On Friday, President Trump declared the covid-19 outbreak to be a national emergency. Besides upping the White House rhetoric level — and perhaps making it politically difficult for the president to repeat yesterday’s assertion that “I don’t take responsibility at all” for the initial response to the pandemic — what does that mean, in law and practice?
As it happens there were two different kinds of emergency declared today — and there might soon be more than 50! — using two different laws.
One is the National Emergencies Act (NEA), which we got to know during last year’s standoff between the president and Congress over the promised border wall. The emergency declared on Feb. 15, 2019 (and still in effect, by the way), allowed Trump to activate “standby” powers in a number of different statutes, including making it possible to take money appropriated for one purpose to be spent on the “emergency” matter. As I noted at the time, the NEA was passed to rein in presidential authority — but in fact wound up giving the president a good deal of discretion over what counts as an emergency and what statutory provisions to waive.
In the current emergency, Trump has used the NEA to use a section of the Social Security Act that allows the Secretary of Health and Human Services to waive or modify rules governing hospitals and health care providers as well as others relevant to Medicare and Medicaid programs. As the NEA requires, this is specified in the president’s proclamation.
But the president is also using another law that governs emergency funding and federal assistance, one that’s used far more often — although usually not quite like this. This law, the Stafford Act, is usually invoked to provide aid to states and localities damaged by natural disasters such as hurricanes or floods. It offers several types of declaration, including some for emergencies and some for “major disasters.” When state governors are overwhelmed by the scope of a disaster’s damage, they request relief under the Stafford Act.
But a provision of the act, Section 501(b), allows the president to use this unilaterally “when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority.” This category is relatively rarely used; a useful report by the Congressional Research Service gave the 1995 Oklahoma City bombing and the 9/11 attacks (on the Pentagon, specifically) as examples. The vast majority of the 380 emergency declarations CRS identified from 1974 through 2016 were for winter storms (115) and hurricanes (108). Power outages and droughts are also on the list.
It’s not clear that public health fits in this “primary responsibility” category. The Stafford Act has occasionally been used to address local, and very expensive, public health concerns — from New York’s toxic Love Canal in the 1970s to Flint’s drinking water crisis a few years ago. (For those inclined to look back, there was also the Louisiana “chlorine barge incident” in 1962.) But apparently the only time the Stafford Act was used to combat a contagious disease was to help New York and New Jersey kill mosquitoes after West Nile virus outbreaks there in the summer of 2000. That, of course, fell far short of a national invocation — and amounted to a total of about $7 million in federal aid.
Presumably today’s emergency will be rather more expensive, drawing tens of billions of dollars from FEMA’s Disaster Relief Fund. More broadly, an emergency declaration allows the president to, among other things, provide emergency assistance through federal agencies and indeed to
The Stafford Act specifically authorizes housing assistance, which is obviously needed when people are displaced by natural disasters. It lets the feds help state and local governments “in the distribution of medicine, food, and other consumable supplies, and emergency assistance.” Further, it allows the IRS to defer collecting taxes from affected individuals, relief specified in the president’s letter invoking the emergency.
It’s true that in the southern border wall case — and during last year’s government shutdown over the budget — the Trump administration has been quite creative in interpreting what might be considered agency “authorities” and “resources.” But the language of the act suggests all agencies must stay within their appropriations, and legal missions, as defined by Congress.
The key actors in the Stafford Act are the states. Even where the law, in Section 502(a)(8), allows for “accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate severe damage, which may be provided in the absence of a specific [state] request,” it goes on to say the federal government must coordinate with the state as quickly as possible.
Which is one reason we may wind up not with two declarations but 52 (or more) — the Trump administration has also encouraged state governors to request “major disaster” declarations under the Stafford Act. Presumably, with federal funds at the ready, governors will be happy to oblige.
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