The global coronavirus crisis continues to unfold at lightning speed, disrupting travel, the economy, and everyday life. In response to the pandemic, President Donald Trump declared a state of national emergency on March 13. And as Professor Alexandra Phelan astutely noted in an earlier Just Security piece, there are currently 35 state emergency declarations. Among the questions that state and federal officials should consider as they look for options and authorities to combat the coronavirus crisis are:

  • What emergency legal authorities are being invoked?
  • What emergency legal authorities are not (yet) being invoked?
  • What role can the military play in combatting the coronavirus emergency?

In what follows, I answer these three questions and address the complex federalism issues they pose.

What Legal Authorities are Being Invoked?

Trump actually declared an emergency using two different statutes on Friday afternoon: (1) an emergency within Section 201 of the 1976 National Emergencies Act (NEA); and (2) an emergency within Section 501 (b) of the 1988 Stafford Act. These two emergency declarations follow an earlier public health emergency announced in January by Health and Human Services (HHS) Secretary Alexander Azar pursuant to the Public Health Service Act.

At present, we are therefore operating under three different coronavirus emergencies that rely upon three distinct legal authorities.

First, the HHS emergency declaration permits flexibility in assigning personnel to respond to the crisis and waives certain laws to respond more expeditiously to the crisis. The Food and Drug Administration has issued emergency use authorizations pursuant to this authority for the past 10 weeks, but it has not proven to be enough.

Second, the NEA declaration is being used to issue medical waivers under Section 1135 of the Social Security Act. This should facilitate the provision of medical services. It allows Azar to waive or modify several possible barriers to the provision of medical services: certification requirements for an individual health care provider, state-based licensing requirements, and limitations on payments furnished to individuals enrolled in Medicare. Of note, the NEA is the same statute that the president relied on when declaring the migrant crisis at the border an “emergency” in 2019, and courts have effectively deferred to the president in making this determination.

The third emergency declaration, issued pursuant to the Stafford Act, is more complicated. It is largely designed for the federal government to supplement the efforts at the state and local level following a natural disaster at the request of the state. This reflects the general national response framework that is more “bottom up” from states and localities not “top down” from the federal government. The Stafford Act’s statutory construct specifies two levels of possible action: (1) an emergency declaration; or (2) a major disaster declaration. Here, Trump has issued an emergency declaration, but not a major disaster declaration.

Within the Stafford Act, “emergency” is broadly defined to include:

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.

In declaring the coronavirus an emergency, the president has made the determination that the federal government has “primary responsibility” for the coronavirus response. This emergency declaration allows the Federal Emergency Management Agency (FEMA) to provide physical and financial support, to include access to the all-important Disaster Relief Fund. It also includes an all important “catchall” provision that authorizes FEMA to direct any federal agency to utilize its authorities and resources (personnel, equipment, supplies) to state and local officials that are at the frontlines of the coronavirus response.

While the Stafford Act places a limit on federal assistance for a single emergency (not to exceed 5 million dollars), there are several exceptions that will likely allow the president to exceed this threshold. And I anticipate that FEMA will heavily rely upon the catchall provision noted above. Coordination among numerous agencies will be key and this is increasingly becoming one of the most complex interagency efforts in U.S. history that cuts across agencies and all levels of government (federal, state, local). Historically, FEMA has responded to emergencies following extreme weather events, but the coronavirus is a health crisis that is being led by HHS and the Centers for Disease Control and Prevention. Unfortunately, the White House inexplicably disbanded its pandemic office from the National Security Council in 2018, which could have played an important coordinating role in today’s response.

What Legal Authorities are Not Being Invoked?

The president has not declared the coronavirus a “major disaster” under the Stafford Act, nor can he do so without a specific request from each individual state. This is significant, as a major disaster declaration unlocks additional federal authorities, funding, and resources compared to an “emergency” declaration under the Stafford Act. Complicating matters, the coronavirus response does not neatly fit into the definition of a “major disaster” in the Stafford Act, which is largely focused on assistance following the aftermath of extreme weather events.

“Major disaster” is more narrowly defined than “emergency” under the Stafford Act to encompass:

any 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, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

It remains unclear if a pandemic could qualify as a major disaster within the text and meaning of the Stafford Act as pandemics are not one of the specific catastrophes listed, nor has this been tested. Historically, presidents have made major disaster declarations in the aftermath of major storm events — think of Hurricanes Harvey, Sandy, and Maria – as opposed to in response to epidemics or pandemics, whose status as a major disaster is unsettled.

Whether the coronavirus qualifies as a major disaster is significant. Put simply, the president can do more in response to a major disaster through the provision of “essential assistance” to include distribution of medicine and food, use of federal resources (people, supplies, facilities), emergency medical care, and provision of temporary facilities. As discussed below, a major disaster declaration may also allow the government to tap into additional military resources — such as emergency work essential for the preservation of life and property.

Of note, in 2000 President Bill Clinton invoked the Stafford Act in declaring an emergency in response to the West Nile virus in New York and New Jersey. But Clinton addressed the West Nile through the emergency declaration, as opposed to a major disaster declaration. And President Obama addressed the last pandemic in the United States — the H1N1 “swine flu” — via the National Emergencies Act, not the Stafford Act. Governors from individual states have to request a major disaster declaration. In theory, we could quickly have 50 major disaster declarations, plus the three existing emergencies, for a total of 53 emergencies with different authorities for the coronavirus crisis. So the upshot is that we will be a bit in uncharted legal waters when the major disaster declaration requests from individual states comes across the president’s desk. To be sure, courts will often grant the president significant deference in making such security-related determinations, but the precise scope of the president’s authorities in response to a pandemic under the Stafford Act remains an open question.

What is the U.S. Military’s Role in the Coronavirus Emergency?

The military will be called upon to play a broader role as the crisis unfolds. New York State has already established a containment zone in New Rochelle, which has become a virus hotspot, and Governor Andrew Cuomo has called the state’s National Guard into service. Within the last 24 hours, seven states have activated their National Guards to respond to the spread of coronavirus and the Georgia governor just called up 2,000 troops “ Andy Slavitt, the former head of Medicare and Medicaid for President Barack Obama, said he believes calling up the Guard is a prudent move. And, New York Governor Andrew Cuomo argued over the weekend that the Army Corps of Engineers should be tasked with expanding hospital capacity. I agree. And military bases around the nation have already been established as quarantine areas for affected patients.

Going forward, the military will play an even greater role in the crisis through (1) additional state National Guard assistance; and (2) military support to state and local response efforts — what is known as “Defense Support to Civil Authorities.”

First, governors have the authority to call their state National Guard to a “state active duty status” to assist with the crisis response. Significantly, the Posse Comitatus Act—which prohibit domestic military law enforcement operations — does not apply to state National Guards when they are operating pursuant to state (“Title 32”) authorities. Nor does it apply to the U.S. Coast Guard. So both the National Guard and Coast Guard can and will provide a full menu of services and support in response to the crisis: providing medical aid, enforcing quarantine zones, and supplementing state and local law enforcement as necessary. Only the so-called “Title 10” U.S. military is prohibited from taking an active part in domestic law enforcement. But as I have argued before, the Posse Comitatus Act does not prevent the Title 10 military from providing humanitarian assistance and medical support. More on that below.

Second, the United States has military installations with expertise, facilities, and resources that are already close to affected communities. The military may be asked to support the local authorities to respond to the crisis either as part of a Stafford Act major disaster declaration or from “Defense Support to Civil Authorities” (DSCA). Such requests are normally initiated by a request for DoD assistance from state or local civilian authorities. Historically, the military has responded to natural or man-made disasters pursuant to this underlying mission. Thankfully, response to “pandemic influenza and infectious disease response” falls into an already established category of response according to existing guidance and doctrine. Therefore, certain military units should already be trained to meet the coronavirus response, although the precise level and amount of training at specific installations and military hospitals remains unclear.

As noted above, the military (either federal/Title 10 or state/Title 32) can respond to any request for assistance from states and localities responding to the coronavirus. This is known as “immediate response authority.” This is designed for “imminently serious conditions and if time does not permit approval from higher authority.” This authority

can include emergency treatment, maintenance or restoration of emergency medical supplies, and the safeguarding of public health. So if a coronavirus outbreak develops in a community near a military installation, the military may be called upon to immediately offer its expertise and resources to assist the civilian population in its coronavirus response without further worrying about red tape and higher-level approvals.

As the coronavirus crisis unfolds, keep an eye on future major disaster declarations, and requests for military support. These three questions should help guide you.

Image: National Guard troops stand by as people wait to be tested for Coronavirus(COVID-19) at the State’s First Drive Through COVID-19 Mobile Testing Center at Glen Island Park in New Rochelle, New York March 13, 2020. Photo by TIMOTHY A. CLARY/AFP via Getty Images