Federal Emergency Powers in a Pandemic
As I’m not the first to observe, President Trump has proven oddly reluctant to make full use of federal emergency powers during the coronavirus pandemic. The reasons for the delay are puzzling, given his enthusiasm for using emergency powers in other settings. Fortunately, the harm caused by his lackluster response to the coronavirus has been somewhat mitigated by the decentralized nature of the U.S. federal system for addressing epidemics. Where the federal government has faltered, state governments have stepped up to address the challenge with social distancing orders and stay-at-home orders.
This post will try to place Trump’s coronavirus actions in context. I’ll first explain the statutory basis and limitations of federal powers in a public health emergency. Then I’ll talk about how federalism has operated during the crisis. State and local governments are on the front lines of the coronavirus response. If Trump is to be faulted, it is for his failure to effectively coordinate and fully support their efforts.
As I discuss in a forthcoming article, President Trump had previously been willing to take aggressive unilateral action to implement his goals. Soon after taking office, he fulfilled a campaign pledge to control entry of Muslims into the United States by invoking national security powers over border entry. Trump later declared a national emergency at the U.S.-Mexico border in order to divert military funds to finance construction of a border wall. He also invoked presidential powers relating to national security to impose tariffs on imports of steel and aluminum. But in the case of the coronavirus, the story was different.
Not only did the President fail to take the initiative in using federal emergency powers in response to the growing public health crisis, he actively resisted urgent calls from governors and others to do so. Following the precedent of his travel ban, he did restrict travel from the European Union and China. But he dragged his feet in terms of using domestic emergency powers. Doing so, he said, could be useful for “some of the more minor things at this point. But, you know, look, we’re in great shape. Compared to other places, we are in really good shape, and we want to keep it that way.”
Trump’s reluctance to issue a declaration was attributed in part to a division among White House advisors, and in part to an unwillingness to court the embarrassment of calling an emergency after long denying the magnitude of the problem. On February 19, he told a television station, “I think the numbers are going to get progressively better as we go along.” The reality was that the numbers slowly and then explosively worsened.
Trump did ultimately declare emergencies under both the National Emergencies Act (NEA) and the Stafford Act. The Stafford Act is primarily concerned with relief to victims of natural disasters like floods or hurricanes, but the Stafford Act’s definition of emergencies doesn’t contain any such restriction. Declaring an emergency under the Stafford Act allows some federal resources to be deployed, but the National Emergencies Act sweeps more broadly. Declaring an emergency under the NEA opens the door to using the emergency powers found in a host of other laws, including the Defense Production Act (DPA), a Korean War-era law that gives the government the ability to control production and distribution of vital material during a national emergency.
Under pressure from state governors who wanted assistance in obtaining medical supplies, President Trump did issue a proclamation on March 18, 2020 that the DPA was in effect. The law has frequently been used by the Defense Department and the Federal Emergency Management Agency (FEMA); Trump, however, has thus far made little use of the DPA to push the production of ventilators and other medical supplies, or to allow the federal government to organize distribution of such supplies. The result is that state and local governments chasing suppliers have been forced into bidding wars against each other. These uncoordinated state efforts drive up prices for urgently needed materials, clog supply lines, and result in uneven distribution.
In addition to declaring a national emergency under the Stafford Act, President Trump later issued “major disaster” declarations in several states. The governors had sought this designation because considerably more federal support can be accessed for a major disaster than for a national emergency under the Stafford Act. But only limited funds were released, leaving governors deeply dissatisfied. The governor of Washington complained bitterly that the declaration failed to “unlock many forms of federal assistance we have requested to help workers.”
The federal government has additional powers that directly address epidemics. The list includes broad power to issue regulations to prevent disease transmission from foreign countries or between states. (42 UAC § 264) Subsection (a) provides that:
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.
Despite the breadth of this grant of authority, the Surgeon General’s power to institute quarantine or place limits on domestic travel is limited. Subsection (d) delineates those powers. Indicating its roots in the commerce clause, federal power is limited to individuals moving between states, or likely to infect those moving between states. This federal authority clearly applies to passengers on airlines or cruise ships and people who staff airports and harbors. Federal authority may not, however, apply to people who are not engaging or about to engage in interstate commerce, employed in the transportation system, or otherwise in close contact with interstate travelers.
The provision falls short of authorizing blanket detentions or travel bans. Individuals can be apprehended and required to submit to an examination only if they are reasonably believed to be infected. Once they’re examined, the statute provides that they can be detained only if they are actually found to be infected and potentially contagious.
In other words, this is a catch-and-release policy: only those who are infected, or who may infect others who will cross state lines, can be quarantined. Thus, unlike travel from foreign countries, the federal government can’t impose blanket travel bans between states. The statute is oriented toward identifying individual Typhoid Marys, not toward closing state borders or instituting quarantines during a pandemic.
Governors and mayors have gone far beyond these federal powers in imposing restrictions on individuals and businesses: closing schools, shuttering businesses, imposing “shelter in place” and “stay a home” orders, and even sometimes placing restrictions on people coming from hotspots to their states. Federal powers to impose similar restrictions are quite limited, as we have seen, and most presidential powers relate to obtaining and allocating funding and resources to the states.
Because federal powers are primarily designed to assist state responses, the President also has limited ability to override a state’s public health measures. Just as the President lacks authority to impose social distancing requirements on the general population, the President has no authority to override state requirements. Thus, it is incorrect to say, as President Trump did recently, that “[t]he president of the United States calls the shots,” and that states “can’t do anything without the approval of the president of the United States.”
The reasons why the federal government’s primary role is supportive rather than controlling are rooted in American federalism. Sweeping federal regulation of noncommercial individual activities would be problematic. As the Supreme Court has made clear, the federal government has limited power to regulate noncommercial conduct by individuals. Exceptions include conduct that uses the channels of interstate commerce or directly impacts commerce. The Court has also ruled that the federal government lacks the power to force states to implement federal mandates. These rulings are controversial among scholars. Whether or not the Court was right to constitutionalize these precepts, they do reflect much of the de facto division of responsibilities between the states and the federal government.
Federal public health laws reflect a similar understanding of federalism. The federal government’s power to regulate individuals is limited to situations with a clear link to interstate travel. Under the public health laws, the federal government’s critical responsibilities do not involve control of individuals. Rather, they involve providing funding and resources to enable states to do their jobs.
There is an obvious worry about this allocation of responsibility for national pandemics. States with lax or ineffective state governments can act as disease reservoirs that can re-infect states that have taken more rigorous steps. On the other hand, this federalist arrangement also allowed states to leap ahead of the federal government in public health measures. Consequently, states like California and Washington, which were the first to experience infections, have been able to tamp down what otherwise might have been explosive disease growth. In a more centralized governance system, Trump’s laggardly response to the coronavirus would have been far more harmful. This failure to provide more rapid and vigorous federal support, however, seems to have left state governments struggling.
Daniel A. Farber: Sho Sato Professor of Law and Faculty Director of the Center on Law, Energy, and the Environment, University of California, Berkeley.
