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Public health emergency powers laws in the US underwent a profound stress test during the COVID-19 pandemic. Designed with bioterrorism in mind, they struggled to meet the challenges of a multiyear pandemic. Public health legal powers in the US are both too limited, in that they don't clearly permit officials to implement measures necessary to combat epidemics, and too broad, in that their accountability mechanisms fall short of public expectations. Recently, some courts and state legislatures have cut deeply into emergency powers, jeopardizing future emergency response. Instead of this curtailment of essential powers, the states and Congress should modernize emergency powers laws to balance powers and individual rights in more productive ways. In this analysis we propose reforms including meaningful legislative checks on executive power, stronger substantive standards for executive orders, mechanisms for public and legislative input, and clearer authority to issue orders affecting groups of people.
abstract
State and federal emergency health powers laws in the US confer expansive authority on executive officials during declared emergencies to permit nimble responses to urgent situations involving scientific uncertainty. Such laws also provide for individual rights being temporarily abridged. This legal design emanated from an extensive process of public health law modernization after the events of September 11, 2001, and the subsequent anthrax attacks.
Emergency powers laws underwent a profound stress test during the COVID-19 pandemic. Designed primarily with bioterrorism in mind, they have proved to be ill suited in some respects to the challenges presented by a multiyear pandemic. Despite public health officials' dedicated and courageous service implementing evidencebased policies under difficult conditions, backlash against burdensome public health orders swelled in many states. The resulting policy schisms have deepened health disparities, underscoring the need to promote health equity going forward. The backlash also spurred court challenges and state legislation that severely curtailed emergency powers.
These developments make clear that emergency powers laws should undergo a "Modernization 2.0," with the post-9/11 changes representing the first iteration of modernization. The laws' powers are both too limited (they might not permit officials to implement some measures that are necessary to fight epidemics) and too broad (with insufficient checks on executive power).Yet many states' reform efforts represent dangerous overcorrections of executives' perceived lack of accountability for their actions. Here...