States of Emergency

Peter Martin, Esq.

Gov. Charlie Baker declared a state of emergency in Massachusetts on March 10, 2020, resulting from the COVID-19 pandemic, citing Massachusetts General Laws chapter 17, section 2A and chapter 639 of the Acts of 1950 (the “Civil Defense Act”). The governor on May 28, 2021 both rescinded his earlier declaration, and declared this state of emergency terminated as of June 15, 2021, with respect to both statutes. Thirty minutes later, he declared that “an emergency exists that is detrimental to the public health in the Commonwealth” as of May 28, 2021, under MGL c. 17, section 2A and not under the Civil Defense Act. The net effect of these twin declarations was to vest in the commissioner of public health the authority, with the approval of the Public Health Council, to extend or adopt measures to respond to the pandemic. The commissioner on June 14, 2021 re-issued, among other things, 14 public health orders related to the pandemic, under what was referred to in some Department of Public Health documents as the “Modified Public Health Emergency” declared May 28, 2021.

This sequence of events, and the legal authorities cited, raise interesting questions about what is a public health emergency and how do we know when it is over. Under what circumstances should the normal legal constraints on the exercise of governmental power be loosened and what can a government not do during an emergency? As the COVID-19 pandemic, hopefully, evolves into an endemic respiratory disease like the annual flu, the modified public health emergency should likewise evolve into something else, but what, and when and why?

The two statutes cited by Gov. Baker vary widely in intent and scope. The 1950 law is clearly a relic of the Cold War; section 5 of that statute, which conferred on the governor the power to “issue a proclamation or proclamations setting forth a state of emergency,” begins by citing “the existing possibility of the occurrence of disasters of unprecedented size and destructiveness resulting from enemy attack, sabotage or other hostile action.” The trigger for such a proclamation is “the occurrence of any disaster or catastrophe resulting from attack, sabotage or other hostile action or by fire, flood, earthquake or other natural causes.” The scope of the governor’s powers under section 7 of the law is extremely broad: “the governor, in addition to any other authority vested in him by law, shall have and may exercise any and all authority over persons and property, necessary or expedient for meeting said state of emergency, which the general court in the exercise of its constitutional authority may confer upon him as supreme executive magistrate of the commonwealth and commander-in-chief of the military forces thereof.” The statute is silent as to the length of an emergency proclamation and contains no provisions for review, renewal or rescission of such a proclamation.

The second statute cited is far narrower. It governs the powers of the public health commissioner in certain circumstances. It states: “upon declaration by the governor that an emergency exists which is detrimental to the public health,” the commissioner, with the approval of the governor and the Public Health Council, may take such actions as “he may deem necessary to assure the maintenance of public health and the prevention of disease.” This statute is silent as to under what circumstances the governor may declare the existence of an emergency that is detrimental to the public health, and it does not provide for either time limits or periodic review of an emergency declaration.

This silence is typical of many state statutes regarding public health emergencies. Where a state law is silent on what constitutes a public health emergency, it generally permits the governor to make that determination in his sole discretion. Where a state law seeks to define “public health emergency” it does so with broad language; many states adopt language derived from The Model State Emergency Health Powers Act proposed in 2002 by the National Conference of State Legislatures. The Model Act definition of public health emergency is “an occurrence or imminent threat of an illness or health condition that is believed to be caused” by a number of events, including bioterrorism, a natural disaster or “the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin” that poses a high probability of a range of harms, from a large number of deaths or serious or long-term disabilities, to the “widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people” in the affected population. The breadth of this definition is understandable, if not terribly useful in distinguishing between serious public health concerns and “emergencies.”

The lack, or the breadth, of statutory guidance as to what constitutes a public health emergency is perhaps inevitable given the evident need to respond quickly to unanticipated and serious threats. However, that flexibility can lead to questionable invocations of authority, as when Gov. Deval Patrick declared in 2014 that the state’s opioid addiction epidemic was a public health emergency. That action prompted an article in The New England Journal of Medicine (2) in which the authors questioned whether Gov. Patrick’s actions met what the authors considered the “three key criteria” for declaring a public health emergency. They are: “the situation is exigent, the anticipated or potential harm would be calamitous, and the harm cannot be avoided through ordinary procedures.” Are any of widespread opioid addiction, or rampant gun violence, or chronic conditions such as obesity, or an enduringly high rate of traffic fatalities, a public health emergency justifying suspension of due process and legal protections?

The problem of finding a public health emergency in garden-variety health problems is exacerbated by the lack of a clear path out of emergency and into resumed normality. The Model State Emergency Health Powers Act permits the governor to terminate the public health emergency by executive order; limits emergency declarations to 30 days, but permits the governor to renew declarations for an unlimited number of additional 30-day periods; and gives the legislature the power to terminate the declaration but only with a majority vote of both chambers. It is worth noting, the federal National Emergencies Act (50 U.S.C. sec. 1601 et seq.) does not define “national emergency” and permits such emergencies to continue so long as the president annually notifies Congress the emergency continues. Since the enactment of the NEA in 1976, there have been 72 executive orders declaring emergencies, beginning with an order blocking Iranian government property in 1979; of those executive orders, 41 remain in effect (3). Both the Model Act and the NEA suggest regardless of whether the term emergency is adequately defined, statutory guardrails can be set up to ensure emergency declarations are time-limited and periodically reviewed.

It appears convincing the public a COVID-19 public health emergency continues may be getting harder. People objecting to vaccine mandates sometimes point to the fact that, so far, COVID-19 vaccines have received only “emergency use authorization” from the FDA which they argue legally permits vaccine refusal. The recent decision by the Fifth Circuit Court of Appeals regarding a proposed “emergency temporary standard” from the Occupational Safety and Health Administration, or OSHA, rests in part on citing stringent statutory language permitting an ETS to be promulgated only when exposure to hazards places workers in grave danger and the ETS is necessary to alleviate employees’ exposure to that grave danger. In the face of growing resistance to emergency measures and the absence of specific statutory or other guidance, when is it appropriate for a governor to rescind a public health emergency declaration?

It appears Gov. Baker’s May 28 actions were a measured step away from the extraordinary “civil defense” powers conferred on him by the Civil Defense Act and toward the more limited and consultative exercise of power, in conjunction with the Public Health Council and the commissioner of public health, oriented specifically to “the maintenance of public health and the prevention of disease.” What remains unclear is what the next step may be, and how it will be justified. Statutory guidance on the length of a governor’s public health emergency declaration and some requirement for periodic review of that declaration by third parties would provide a clearer path from pandemic emergency steps to normal public health measures. The lack of definitive statutory guidance in emergency situations may make that next step less a matter of epidemiology and more a matter of political calculation. Gov. Baker appears to be doing his best to exercise his powers responsibly, but in the absence of clear standards and procedures governing “public health emergencies,” Justice Jackson’s concerns remain.

Peter Martin, Esq., is a partner at Bowditch and Dewey. He concentrates his practice on health care law, representing hospitals, long-term care facilities, physicians and other facilities and providers facing complex regulatory and contractual issues throughout Massachusetts and beyond.

References:

1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Justice Jackson, concurring) cited in Elsea, J., “Definition of National Emergency under the National Emergencies Act,” Congressional Research Service Legal Sidebar (March 1, 2019).

2. Haffajee, R., Parmet W. and Mello, M., “What is a Public Health ‘Emergency’?”, NEJM vol. 371, no. 11, p. 986.

3. See Brennan Center for Justice, “Declared National Emergencies Under the National Emergencies Act” (updated November 10, 2021).