Explainer: National Emergency Declarations and COVID-19

President Donald Trump has declared the COVID-19 pandemic a national emergency under the Stafford Act. This is not the first time a Stafford Act emergency declaration has been used for an infectious disease. In 2000, President Bill Clinton declared a Stafford Act emergency for outbreaks of West Nile Virus in New York and New Jersey.

President Trump’s Stafford Act declaration is in addition to the federal declaration of a public health emergency by Secretary of the Department of Health and Human Services (HSS) Alex Azar on January 31, 2020 and the currently 35 state emergency declarations across the United States. This Stafford Act declaration empowers the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) to assist state and local governments in responding to the outbreak by coordinating relief efforts and through the release of a reported $50 billion in funding. This figure indicates supplementary money to FEMA’s existing funds and authorization of a release of funds above typical Stafford Act national emergency funding limits. The declaration also authorizes the HHS Secretary to issue waivers under §1135 of the Social Security Act to ensure sufficient availability of health care during a pandemic. At the federal level there are a number of types of emergency declarations used to activate emergency response assistance, emergency funds, and to enable certain exemptions to legal regulatory requirements. However, a national emergency declaration does not permit waivers or intrusions on individual constitutional rights.

Declaration of an emergency under the Stafford Act

There is still a lack of clarity over the process leading to the declaration of COVID-19 as a national emergency. Typically, a Stafford Act declaration is triggered by a Governor of an affected state submitting a request to the President within 30 days of the incident. The request must be based on the Governor’s finding that the incident exceeds the state and local government’s ability to respond, and federal assistance is necessary to save lives, property, and public health. The Federal Emergency Management Agency (FEMA) assesses the request and makes a recommendation to the President.

Regardless of how exactly we got here. the Stafford Act authorizes two types of presidential declarations that enable federal relief: (1) a declaration of a major disaster (42 USC § 5170), which applies only to narrowly defined natural catastrophes,[1] and (2) a declaration of an emergency (42 USC § 5191), which applies to any event that the President determines requires federal assistance to supplement state and local capacity to save lives, protect property, public health and safety.

An emergency declaration authorizes the President to direct any federal agency to use existing resources to coordinate disaster relief, assist state and local authorities with health measures, including control efforts, and the distribution of consumable supplies (including medicines). A limit of $5 million in federal funding typically applies for each emergency. However, with congressional notification, the president is authorized to increase funding above the applicable limits. It is not clear yet whether this process has occurred.

The relief for a national “emergency” is more limited than the relief for a declared “major disaster.” An infectious disease outbreak could theoretically be classified as an emergency and result in a declaration of a major disaster. However, the generally accepted position is that the president is limited to declaring a naturally occurring infectious disease as an emergency. Depending on the progression of the COVID-19 outbreak, and congressional responses, there is arguable, although untested, scope for this position to be revisited and the outbreak to instead be considered as a major disaster, in order to release further funding.

In addition to the mobilization of FEMA’s financial and physical resources, the declaration allows for waivers under §1135 of the Social Security Act, allowing waiver of Medicare, Medicaid, and Children’s Health Insurance Program requirements that can limit health care service participation. This includes waiving in-state-licensure requirements that limit where health care workers can operate. The president highlighted in his speech waivers to limits on the provision of telemedicine, enabling individuals to get medical care remotely and without attending clinics, as well as removing timing and bed limits for certain hospitals, as well as limits on the use of facilities so that emergency capacities, such as other parts of hospitals or temporary facilities, can be quickly established.

Emergency Declarations and Civil Liberties

Public health measures that are imposed on fundamental rights, including liberty interests such as interstate travel, would be subject to strict scrutiny review by the Supreme Court. Strict scrutiny review requires that the government demonstrate a compelling interest. Public health is a classic compelling interest of government; however, the government must also demonstrate that the measures used are narrowly tailored to meet that compelling interest, and that the measures are the least restrictive means to achieve the public health goal. An emergency declaration does not displace these requirements. Throughout history, public health has been used as rationale for limiting rights, legitimately and illegitimately. Ensuring that measures taken are narrowly tailored and evidence-based, and the least restrictive measure necessary, not only protects civil liberties but also protects public health by maintaining the public trust in health authorities crucial for ensuring voluntary compliance with measures to protect public health.

The Range of Emergency Declaration Powers

The declaration of COVID-19 as a national emergency fits within a suite of declarations that can be made at the Federal level, depending on the scale of the public health emergency.

The Range of Emergency Declaration Powers
The declaration of COVID-19 as a national emergency fits within a suite of declarations that can be made at the Federal level, depending on the scale of the public health emergency.

Public Health Emergency Declaration (42 USC §319, Public Health Service Act)
The Secretary of HHS may declare a public health emergency to direct additional funding, commit resources, and waive certain laws to respond to a public health threat, such as releasing national stockpiles, permitting emergency use authorizations. HHS Secretary Azar declared COVID-19 a Public Health Emergency on January 31, 2020, and has issued emergency use authorizations for their response.

National Emergency (Non-Stafford Act) Declaration (50 USC §1621, National Emergencies Act)
The President can declare a national emergency under the National Emergencies Act, necessary for waivers of requirements under more than 100 statutory powers, specifying the relevant waivers. In conjunction with a public health emergency declaration, this empowers the HHS Secretary to make waivers under the §1135 Social Security Act. During the H1N1 Influenza pandemic, President Obama declared a Non-Stafford Act national emergency, authorizing a suite of waivers for the health response.

Emergency (Stafford Act) Declaration (42 USC §5191 Stafford Act)
If a public health emergency goes beyond the capacity of States to respond, and requires federal assistance to protect lives, property, and public health, the president may declare an emergency under the Stafford Act. This releases FEMA financial and physical support. In conjunction with a public health emergency declaration, this action also empowers the HHS Secretary to make waivers under the §1135 Social Security Act.

[1] The Stafford Act defines major disasters as a “natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought or regardless of cause, any fire, flood or explosion” (per 42 U.S.C. §5122 (2012). There’s an argument that — if the courts defers to the administration’s interpretation of this provision (per Chevron U.S.A., Inc. v. Natural Resources Defense Council) — infectious disease outbreaks could amount to a major disaster. If that interpretation was successfully used by an administration, broader relief options would be available. 

About the Author(s)

Alexandra Phelan

Faculty Member of the Center for Global Health Science and Security at Georgetown University School of Medicine; Adjunct Professor of Law at Georgetown University Law Center. Follow her on Twitter (@alexandraphelan).