executive order to each house of the state legislature" (Weiss, 2021)
"[...]unless the legislature convenes to demand a longer review period, the governor's order would be deemed approved. Only if a critical mass of the legislature demanded a longer review period would a fast-track debate-ensured by bicameral procedural constraints-ensue. The legislature and the governor would then have a short period to reach a mutually agreeable solution on the specific tradeoff that the legislature finds objectionable" (Weiss, 2021)
"Decided more than one hundred years ago, the United States Supreme Court in Jacobson first defined the standard for evaluating emergency measures though not executive orders per se" (Deere, 2021)
"However, some may argue that the state legislature’s power in many of these emergency disaster statutes gives it little flexibility – it is an all or nothing approach. New York may have a better solution. In New York, the state legislature had both the authority to terminate a state of emergency as well as the authority to terminate a specific emergency executive order" (Deere, 2021)
"[...]a solution to the deficit in democratic legitimacy must not simply return crisis governance to the regular legislative process" (Weiss, 2021)
"The last two national emergenciesthe attacks on September 11, 2001, and the Global Financial Crisis in 2008-have largely been defined by unilateral executive response" (Weiss, 2021)
"Nevertheless, since taking office, U.S. President George W. Bush has governed as though he had received an overwhelming mandate for policies that emphasize strong executive powers and a distrust—if not outright depreciation—of the role of the judiciary" (Parker & Fellner)
"[...]one must hope the courts will recognize the unprecedented dangers for human rights and justice posed by the Bush administration’s assertion of unilateral power over the lives and liberty of citizens and non-citizens alike" (Parker & Fellner)
"Many of the Bush administration’s post-September 11 domestic strategies directly challenge the role of federal and administrative courts in restraining executive action, particularly action that affects basic human rights" (Parker & Fellner)
"One of the side effects of the COVID-19 pandemic has been a precipitous increase in unilateral executive lawmaking across the globe.' While most countries directed their executive responses at the national level, the United States largely left the response to the governors of the states, with governors relying on their public health emergency powers" (Weiss, 2021)
"Actions taken during the early period in March and April came in response to the sudden public health crisis and may have been especially centralizing as governors acted quickly and decisively" (Weissert et al., 2021)
"However, it is important that the legal authority be in place for the government to utilize compulsory measures in the face of adverse citizen response. [...] If citizens design appropriate responses to public health emergencies within this framework of laws rather than resigning themselves to extralegal responses in the face of necessity, Americans will ultimately be doing a great service to both their interests as individuals and their interests as members of a community" (Reich, 2002)
"[...] some state governors and legislatures have disagreed on how to best manage the COVID-19 pandemic particularly where the legislature and executive branches were from different political parties" (Deere, 2021)
"The political party of the governor might be expected to play an important role in pandemic actions supported or opposed by a highly visible president who called out Democratic governors for closing down their states and lauded Republican governors who did not" (Weissert et al., 2021)
"Considering the traditional features of the United States presidential system and how previous emergencies have been handled in the country (e.g. international terrorism), the strong role of executives does not come as a surprise" (Vedaschi & Graziani, 2022)
"Executive decisions relating to the virus quickly became tinged with nonscientific considerations, with the science being 'filtered through a very thick political lens.' Widespread protests indicated the lack of consensus on the appropriate response, and the perceived illegitimacy of governors' orders hampered their acceptance" (Weiss, 2021)
"In a few states, legislatures initiated a full-blown showdown with the executive, either trying to impeach their governors' emergency powers" (Weiss, 2021)
"Even more concerning is the phenomenon of legislative pushback against executive emergency powers due to legislators' frustration over the sidelining of deliberative input during the COVID-19 pandemic" (Weiss, 2021)
"The central question underlying any public health reporting requirement is where the appropriate balance lies between an individual's legitimate expectation of privacy and the public health benefits to society as a whole" (Reich, 2002)
"[MSEHPA] thus provides that, in the event of the exercise of emergency powers, the civil rights, liberties, and needs of infected or exposed persons will be protected to the fullest extent possible consistent with the primary goal of controlling serious health threats" (MSEHPA)
"Emergency orders thus must survive strict scrutiny via a showing that such interventions (1) are narrowly tailored to serve a compelling government interest and (2) represent the least restrictive means for accomplishing the objective. 66 This is an exacting constitutional standard with an almost assured outcome: the government loses. The problem is that not every infringement of rights or liberties warrants strict scrutiny under judicial precedent. In fact, most do not" (Hodge & Piatt, 2021)
"But at bottom, there are significant tradeoffs that are being made on a unilateral basis by the executive. The existing regime consolidates the power to make judgments and issue orders regarding these tradeoffs for indefinite periods of time in the office of the executive, with any substantive legislative disagreement being pushed into interminable lawsuits withjudges arriving at outcomes along partisan lines. This is a recipe for manufacturing the perception of illegitimacy, and thus a deficiency in compliance and legislative pushback against emergency powers, both of which will significantly undermine executive responses to future emergencies" (Weiss, 2021)
What role do executive emergency powers play in public health emergency (PHE) governance, and how have changes to these powers over time impacted the ability of governments to prepare and respond to PHEs (with specific attention paid to post-COVID era laws)?
"MSEPHA was not designed with the current COVID-19 pandemic in mind" (Deere, 2021)
"On one side of the debate are those who advocate building strong emergency powers into law[...] On the other side of the debate, those concerned primarily with preservation of civil liberties fear the formal expansion of government power. For most of those skeptics, effective leadership is the key to preserving public health" (Reich, 2002)
"[...]while the government should strive to exercise effective leadership in the face of a public health emergency so as to ensure maximal individual freedom of action, it is vital that the government have the legal authority to exercise compulsory powers if necessary" (Reich, 2002)
"[...]based on the COVID-19 controversy, [...] reposing emergency power for a chronic, long-duration emergency solely in the hands of the governor raises an issue of democratic illegitimacy. This democratic illegitimacy risks curtailing citizen obedience to public health regulations and invites legislative pushback on emergency powers generally" (Weiss, 2021)
"This paper argues that the MSEHPA provides a strong basis from which state legislatures should begin to reconsider their public health laws and update them as necessary but that the Model Act cannot be adopted in full and must be altered so as to bolster privacy and civil liberty protections that are unjustifiably weakened to an unnecessary degree by the Model Act in its current form" (Reich, 2002)
"[As of 2019] [t]he legal definition of an emergency varies greatly by state" (Sunshine et al., 2019)
"State centralization and erosion of local autonomy have been documented for over forty years" (Weissert et al., 2021)
"In all, twenty four states have incorporated a specific declaration of a state public health emergency with some accompanying public health emergency powers in their laws. For states declaring a public health emergency, this triggers a certain specific set of emergency powers" (Deere, 2021)
"While all fifty states have some type of emergency disaster statute, some state legislatures have included a separate public health emergency component to its disaster statute or passed separate public health emergency legislation" (Deere, 2021)
"But unlike most other emergencies in recent memory such as hurricanes, wildfires or even 9/11, COVID-19’s reach goes beyond a city, county, state or even region" (Deere, 2021)
"This legitimacy deficit has been exacerbated by the unprecedented duration of the emergency and the high-profile showdowns between the executive and the legislature, often playing out in courts that decide the cases along political lines" (Weiss, 2021)
"The long-lasting nature of the COVID-19 crisis is a pivotal element to bear in mind" (Vedaschi & Graziani, 2022)
Some will argue that this Note's focus on legitimacy neglects the distinguishing quality of a public health emergency: It is a scientific emergency, and it follows that policy should just "follow the science."'2 ' This implies that emergency powers should be conceived as a legal mechanism whereby the government can simply impose the advice of epidemiologists and other public health experts on the populace. But although a world where the citizenry unquestioningly accepted the recommendations of scientific experts might be ideal, that is assuredly not the one that exists. Trust, even in scientific methods and conclusions, is inseparable from political motivations and legitimacy.'
"The MSEHPA is a Model Act aimed at standardizing and modernizing state public health legislation across the United States in order to give officials the authority to act decisively and quickly in the event of a bioterrorist attack or major outbreak of disease" (Reich, 2002)
"Because each state is responsible for safeguarding the health, security, and well being of its people, state and local governments must be able to respond, rapidly and effectively, to public health emergencies" (MSEHPA)
"Under the Stafford Act, the U.S. president can declare a federal emergency, but any federal resources are considered to supplement state and local resources" (Deere, 2021)
"Since the New Deal, Congress had inserted legislative veto provisions into over 200 statutes. However, the constitutionality of the legislative veto was controversial,' and presidents soon began to resent the interference of Congress in administrative matters" (Weiss, 2021)
"Finally, although this research offers information about the content of public health emergency declarations, I did not explore the actual implementation of these public health emergency powers after the issuance of the declaration. This is a promising and important area for additional research" (Rutkow, 2014)
"This Note suggests that the extraordinary political rancor and widespread protest that accompanied the COVID-19 response may be attributed-at least partially-to the democratic illegitimacy of designing emergency governance for a chronic emergency to be centralized in the executive, with no substantive deliberative input by the legislature" (Weiss, 2021)
"New and emerging dangers—including emergent and resurgent infectious diseases and incidents of civilian mass casualties—pose serious and immediate threats to the population" (MSEHPA)
"[The Act] provides state and local officials with the ability to prevent, detect, manage, and contain emergency health threats without unduly interfering with civil rights and liberties" (MSEHPA)
"The MSEPHA is a comprehensive model act designed for state legislature contemplation to provide state actors with powers 'to detect and contain a potentially catastrophic disease outbreak... '" (Deere, 2021)
"As was the case with gubernatorial actions, court cases featured local officials sometimes not implementing state orders and sometimes acting beyond what the state thought their local powers allowed" (Weissert et al., 2021)
"[...]the controversy surrounding the MSEHPA illustrates the tension between technocratic governance and democratic input in a public health emergency as well as the careful balance between power and constraint that the drafters aimed to achieve" (Weiss, 2021)
"At the state level prior to the pandemic, scholarship was sparse about how broad the governor’s powers should be during a state of emergency. Clearly, the scholarship is emerging. But the different theories concerning emergency powers of national executives could apply equally as well at the state or sub-national level" (Deere, 2021)
"State governors do not respond to emergencies in a vacuum. The federal government takes on a role, but its role is usually secondary to state and local governments" (Deere, 2021)
"In its 2021 Pandemic Preparedness Plan, the Biden Administration confirmed that '[p]rotecting the United States from threats is a core responsibility of the Federal government' and emphasized the need for 'robust national biodefense capabilities' to protect the country against biological threats such as pandemics and bioweapons" (Hodge & Piatt, 2021)
"COVID-19 was clearly an unprecedented national emergency that required quick action but also demanded much longer and revolving policy intervention than typical natural disasters. Will the centralization evident from governor’s actions generalize to other more typical public policies? Hopefully, scholars can answer this question using this research as a baseline. We find some evidence that preemption attenuates over time. Whether this continues will be worth further study to fully answer the question of generalizability" (Weissert et al., 2021)
"A state legislative committee analyzing the bill cited the 2020 concurring opinion of U.S. Supreme Court Justice Neil Gorsuch arguing that "[g]overnment is not free to disregard the First Amendment in times of crisis" (Hodge & Piatt, 2021)
"Considerable legislative influence has been exerted through entities like the American Legislative Exchange Council (ALEC), which circulated its draft 'Emergency Power Limitation Act' in late 2020" (Hodge & Piatt, 2021)
"Further examination of [the] interplay between the legislative and executive will help to clarify the true significance of executive orders for gubernatorial power" (Ferguson & Bowling, 2008)
"The COVID-19 response marked the first time in US history when all 55 governors of the states and territories issued some type of emergency declaration in response to the same incident" (Davis et al., 2023)
"The largely unrestrained nature of the governor's power under the draft MSEHPA engendered near universal opposition" (Weiss, 2021)
"Previous research would lead us to think that trends toward centralization will continue or even be extended when governors can act on their own and in times of emergency (Bowman and McKenzie 2020). But there are contextual factors that might lead governors to give local officials more power" (Weissert et al., 2021)
"State and local governments were pivotal in responding to COVID-19. Governors, in particular, were in the hot seat, when the national response, led by the White House, essentially delegated authority (and blame) to them" (Weissert et al., 2021)
"While a federal quarantine is the likely mechanism to be used should quarantine be necessary to respond to a public health emergency that is national in scope, it is important that each state have its own quarantine laws to respond to local public health emergencies or to implement a federal response at the local level" (Reich, 2002)
"By explicitly placing the responsibility for emergency response on both the governor and the legislature, such an emergency powers regime would incentivize compromise rather than performative opposition. Luckily, a similar mechanism can be found in federal administrative law, in the Congressional Review Act (CRA). There, the executive and its administrative agencies craft rules, and Congress reserves the right, via a fast-track review process, to veto those rules" (Weiss, 2021)
"Another topic of future research will be whether state legislatures will continue to take a backseat to gubernatorial powers, including those affecting local governments" (Weissert et al., 2021)
"'I think a part of our role is absolutely to look at what the Legislature’s role is in a sustained emergency,' said one Republican state senator. 'We have never been in a situation where it’s been this prolonged and ongoing.'" (Weissert et al., 2021)
"In other words, the United States' federal approach to the pandemic during the first year can be defined as 'executive underreach,' meaning the 'executive branch's willful failure to address a significant public problem that the executive is legally and functionally equipped (though not necessarily legally required) to address.'" (Vedaschi & Graziani, 2022)
"[Trump's] approach, with the federal government in the background, changed in January 2021, when President Joseph Biden took office. He made the fight against COVID-19 a central issue of his campaign and presidency but, again, without any meaningful involvement of Congress, at least in imposing limitations on rights and freedoms" (Vedaschi & Graziani, 2022)
"For instance, in the United States, at least until President Biden took office, most COVID-19 policies were de facto led by state governors, giving rise to interesting and unexpected new trends in United States federalism (horizontal cooperation among states)" (Vedaschi & Graziani, 2022)
"In the handful of states where these proposals become law, strategic legal responses across different levels of government may curb their impacts. Increasing federal authority and direction for quelling future pandemics may circumvent or preempt conflicting state-based limitations. Courts may determine key legislative provisions are unconstitutional. State-based emergency waivers and executive interventions may obviate attempted constraints. Collectively, these and other legal strategies can derail intended legislative "fixes" for perceived abuses of public health authorities" (Hodge & Piatt, 2021)
"At least during the first year of the pandemic, United States' federalism can be considered the system that underwent the most changes" (Vedaschi & Graziani, 2022)