State Public Health Emergency Powers in Response to COVID-19

The September 11 terrorist attacks and the anthrax exposures in fall 2001 changed perceptions of emergency risks in the United States, igniting an era of intense preparedness and response undergirded by substantial funding, interjurisdictional efforts, and comprehensive, state-based legal reforms. Over ensuing years, states infused “public health emergency” (PHE) declarations and powers to test, screen, separate, treat, survey, and vaccinate individuals and groups into their laws on the basis, in large part, of the foundational Model State Emergency Health Powers Act (MSEHPA) finalized in December 2001.¹ Initial PHE declarations and limited exercises of these powers among select states emerged in response to infectious disease outbreaks including the H1N1, Ebola, and Zika viruses.

None of these threats, however, rivals COVID-19. With 630 million reported infections globally and more than a million confirmed US deaths in 2.9 years,² the pandemic warranted “all-stops” efforts. Every state declared some type of emergency in the first 10 weeks of the pandemic in early 2020.¹ Widespread implementation of social distancing requirements—isolation, quarantine, closures, travel restrictions, stay-at-home orders—unquestionably saved lives but also carried substantial societal costs.³

Public reactions to expansive use of PHE powers were fierce. The pandemic was rapidly politicized. A tsunami of litigation flooded courts nationally.³ Voters confronted governors and public health officials. Presidential administrations changed mid-pandemic. As the epidemiology of COVID-19 became clearer and safe, efficacious vaccines were developed and distributed, applications of state PHE laws and policies oscillated over multiple waves of infections. Uses of these powers were shaped by “denialist” laws and policies (expressly rejecting known and actual public health risks), federal shifts in responses, and judicial restraints based on misperceptions of individual rights and structural limits underlying governmental responses.⁴ We explore these themes here through assessments of core legal foundations for modern state emergency powers, their uses and challenges in response to COVID-19, and postpandemic reform proposals to improve state responses to future emergency threats.

LEGAL FOUNDATIONS OF EMERGENCY HEALTH POWERS

Federal emergency preparedness and response laws are limited to appropriate exercises of constitutionally enumerated powers (e.g., to tax and spend, regulate interstate commerce, or protect national security). So long as federal laws are constitutionally crafted, they are supreme over state and local laws. Conversely, states are reserved broad “police powers” to provide for the health, safety, morals, and general welfare of populations as per the Constitution’s Tenth Amendment. Pursuant to these authorities, states have crafted varied responses to an extensive array of threats (e.g., hurricanes, fires, floods, chemical releases, attacks, epidemics) through legal declarations of emergencies or disasters reflecting an “all-hazards approach.”¹

The 2001 terrorist and bioterrorism attacks led to modernization of a patchwork of inconsistent and incongruous state emergency laws through the development of MSEHPA in fall 2001. Drafters of the act clearly distinguished health crises from other extant emergencies. A public health emergency was defined as “an occurrence or imminent threat of an illness or health condition” (stemming from bioterrorism, emerging infectious diseases, or other causes) posing a substantial risk of significant deaths, disabilities, or future health harms.^1(p376) Emergency responses authorized via gubernatorial declarations of a PHE, as per MSEHPA section 601, broadly included use of all available means to limit infectious disease transmissions and ensure that contagious cases are subject to proper control and treatment.

Unlike most existing state emergency laws, however, MSEHPA drafters also provided a comprehensive menu of provisions to detect and manage PHEs. As shown in Table 1, these provisions included expedited public health powers related to individuals (e.g., testing, vaccination, isolation, quarantine), entities (e.g., inspection, closure, evacuation), and private property (e.g., nuisance abatement). Subject to scholarly debate,⁵ these PHE measures were balanced in the act with express due process and other safeguards designed to protect civil liberties from governmental overreach. By 2006, 38 states had adopted various MSEHPA provisions through state legislation or regulatory reforms. In turn, these laws were selectively used in response to emerging viral diseases (e.g., H1N1 [2009/2010], Ebola [2015], and Zika [2018]) and other noninfectious public health threats (e.g., opioid use disorder, natural disasters, racism).⁶

TABLE 1—

MSEHPA Key Subjects and Provisions

Subject	Key Provisions
Planning for PHEs	Establishes a state-level PHE planning commission Requires a PHE plan detailing provisions for coordination of response resources and services across agencies Sets guidelines to carry out specific actions such as testing and treatment
Detecting and tracking PHEs	Establishes reporting of illnesses and health conditions that may cause a PHE and prescription patterns indicating a potential PHE Requires public health agencies to ascertain potential causes of a PHE Empowers agencies to investigate cases, identify exposed individuals, and implement control measures
Declaring PHEs	Enables a governor to declare a PHE, typically after consultation with public health experts Authorizes emergency powers to use and mobilize state resources and seek aid from the federal government and other states Allows for termination of a PHE, including by declaration of the governor, majority vote of the legislature, or automatically after 30 days (if not renewed)
Managing property	Authorizes public health agencies to close, evacuate, and decontaminate facilities and materials Empowers public health agencies to use private materials and facilities to respond to the PHE, control public roads and areas, and regulate the use and sale of necessities (e.g., food, fuel, health care supplies) Controls the disposal of infectious waste and safe handling of human remains
Protecting individuals	Enables public health agencies to medically examine, test, vaccinate, and treat individuals subject to limitations Authorizes isolation and quarantine of individuals or groups to prevent the spread of contagious diseases through the least restrictive means available Reciprocates licensure for out-of-state health care personnel
Providing information and immunity	Requires public health agencies to share information regarding a PHE through culturally respectful and accessible communications Provides immunity for state and local actors responding to a PHE Insulates health care workers and other private actors or entities from liability for noncriminal acts in response to a PHE

Note. MSEHPA = Model State Emergency Health Powers Act; PHE = public health emergency.

USE OF EMERGENCY HEALTH POWERS DURING COVID-19

Limited exercises of state PHE powers, however, could not approximate the widescale, national implementation of responses to COVID-19. After early signs of a potentially deadly new strain of coronavirus emerged globally in late 2019, index COVID-19 cases were detected in the United States beginning in January 2020.⁷ Real-time public health responses quickly followed. On January 31, Department of Health and Human Services secretary Alex Azar declared a national PHE, followed by President Trump’s emergency declarations on March 13, 2020.¹ By the end of March, emergencies of all types had been declared across all 50 states, a first in US history.⁸ Despite widespread adoption of MSEHPA provisions, only 13 states formally declared PHEs. Four states (Florida, Maryland, New Jersey, and Ohio) declared PHEs in combination with general emergencies.⁸ Most other states relied on the aforementioned “all-hazards” declarations of emergencies (33 states) or disasters (four states) to effectuate their responses.⁸

Multifarious practical, legal, and political reasons help explain the diversity of state-based declarations according to information garnered by the Network for Public Health Law and its national partners assisting public health actors during the COVID-19 pandemic. The sheer enormity of logistics challenges posed by the pandemic (e.g., managing patient surges, ensuring continued hospital operations, addressing supply chain interruptions) led some governors to seek a wider array of emergency powers through general declarations. Use of executive waiver authorities pursuant to emergency or disaster declarations enabled governors to selectively and temporarily set aside legislative or other nonconstitutional requirements inhibiting governmental response efforts (e.g., state-based procurement laws regarding agency purchases of needed supplies).

Broader legal options available under general emergency declarations facilitated executive branch efforts to address economic effects (e.g., temporary closures, job losses, unemployment claims) of the pandemic. Leaders declared emergencies to trigger statewide emergency operations plans, launch incident command systems, invoke intrastate mobilization agreements, or facilitate exchange of resources across state borders through the Emergency Management Assistance Compact. Some governors viewed emergency or disaster declarations as necessary to pursue expense reimbursements through the Federal Emergency Management Agency or receive direct federal assistance through the Department of Health and Human Services and other agencies. From a political perspective, emergency or disaster declarations may have heightened awareness among state populations of the immense risks posed by the pandemic.

Irrespective of the type of declaration, state governors and officials wielded emergency powers to issue numerous orders in the first 90 days of the pandemic clarifying public health responses via statutory or regulatory emergency provisions assimilating MSEHPA authorities (Table 1).⁸ Testing, screening, reporting, and surveillance efforts were activated. Initial cases were assessed through contact tracing. As epidemiologists surmised the stealthy nature of asymptomatic COVID-19 infections, creating distance among US residents became a central public health strategy.³ Mask requirements, shunned initially, were later instituted in many public settings for months on end. Widespread use of quarantine and isolation powers affected tens of thousands of residents. Most people voluntarily complied with measures consistent with model MSEHPA policies, but some recalcitrants faced more forceful interventions or penalties.¹

Across the nation, nonessential businesses, religious institutions, and schools were closed beginning in spring 2020. Health care providers facing patient surges shut off access to visitors. Group assembly limits were implemented, including nightly curfews in select jurisdictions.³ Travel restrictions and limited border closures were instituted. Forty-five states issued stay-at-home orders for weeks beginning in late March 2020 through general emergency powers, including MSEHPA section 601.⁸ Work, school, and social activities were halted or shifted to virtual formats as people awaited safe, effective vaccines. Although residents’ tolerance for extreme social distancing quickly waned as the effects of long-term separations mounted, initial implementation of these measures prevented countless infections and saved lives.⁹

CHANGING DYNAMICS AND LEGAL CHALLENGES

At the onset of the pandemic, President Trump deferred to states’ frontline responses,¹⁰ focusing national efforts instead on vaccine development and production. Lacking federal leadership, state-based COVID-19 response efforts quickly diverged as legal and political objections arose. Through extensive judicial challenges, complainants argued that public health mitigation measures infringed on individual liberties, including freedoms of speech and association, religious liberty, rights to due process or bear arms, and equal protections.³

MSEHPA drafters had expressly stipulated that individual rights should be respected to the extent possible when implementing specific measures (e.g., requiring use of least restrictive means regarding isolation or quarantine).¹ Despite long-standing constitutional recognition of the need to balance individual liberties with communal health needs, claimants asserted that their constitutionally protected interests predominated over public health. Litigation over the scope of PHE powers was spearheaded by multiple US Supreme Court decisions striking down COVID-19 assembly restrictions affecting religious entities (November 2020) and deauthorizing the Centers for Disease Control and Prevention’s national residential eviction moratorium (August 2021).¹

Judicial cases also raised structural arguments centered on separation of powers,¹ preemption, and local “home rule” authorities.¹¹ In May 2020, Wisconsin’s supreme court overturned the COVID-19 PHE order of the state’s health department.¹² The court determined that the department failed to follow procedural rules in promulgating the order as a regulation pursuant to Wisconsin’s statutory definition of “rule.”¹² Rigid judicial interpretations limiting executive PHE powers diminished state and local health agencies’ authorities in other states including Georgia, Kentucky, Michigan, and Ohio.

Federal public health powers were similarly debated. On January 13, 2022, the US Supreme Court renounced the authority of the Occupational Safety and Health Administration to require large businesses to impose vaccine-or-test requirements on employees¹³ while allowing a similar mandate affecting health care workers set by the Centers for Medicare & Medicaid Services. In April 2022, a federal district court struck down the Centers for Disease Control and Prevention’s authority to issue its mass transportation mask order,¹⁴ leading multiple states to drop their requirements.

Politics contributed to temporary implementations or premature rescissions of emergency declarations, stay-at-home orders, and other interventions.¹⁵ Extreme politicization led multiple states to limit or cease emergency authorities, vaccination and mask mandates, and social distancing efforts in furtherance of protecting individual freedoms and promoting economic interests. The public health consequences of these actions were immense. Failure to implement vaccine mandates or passport requirements (e.g., checking vaccination status for entry into specific public settings) inhibited immunization rates. School districts without universal masking protocols experienced elevated numbers of COVID-19 cases.¹⁶ One assessment of stay-at-home orders demonstrated faster declining COVID-19 case rates in 2647 counties implementing such orders in comparison with 368 counties without them over a three-week period in 2020.¹⁷

States’ conservative approaches to public health prevention and response led to excess COVID-19 cases and deaths overall. From June 3 to December 13, 2020, case and death counts in 26 states with Republican governors were up to 1.8 times higher per 100 000 residents than 25 states (and the District of Columbia) with Democratic leaders.¹⁵ Ultimately, thousands died from COVID-19 because their governments refused to employ proven, preventive measures. US life expectancy plunged by more than two years from the start of the pandemic to 2022.¹⁸

State legislative and regulatory responses also had an impact. A bevy of statutes and regulations across at least half of the states explicitly sought to curb public health powers in response to COVID-19, other health emergencies, and even in routine settings. Although the threat of denialist state laws was palpable, legal counterefforts surfaced as well, especially related to mask requirements.

Legislative or gubernatorial efforts to rescind school mask mandates in Arizona and Texas in 2021 were initially dismissed by courts on constitutional or procedural grounds.⁴ When Arizona governor Doug Ducey attempted on August 17, 2021, to deny federal response funds to school districts imposing mask requirements, the US Department of the Treasury rejected his authority to do so.⁴ That same day, federal Department of Education secretary Miguel Cardona announced legal actions to counter mask bans including challenges under the Americans with Disabilities Act.⁴ After the Michigan supreme court limited Governor Gretchen Whitmer’s emergency authorities in October 2020, the state health department pivoted to order face coverings in schools through its existing routine public health powers.⁴

REFORM EFFORTS TO ENHANCE STATE PUBLIC HEALTH POWERS

A resounding legal takeaway from the COVID-19 pandemic is the continued need for clarity and consistency of authorized governmental actions when US residents’ lives are at stake. Future coordinated federal responses may help resolve conflicting exercises of state PHE powers,⁴ but state-level public health interventions remain essential to effective emergency responses in our federalist system. Shortcomings of state responses to COVID-19, legislative and judicial challenges to public health powers, and discordance over levels of governmental authority warrant ongoing assessments and efforts to bolster state PHE response capacities. Emerging disease outbreaks arising from new strains of COVID-19, monkeypox, measles, polio, Marburg virus, and other globally circulating conditions present extant threats substantiating real-time legal reforms.

Even as multiple states sought to limit PHE authorities during the pandemic through denialist laws and policies, other state legislatures introduced laws to reinforce health infrastructure or enhance public health powers¹⁹ through the following strategies:

• 1.Creating advisory bodies to assess and make recommendations on PHE authorities: Alabama’s joint resolution (enacted April 29, 2021) promotes assessments of state COVID-19 responses to generate efficacious policies.²⁰
• 2.Strengthening local public health authority and coordination: Oklahoma Senate Bill 736 (April 27, 2021) enables counties to form health districts sharing resources to improve health outcomes.²¹
• 3.Increasing transparency and accountability: Colorado’s House Bill 1426 (July 14, 2020) requires regular gubernatorial briefings to the legislature in declared emergencies.²²

State leaders and policymakers are aligning across states to remake the US public health infrastructure postpandemic. A national initiative, Act for Public Health, provides legislative bill tracking, information, and advocacy promoting public health authorities. Select states are reconsidering their powers given adverse judicial treatments and advisory bodies’ analyses of COVID-19 responses. A drafting committee of the Uniform Law Commission is producing model language for states on allocation and use of legislative and executive powers in PHEs.²³

These efforts should be undergirded by commitments to infuse health equity into legal reforms, including emerging PHE legal principles related to compulsory social distancing and allocations of critical medical or other resources pursuant to crisis standards of care.²⁴ Complementary federal support for uniform response efforts through funding, interstate commerce authorities, and oversight of essential supplies and health services will help recalibrate interjurisdictional responses.^4,11 During the pandemic, for example, states were allowed to use federal funds via the American Rescue Plan Act to incentivize individual vaccinations through direct cash payments, gift cards, lottery programs, and in-kind transfers.²⁵

Additional efforts to analyze existing laws and identify solutions across federal and state governments are needed in light of ongoing shifts in constitutional interpretations via the US Supreme Court. Key legal reforms ahead include efforts to (1) clarify the scope and triggers of emergency declarations, (2) refine social distancing and other public health powers, (3) limit denialist political influences, (4) corral rampant misinformation swirling around vaccinations and other public health interventions, and (5) sustain funding for PHE preparedness and response. Rebuilding public health infrastructure and improving health system response capabilities may help ensure that lessons learned from the tragic losses of the COVID-19 pandemic contribute to constructive reforms that alleviate future health threats and promote health equity.