Federal Executive Emergency Authorities to Address COVID-19
On March 13, standing in the White House Rose Garden, President Trump announced a national emergency in response to the coronavirus outbreak in the United States. That announcement triggered two federal statutes that grant the executive special authorities in times of crisis: the National Emergencies Act and the Stafford Disaster Relief and Emergency Assistance Act. Previously, on Jan. 31, Health and Human Services (HHS) Secretary Alex M. Azar II had determined under the Public Health Service Act that a nationwide public health emergency had existed since Jan. 27.
Since then, Congress has passed multiple bills to address the havoc wreaked by the coronavirus and the president has invoked the Defense Production Act (DPA). While the public waits for further clarity on some of these responses—such as the extent to which the president will utilize the DPA to push companies to manufacture medical equipment—the National Emergencies Act, the Stafford Act and the Public Health Service Act are already available for the president to deploy. The Food, Drug, and Cosmetic Act also gives HHS the authority to use unapproved medical products when the secretary declares that another type of public health emergency exists.
To date, Trump has exercised some, but certainly not all, of his potential statutory emergency authority under the National Emergencies Act, the Stafford Act, and the Public Health Service Act. What other powers remain untapped? Below, we review the four statutes that form the backbone of the executive’s emergency powers during a health crisis.
National Emergencies Act Declaration
Trump’s March 13 national emergency declaration under the National Emergencies Act (NEA) was relatively narrow. As Lawfare previously reported, the declaration relies on Sections 201 and 301 of the NEA. Section 201 authorizes the president to declare a national emergency, while Section 301 enables access to statutory emergency authorities otherwise unavailable to the president. To exercise those statutory authorities, the president must specify the provisions of law under which he and other officials will act.
Trump’s declaration only specified Section 1135 of the Social Security Act, which permits the secretary of HHS to waive or modify certain requirements of Medicare, Medicaid, and the Children’s Health Insurance Program and of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule throughout the duration of the emergency. The secretary must provide advanced written notice of the waiver to Congress.
When President Obama declared a national emergency with respect to the 2009 H1N1 influenza pandemic, he specified that the secretary could utilize this same authority under Section 1135 of the Social Security Act. From 1978 to 2018, 59 national emergencies were declared under the NEA, but the H1N1 declaration was the only one that was related to a pandemic.
There are 136 statutes that become available when the president declares a national emergency; 96 of these authorities become available immediately after the president signs the emergency declaration. Given this broad swathe of available powers, which additional statutes could Trump deploy to combat the coronavirus pandemic?
Part of the Tariff Act of 1930, codified at 19 U.S.C. § 1318(a), provides that when a president proclaims there is an emergency, the president may authorize the secretary of the treasury to permit duty-free importation of supplies for use in emergency relief work, which includes medical and surgical supplies as well as a catch-all for other supplies. A recent Congressional Research Service (CRS) overview of trade-related measures available to increase access to medical goods during the pandemic notes that the president can use Section 1318(a) to reduce or eliminate tariffs on those goods, though according to the report, this use of the statute may raise concerns under the nondelegation doctrine.
Subsection (b) provides that when it is “necessary to respond to a national emergency declared under the National Emergencies Act,” the president may take the following measures on a temporary basis: “[e]liminate, consolidate, or relocate any office or port of entry of the Customs Service”; “[m]odify hours of service, alter services rendered at any location, or reduce the number of employees at any location”; and, quite broadly, “[t]ake any other action that may be necessary to respond directly to the national emergency or specific threat.” The U.S. Customs and Border Protection (CBP) commissioner may also temporarily close any customs office or port of entry, “or take any lesser action,” when it is “necessary to respond to a specific threat to human life or national interests,” even when there is no declared national emergency. On March 24, the homeland security secretary and CBP announced two temporary travel restrictions pursuant to Subsection (b) for Canada and Mexico. Travel through the land ports of entry and ferry terminals of the borders was limited to “essential travel.”
42 U.S.C. § 217 authorizes the president to use the U.S. Public Health Service Commissioned Corps, a division of HHS, “to such extent and in such manner as shall in his judgment promote the public interest.” The Commissioned Corps is a “uniformed service of public health professionals.” In wartime or in a time “of emergency involving the national defense proclaimed by the President,” the president may issue an executive order declaring the Commissioned Corps to be a military service (President Truman did so in 1945). Among other things, the corps responds to disease outbreaks. About 300 officers were sent to staff a U.S. field hospital in Liberia during the Ebola outbreak.
The Public Health Service includes a commissioned “Regular Corps” and a “Ready Reserve Corps for service in time of national emergency.” Another statute accordingly provides that certain restrictions on the promotion of commissioned officers in the Regular Corps do not apply during a national emergency. This includes the authority for the president to promote “any commissioned officer of the Regular Corps in any grade in any professional category ... to any higher grade in such category, up to and including the director grade, whether or not a vacancy exists in such grade.” Presidents Eisenhower and Johnson issued executive orders delegating the authority to waive restrictions on Public Health Service promotions to HHS and its predecessor, the Department of Health, Education, and Welfare.
Part of the Defense Production Act (DPA), 50 U.S.C. § 4533, authorizes the president, in order to “create, maintain, protect, expand, or restore domestic industrial base capabilities essential for the national defense,” to provide for “purchases of or commitments to purchase an industrial resource or a critical technology item, for Government use or resale” and “for the development of production capabilities,” among other things. The president may use these authorities outside a state of emergency, but after declaring a national emergency he may waive procedural and substantive limitations in this statute.
Thus far, the Trump administration’s position on the DPA has been muddled. Though the president has repeatedly said he is invoking the DPA, he has not actually compelled the manufacture of any equipment under these authorities. On March 18, Trump issued an executive order delegating authority to the HHS secretary to implement the DPA. And on March 27, Trump ordered HHS to use its authorities to “require General Motors Company to accept, perform, and prioritize contracts or orders for the number of ventilators” that the HHS secretary finds appropriate. The order leaves it up to the discretion of the secretary as to what is “appropriate” and is limited to General Motors. (A former top Homeland Security official noted to FiveThirtyEight recently that the government’s nonemergency procurement authority could also go far to stimulate supply for needed equipment.)
Trump has also issued an executive order under the DPA delegating to the HHS secretary the authority “to prevent hoarding of health and medical resources necessary to respond to the spread of COVID-19 within the United States.” Azar then announced a list of medical equipment that may not be hoarded, including face masks and ventilators. And law enforcement has wasted no time: On March 30, the Justice Department charged a Brooklyn man in possession of medical supplies included on Azar’s list with assaulting a federal officer and with making false statements to law enforcement.
Contracts and Finances
Another portion of the DPA, 50 U.S.C. § 4531(a)(2), provides that the president may authorize an agency to guarantee loans by private institutions to finance production capabilities or supplies the agency deems to be “necessary to create, maintain, expedite, expand, protect, or restore production and deliveries or services essential to the national defense.” In a national emergency, the agency can do this without needing to satisfy normal procedural and substantive requirements for guarantees. However, loans to private business enterprises under 50 U.S.C. § 4532 may be made in a national emergency only if the president meets certain requirements.
Section 4531(d)(1) permits the federal government to make a guarantee or obligation relating to a domestic industrial base shortfall that would cause the aggregate outstanding amount of all guarantees to exceed $50,000,000 without following procedural requirements. A domestic industrial base is defined as “domestic sources which are providing, or which would be reasonably expected to provide, materials or services to meet national defense requirements during peacetime, national emergency, or war.”
Pursuant to Public Law 85-804, codified at 50 U.S.C. §§ 1431–35, the president may authorize agencies that exercise functions related to national defense to enter into, amend, or make advance payments on contracts, subject to certain restrictions, “without regard to other provisions of law” on contract formation, performance, amendment, or modification, as long as it is “in the interest of national defense.”
As some law firms have noted, the government could use this authority in the current pandemic to grant relief in the form of loans or loan guarantees to contractors who are facing lost profits or hardships as a result of complying with DPA orders. During the Ebola outbreak, President Obama issued a memorandum directing that the United States Agency for International Development (USAID) could utilize this authority with respect to contracts in Africa where it was responding to the disease. The USAID contractor, its employees, or subcontractors would have significant exposure to Ebola, and the memorandum stated that the USAID administrator could exercise the authority “solely for the purpose of holding harmless and indemnifying contractors with respect to claims, losses, or damage arising out of or resulting from exposure, in the course of performance of the contracts, to Ebola.”
Pursuant to 42 U.S.C. § 5177a, the secretary of agriculture may also make grants to public agencies or private 501(c)(3) organizations with “experience in providing emergency services to low-income migrant and seasonal farmworkers” if the secretary “determines that a local, State or national emergency or disaster has caused low-income migrant or seasonal farmworkers to lose income, to be unable to work, or to stay home or return home in anticipation of work shortages.”
42 U.S.C. § 4625 (c)(3)(B) concerns a statutory requirement that individuals who have been displaced by a federal project may not be required to leave their dwelling unless they have had a reasonable opportunity to relocate to a comparable replacement dwelling. § 4625 (c)(3)(B) states that this requirement does not apply in the case of a national emergency declared by the president.
How Long Will This Last?
A national emergency under the NEA can be terminated either by Congress through a joint resolution or by a subsequent presidential proclamation. Each chamber of Congress must meet no later than six months after a national emergency is declared, and a minimum of every six months after that, to consider a vote on a joint resolution terminating the emergency. The statute also provides procedural rules that Congress must follow in issuing a termination resolution but reserves the right for each chamber to change the rules. The president may veto a joint resolution, requiring a two-thirds override. A national emergency terminates automatically on the annual anniversary of the original declaration unless the president transmits a notice to Congress within the 90-day period prior to this date and publishes it in the Federal Register. The president recently renewed the national emergency with respect to the southern border in this manner.
Public Health Service Act
The Public Health Service Act establishes the core of the government’s emergency powers during a public health crisis. While the statute dates back to 1944, it has been subsequently amended numerous times to address modern threats like, among other things, pandemic disease. (As recently as 2019, in an uncontroversial bill, Congress made a number of relatively minor adjustments to the law.)
Section 319 provides the executive—specifically the HHS secretary—additional powers upon a formal emergency declaration. That provision grants the HHS secretary broad authority to determine when “a public health emergency” exists. On Jan. 31, after six COVID-19 cases had been confirmed in the United States, Secretary Alex Azar declared a public health emergency under Section 319.
The additional authority triggered by the declaration is unclear. The main provision of the statute unlocks the secretary’s power to:
take such action as may be appropriate to respond to the public health emergency, including making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease or disorder.
There are potentially competing interpretations of this provision, which has never been litigated. On one reading, the statute could be understood as a congressional delegation of sweeping authority to the secretary to take any action that could be considered “appropriate” in a time of crisis. (Since no other statute authorizing special emergency powers contains the phrase “as may be appropriate,” it’s meaning can’t be inferred from other statues.)
However, principles of statutory interpretation and constitutional considerations may counsel in favor of a more narrow reading. Under the canon of ejusdem generis, it could be necessary to read the word “appropriate” as consistent with the relatively administrative nature of the affirmative powers the statute lists: “making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations.” In addition, Section 319 is likely limited by the fact that the Constitution grants police powers to the states rather than the federal government. (As a post-Katrina CRS report noted: “There is also no precedent for [Section 319] to be used to supersede or assume public health authorities that are generally reserved to states.”) This also seems to be the reading offered by then-Acting Deputy HHS Secretary and the current Deputy Secretary Eric Hargan in a 2008 article. “The public health emergency declaration does allow use of some waivers of programs and other powers, but despite what some people think, it is nowhere near as sweeping as a declaration of martial law,” he wrote.
The statute also provides a similar structure with respect to the secretary’s use of funds from the Public Health Emergency Fund (PHEF), a special account that can be accessed only after Section 319 has been invoked. (The account previously laid dormant, but a bill signed into law on March 18 to provide for coronavirus response appropriated $1 billion for it.) The provision sets out a number of ways in which the PHEF may be used, including facilitating coordination between federal and state authorities, making grants and strengthening biosurveillance capabilities, among other things. However, under 42 U.S.C. § 247d(b)(2)(F), a catch-all provision allows the secretary to “carry out other activities, as the Secretary determines applicable and appropriate.” In his 2008 article, Hargan emphasized the practical limits of Section 319 since “[j]ust because part of the federal government has statutory power to do something, it cannot practically do it if it lacks the funds.” Of course, the recent influx of funds may allow the administration to exercise authority that was not previously possible when the account was, in Hargan’s words, “a dry hole.”
Invoking Section 319 also imposes reporting requirements on the administration. The emergency must be renewed within 90 days. The declaration must be submitted to Congress in writing. And the administration must report on the use of its PHEF spending no later than 90 days after the end of each fiscal year.
In addition, unrelated to the executive’s authority under Section 319, the HHS secretary holds a range of powers that may be invoked in a time of crisis without a formal declaration of emergency. For example, as Robert Chesney explored in depth for Lawfare, the Public Health Service Act and certain regulations provide for federal mandatory quarantine authority regardless of the secretary’s emergency declaration. And 42 U.S.C. § 264 allows the surgeon general, who reports to HHS leadership, 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.” This provision is implemented under 42 C.F.R. Part 70.2, which gives the director of the Centers for Disease Control and Prevention (CDC) the authority to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary” when the director makes the determination that measures taken by state or local official are “insufficient to prevent the spread of ... communicable diseases.” As Chesney recently suggested, Section 264 could plausibly be the authority for a federally imposed regional quarantine, though the president has since backed away from his sudden proposal to quarantine the states of New Jersey, New York and Connecticut.
Additionally, 42 U.S.C. § 265 as implemented by 42 C.F.R. Part 71 contains regulations to prevent the introduction, transmission and spread of communicable diseases into the United States. On Jan. 31, the CDC issued a federal quarantine order—perhaps under this authority—to 195 U.S. citizens returning from Wuhan, China. And a recent rule promulgated by Azar expanded those regulations, which the CDC relied on to issue an order to restrict border crossings for non-U.S. citizens crossing into the U.S. from Mexico and Canada without proper documentation.
Also, even without a Section 319 declaration, the administration can deploy the Strategic National Stockpile, the federal government’s supply of pharmaceuticals and medical supplies, for use in a public health emergency. The statute gives both the Homeland Security secretary (under 42 U.S.C. § 247d–6b(a)(3)(F)) and the HHS secretary (under § 247d–6b(a)(3)(G)) the ability to “deploy the stockpile.” The recent stimulus bill added $16 billion to the stockpile, as states do not have adequate medical supplies to respond to the pandemic.The table at the end of this report from the Government Accountability Office details in full the authorities available without a Section 319 declaration.
Additionally, a 2005 amendment to the Public Health Service Act also allows the HHS secretary, upon a declaration, to waive liability for manufacturers working on ways to combat a disease, including diagnostics, therapies and vaccines. Azar made that declaration on Feb. 4. A recent bill extended the liability protections to manufacturers of N-95 masks, which are in high demand from health care workers.
Past precedents offer little guidance on the question of how far the executive’s statutory authority might run in the current health crisis. In response to outbreaks of the H1N1 flu in 2009–2010 and the Zika virus in 2016–2017, the Obama administration invoked its authority under Section 319, but these declarations were relatively minor in scope—allowing, for example, the federal government to reassign local health officials to work outside of their federally funded programs among other administrative waivers. In 2009, then-Homeland Security Secretary Janet Napolitano called the initial H1N1 emergency declaration a “standard operating procedure” and added that she would have prefered to call it a “declaration of emergency preparedness.” Even when the George W. Bush administration invoked Section 319 in certain Gulf region states following Hurricane Katrina, the government largely used its authority to waive administrative hurdles related to providing health care.
Thus far, at least publicly, the Trump administration has not invoked Section 319 in a manner that suggests a particularly expansive view of executive power. At a press briefing at the White House on Jan. 31 announcing the public health emergency, Azar emphasized that any U.S. citizens returning from certain areas in China would be subject to a mandatory 14-day quarantine, but it appears that the administration relied on federal immigration law, rather than the Public Health Service Act, for that authority. Since then, the president has made reference to the public health emergency declaration in an executive order granting flexibility to states in their testing procedures, a presidential memorandum on making general use respirators available, and the National Emergencies Act proclamation. Meanwhile, HHS officials have not relied on Section 319 in a number of actions taken in response to the current crisis.
Food, Drug, and Cosmetic Act
Section 564 of the Federal Food, Drug, and Cosmetic Act, codified at 21 U.S.C. § 360bbb–3, provides for the HHS secretary to authorize the use of medical products in emergencies. The secretary may authorize the use of an unapproved drug, device or biological product, or an unapproved use of an approved product. This power is activated when the secretary determines, independent from a Section 319 declaration, that there is a public health emergency with “a significant potential to affect national security or the health and security of United States citizens living abroad.”
Azar made such a determination on Feb. 4, which permitted him to authorize the emergency use of in vitro diagnostics for detection and/or diagnosis of the virus that causes COVID-19. Additionally, on the basis of the Feb. 4 determination, Azar declared on March 2 that circumstances exist justifying the authorization of emergency use of personal respiratory protective devices during the outbreak. The FDA website states that “[m]anufacturers and strategic stockpilers are able to submit a request to FDA at in [sic] order to have their products added to the EUA [Emergency Use Authorization].” A recent Washington Post report noted that “health experts say the Food and Drug Administration has moved with uncommon speed” to authorize the state of New York’s plan to distribute doses of antimalarial drugs to the seriously ill.
A March 30 news release provides a roundup of the FDA’s actions in response to the pandemic, including recent emergency use authorizations. Such emergency use authorizations were also used to address Ebola, the MERS coronavirus and the Zika virus. The FDA has also relaxed some regulations related to ventilators, including issuing guidance saying that it will practice “enforcement discretion” by allowing ventilator manufacturers to make some modifications of hardware, software and materials.
Stafford Disaster Relief and Emergency Assistance Act
The Stafford Act allows the president to provide federal resources to state and local governments during catastrophes. At a White House news conference last month, Trump said: “We have very strong emergency powers under the Stafford Act .... I have it memorized, practically, as to the powers in that act. And if I need to do something, I’ll do it. I have the right to do a lot of things that people don’t even know about.”
Utilizing the Stafford Act for public health crises is unusual, and a president has declared an emergency pursuant to the Stafford Act only once in this context: In 2000, President Clinton declared two Stafford Act emergencies in New York and New Jersey in response to outbreaks of the West Nile virus, providing about $5 million in assistance.
Relevant to the current health crisis, the act allows the president to make two types of declarations. Under 42 U.S.C. § 5191, the president may declare an “emergency,” which is defined as “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[.]” In addition, 42 U.S.C. § 5170 establishes the president’s authority to declare a “major disaster,” which under the statute “means any natural catastrophe.” As a CRS report summarizes, “Considerably less assistance is authorized to be provided under an emergency declaration in comparison to that authorized for a major disaster declaration.”
Both emergency and national disaster declarations are based on a governor’s request that the president declare that either exists. In both cases, the request must be based on a finding that the situation is of “such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.” The governor must also “take appropriate response action under State law and direct execution of the State’s emergency plan” and provide information about measures taken.
Trump’s March 13 announcement declared an “emergency” under 42 U.S.C. § 5191. As Lawfare analyzed previously, Trump allowed the Federal Emergency Management Agency (FEMA) to “provide, as appropriate, assistance pursuant to section 502 and 503 of the Stafford Act.” Section 502 establishes the types of disaster assistance available under the emergency declaration.
It is unclear how much of Section 502 the president’s broadly worded announcement actually invoked, however. The first subsection of 502 provides that, upon presidential direction, an agency may utilize its authorities and resources—including “personnel, equipment, supplies, facilities, and managerial, technical and advisory services”—to support state and local emergency assistance efforts. Trump’s announcement appears to unlock this role for FEMA. Additionally, Section 502(a)(2) states that the president may coordinate all disaster relief assistance, and Trump’s declaration accordingly instructs the FEMA administrator to coordinate and direct other federal agencies in providing assistance under the Stafford Act. HHS, however, will continue its role as the lead federal agency in the response to COVID-19.
But it’s not clear whether Trump’s reference to Section 502 invokes the statute’s subsequent subsections as well, or only the above-mentioned sections. Under these provisions, the president may also provide technical, advisory, and emergency assistance, and assist state and local governments “in the distribution of medicine, food, and other consumable supplies, and emergency assistance.” Notably, the president can provide federal assistance to households and individuals under one of the major disaster provisions. This includes financial assistance, including direct services, housing assistance, medical, dental, child care, and funeral expenses, and personal property, transportation, and other expenses.
The president also has additional authorities under 502 to “provide accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate severe damage.” In this case, the president must, “to the fullest extent practicable, promptly notify and coordinate” with a state where the support is provided. In doing so, the president may not “delay or impede the rapid deployment, use, and distribution of critical resources to victims of an emergency.” If all of this assistance is not enough, “the President may also provide assistance with respect to efforts to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe, including precautionary evacuations.”
Section 503 covers the amount of federal assistance available. In general, the assistance is capped at $5 million. However, this can be exceeded if the president determines that “(A) continued emergency assistance is immediately required; (B) there is a continuing and immediate risk to lives, property, public health or safety; and (C) necessary assistance will not otherwise be provided on a timely basis.” If the president makes such a determination, the president must report the nature and extent of the assistance requirements to Congress and “propose additional legislation if necessary.”
The Trump announcement also concluded by inviting governors and tribal leaders to request a “major disaster” declaration in light of the current “severity and magnitude nationwide.” (As noted above, the president can only declare a major disaster on the request of local leadership.) Even though the definition of a “major disaster” is restricted to a “natural catastrophe” including “any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought,” and “any fire, flood, or explosion,” the Trump administration has nonetheless approved major disaster requests from governors in nearly a dozen states.
Sections 402–419 govern the president’s authority under a “major disaster” declaration, providing considerably more authority than a “emergency” declaration. This includes the administration’s discretion to provide general federal assistance (Sec. 402); essential assistance, including to victims directly (Sec. 403); grants to prevent future disasters (Sec. 404); “financial assistance” and “direct services to individuals ... who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means” (Sec. 408); unemployment assistance (Sec. 410); food assistance (Secs. 412 and 413); relocation assistance (Sec. 414); legal services (Sec. 415); and loans to local governments (Sec. 417).
For the states of California, New York, and Washington, the Trump administration, under both the “emergency” and “major disaster” declaration, has authorized the Department of Homeland Security “to fund 100 percent of the emergency assistance activities associated with preventing, mitigating, and responding to the threat to public health and safety posed by the virus that these States undertake using their National Guard forces.”
As the Stafford Act is generally invoked in natural disasters, past precedents are of limited guidance for what a response to a public health crisis might look like. However, the response to Hurricane Katrina may shed some light on the difficulties government officials encounter when utilizing authorities under the Stafford Act. The federal Katrina response is generally viewed as a failure of the federal government’s capacity to deploy its statutory authority fast enough, due to what Christina E. Wells describes as officials’ “failures to understand or utilize their existing powers.” Whether the current administration will utilize its Stafford Act authority to the fullest potential degree to respond to the current crisis remains to be seen.
A close read of the core emergency statutes makes apparent that Congress has delegated considerable power to the president in times of national crisis. Thus far, the Trump administration’s response to the pandemic has been characterized by broad presidential invocations of statutes without full enumerations of their potentially applicable provisions, as well as delegation of discretionary decision-making authority to agencies. But many more emergency authorities remain at its disposal.