Emergency powers and the pandemic: Reflecting on state legislative reforms and the future of public health response
Keywords:COVID-19 pandemic, public health emergency, governor emergency powers, state health official powers, public health emergency authorities, emergency powers, COVID-19 legislation, COVID-19 legislative challenges, pandemic preparedness
The first 2 years of combatting the COVID-19 pandemic necessitated an unprecedented use of emergency powers. States responded with an equally unprecedented flurry of legislative changes to the legal underpinnings of emergency response and public health authorities. In this article, we provide a brief background on the framework and use of governors and state health officials’ emergency powers. We then analyze several key themes, including both the enhancement and restriction of powers, emerging from emergency management and public health legislation introduced in state and territorial legislatures. During the 2020 and 2021 state and territorial legislative sessions, we tracked legislation related to the emergency powers of governors and state health officials. Legislators introduced hundreds of bills impacting these powers, some enhancing and others restricting emergency powers. Enhancements included increasing vaccine access and expanding the pool of eligible medical professions that could administer vaccinations, strengthening public health investigation and enforcement authority for state agencies, and preclusion of local orders by orders at the state level. Restrictions included establishing oversight mechanisms for executive actions, limits on the duration of the emergency, limiting the scope of emergency powers allowed during a declared emergency, and other restraints. By describing these legislative trends, we hope to inform governors, state health officials, policymakers, and emergency managers about how changes in the law may impact future public health and emergency response capabilities. Understanding this new legal landscape is critical to effectively preparing for future threats.
Hodge J, Anderson E: Principles and practice of legal triage during public health emergencies. NU Annu Surv Am Law. 2008; 64: 249-291.
Gostin L, Hodge J, Wiley L: Presidential powers and response to COVID-19. JAMA. 2020; 323(16): 1547-1548.
Sunshine G, Thompson K, Menon AN, et al.: An assessment of state laws providing gubernatorial authority to remove legal barriers to emergency response. Health Secur. 2019; 17(2): 156-161.
Gostin L, Wiley L: Governmental public health powers during the COVID-19 pandemic: Stay-at-home orders, business closures, and travel restrictions. JAMA. 2020; 323(21): 2137-2138.
Guy G, Lee F, Sunshine G, et al.: Association of state-issued mask mandates and allowing on-premises restaurant dining with county-level COVID-19 case and death growth rates-United States, March 1-December 31, 2020. Centers for Disease Control and Prevention. 2021: 350-354.
Joo H, Miller G, Sunshine G, et al.: Decline in COVID-19 hospitalization growth rates associated with statewide mask mandates–10 states, March-October 2020. Centers for Disease Control and Prevention. 2021: 212-216.
Moreland A, Herlihy C, Tynan M, et al.: Timing of state and territorial COVID-19 stay-at-home orders and changes in population movement—United States, March 1-May 31, 2020. Centers for Disease Control and Prevention. 2020: 1198-1203.
Gigliotti P, Martin E: Predictors of state-level stay-at-home orders in the United States and their association with mobility of residents. J Public Health Manag Pract. 2020; 26(6): 622-631.
Dunphy C, Miller G, Rice K, et al.: The impact of COVID-19 state closure orders on consumer spending, employment, and business revenue. Public Health Manag Pract. 2022; 28(1): 43-49.
Chetty R, Friedman J, Hendren N, et al.: The economic impacts of COVID-19: Evidence from a new public database built using private sector data. 2020.
Lozano Rojas F, Jiang X, Montenovo L, et al.: Is the cure worse than the problem itself? Immediate labor market effects of COVID-19 case rates and school closures in the U.S. 2020.
Dunphy C, Miller G, Sunshine G, et al.: The differential impact of reopening states with and without COVID-19 face mask mandates on county-level consumer spending. Public Health Rep. 2022; 137(5): 2000-2006.
Seegert N, Gaulin M, Yang MJ, et al.: Information revelation of decentralized crisis management: Evidence from natural experiments on mask mandates. 2020.
Zhao N, Yao S, Thomadsen R, et al.: The impact of government interventions on COVID-19 spread and consumer spending. 2022.
Volpp K, Cannuscio C: Incentives for immunity—Strategies for increasing COVID-19 vaccine uptake. N Engl J Med. 2021; 385(1): e1.
Gostin L, Salmon D, Larson H: Mandating COVID-19 vaccines. JAMA. 2020; 29: E1-E2.
Fernandes B, Navin MC, Rubinstein Reiss D: US state-level legal interventions related to COVID-19 vaccine mandates. JAMA. 2021; 327(2): 178-179.
Greenblatt A: Political power plays: Tension between the legislative and executive branches escalates. State Legis Mag. 2021.
Quinton S: Lawmakers move to strip governors’ emergency powers. Stateline. January 22, 2021.
APhA and NASPA: Pharmacist administered vaccines. 2020. 21. National Conference of State Legislatures: State immunization policy overview. 2021.
NASPA: Pharmacist Immunization Authority. 2022. 23. ASPR: Public Readiness and Emergency Preparedness (PREP) Act.
NASPA: Statewide protocol for pharmacist prescribing.
McDonald B, Goodman C, Hatch M: Tensions in state–local intergovernmental response to emergencies: The case of COVID-19. State Local Gov Rev. 2020; 52(3). DOI: 10.1177/0160323X20979826.
Haffajee R, Parmet W, Mello M: What is a public health “emergency”? N Engl J Med. 2014; 371(11): 986-988.
National Conference of State Legislatures: Legislative oversight of emergency executive powers. 2020.
National Conference of State Legislatures: Legislative oversight of emergency executive powers. 2022.
Rossi J: State executive lawmaking in crisis. Duke Law J. 2006; 56: 237-277.
The Policy Surveillance Program: Sentinel surveillance of emerging laws limiting public health emergency orders. 2022.
Network for Public Health Law: COVID-19 related opinions & orders from the U.S. Supreme Court. 2022.
Hall M, Mello M, Studdert D: The legal authority for states’ stay-at-home orders. N Engl J Med. 2020; 383(329).
Wiley L: Public health law and science in the community mitigation strategy for Covid-19. J Law Biosci. 2020; 7(1).
Katz R, Vaught A: Controlling tuberculosis in the United States: Use of isolation and other measures throughout the country. Disaster Med Public Health Prep. 2017; 11(3): 337-342.
Sunshine G, Barrera N, Corcoran AJ, et al.: Emergency declarations for public health issues: Expanding our definition of emergency. J Law Med Ethics. 2019; 47(2 Suppl.): 95-99.
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