25 March 2020

When Pandemic Strikes, Whose Law Protects You?

"The success or failure of any government in the final analysis must be measured by the well-being of its citizens. Nothing can be more important to a state than its public health; the state’s paramount concern should be the health of its people."

-Franklin Delano Roosevelt

COVID 19, a major pandemic disease, has begun infecting Americans at a still unknown rate. We, like the rest of the world, are still coming to grips with the risks created by this emergent infection. In the face of this considerable challenge, some have wondered exactly who within the US Government has the power and authority to address this nationwide public health crisis. Under the United States’ multi-tiered system of government, all power is initially reposed with the people, with a delegation of power to the states, followed by a limited delegation of “few and defined” powers to the federal government. So, is a nationwide pandemic a federal or a state issue? The answer is, not surprisingly, both.

The Supremacy Clause of the Constitution, found at Article 6, clause 2, sets out that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land.” Some powers, called “concurrent powers,” are shared by the States and federal government, including the power to tax and the power to create courts. Other powers are “reserved” under the 10th Amendment to the states. The power to regulate public health while not concurrent, touches upon both federal and state power.

States exercise so-called police powers, which include powers to protect the health, safety, and welfare of citizens. These powers may be exercised by public health agencies, sometimes called “health departments,” along with emergency services (i.e. fire, police). These powers are frequently delegated to state-level administrative agencies, which are generally responsible for public health, including health inspections, vaccination policy, epidemiology, regulating smoking, collecting medical data and licensing of medical professionals. States have primary quarantine and isolation authority over their citizens.

The power to regulate public health affecting the nation, that is, as it affects interstate commerce or the national border, is also exercised by the federal government.  Congress has passed several laws that empower federal agencies and actors in times of public health crisis. The power to make laws for the general public comes from Article 1, section 8, clause 1 of the US Constitution, which provides the Congress with the power to levy taxes "to pay the Debts and provide for the common Defence and general welfare of the United States." The so-called “Spending Clause” has been interpreted to confer a broad grant of power to Congress to spend for the general welfare, if that legislation is not used to confer a merely local benefit. The Commerce Clause, found in Article 1, section 8, clause 3 of the Constitution, empowers Congress to pass legislation that affects interstate commerce.

Multiple federal statutes empower various federal administrative agencies to act during large scale health crises. The US Dept. of Health and Human Services (HHS) is authorized by the 1944 Public Health Service Act (PHSA) to act for the public welfare in case of public health emergencies; the Secretary of HHS “shall lead all Federal public health and medical response to public health emergencies and incidents covered by the National Response [Framework].” HHS’ umbrella of agencies includes the Centers for Disease Control (CDC), Food and Drug Administration (FDA) and National Institute of Health (NIH). HHS has authority to temporarily assist states and municipalities with health emergencies by providing personnel equipment and supplies upon request. These powers are conferred by 42 USC §§ 243(c) and 247(b). The Secretary may act on an emergency basis if there is a public health emergency as described in section 319 of the PHSA, 42 USC §247a(a).

The Stafford Act (1988) authorizes the President to issue an emergency declaration in response to a threat or event that overwhelms state or local government, which declaration triggers access to disaster relief funds as may be appropriated by Congress, and authorizes Federal Emergency Management Agency (FEMA) to coordinate administering disaster relief to the states.

The Pandemic and All-Hazards Preparedness Act passed in 2006 identifies the Secretary of HHS as the lead federal official for public health emergency preparedness and response, appoints a new advisor to develop and acquire “medical countermeasures” (i.e. specialized medical technology), which includes obligations to maintain the Strategic National Stockpile of medical equipment and supplies, to support federal responses to public health emergencies,  including advanced information sharing with states, “all-hazards medical surge capacity” (i.e. the ability of HHS to provide surge capacity to local communities for public health emergencies), and to require improved hospital preparation in case of public health emergencies.

The Public Health Service Act (PHSA) Title 42 of the United States code (§319 361, 42 C.F.R. Parts 70, 71) formalized the US Federal government’s quarantine authority (limited to actions related to interstate commerce and the national border) and gave the United States Public Health Service division of HHS responsibility to “prevent the introduction, transmission and spread of communicable diseases from foreign countries into the United States.” HHS works closely with the Department of Homeland Security (DHS) to cooperate on quarantine and other public healthcare measures including vaccination plans pursuant to 42 U.S.C. §268. However, the federal quarantine powers apply to interstate and border quarantine issues.

The federal executive branch also has power to address nationwide health crises. The National Emergencies Act (NEA) (50 U.S.C. § 1601–1651) formalized the emergency powers of the President, while imposing procedural safeguards against their abuse. The Act enumerates 136 specific emergency powers, several of which relate to public health and safety. Executive Orders issued by the President also may affect health policy; for example, Executive Order 13375, issued on July 31, 2014, which included  “severe acute respiratory syndromes,” among the list of communicable diseases indicated under 42 U.SC. § 264 (“Regulations to control communicable diseases”) which may give rise to a quarantine, was used to optimize and quickly adapt existing law and policy to adjust for a feared SARS outbreak.

This high-level summary identifies some of the most important laws regarding public health, but only in a simplified way. Unlike most of the world’s governments, the U.S. government is uniquely transparent; extensive information about all of the above laws, entities, and regulators are only a few browser clicks away. Although we may not yet know the full impact that COVID-19 will have on our country, we can rest assured that extensive infrastructure is in place to allow our state and federal governments to mobilize considerable resources to protect us. Stay safe everyone. 

*TBI Note: Excellent perspective, and I'll add emphasis to the conclusion that "extensive infrastructure is in place to allow our state and federal governments to mobilize considerable resources to protect us."

Said another way, there are no legal impediments to taking the necessary actions to fight this pandemic with max force. It's just a failure of leadership and lack of political courage at this point. Don't count on the government to help. Protect yourself, your families, and your neighbors.*

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