By Daniel Hemel and Anup Malani / Special to The Washington Post
President Donald Trump promised Friday to “unleash the full power of the federal government” against the novel coronavirus, officially declaring the outbreak a “national emergency,” “two very big words,” as he put it. But although this announcement drew headlines, the reality is that the president’s legal authorities in a pandemic are limited. Trump will continue to capture an outsize share of media coverage, but the most important actions in the fight against the virus probably won’t come from the president; they will come from governors and mayors.
The administration’s bungled responses to Covid-19 — the snaillike rollout of test kits, the botched announcement regarding restrictions on travel from Europe, the president’s own pseudoscientific speculations on virology and more — have amounted to a comedy of errors with potentially tragic consequences. But the pandemic will be, to a large extent, a drama in 51 acts. The states and Washington, D.C., not the federal government, will decide when to shut schools, shops and other gathering places; and when to reopen them. It’s our governors and mayors — not the president — who will command medical personnel and law enforcement officials on the front lines of emergency response.
The diffusion of responsibility across the federal government and the 50 states is often thought to be a flaw in the nation’s disaster response infrastructure. But divided responsibility also leaves us less vulnerable to failures at the national level. Here, what we thought was our Achilles’ heel may be our saving grace.
The president can close the borders and impose various restrictions on interstate travel, but those measures will be of limited utility now that Covid-19 is present in 49 states and the District (as of this writing). The federal Centers for Disease Control and Prevention, the Food and Drug Administration and the National Institutes of Health — which report to the health and human services secretary, who in turn reports to the president — will have important roles to play in the development and distribution of testing, treatment and vaccines. But beyond that, the president’s power in a pandemic is largely the power of the bully pulpit.
To understand the scope and limits of presidential power in a pandemic, it’s helpful to compare the authorities of federal and state executives in the event of a declared emergency.
At the federal level, we now have three declared emergencies related to Covid-19. Health and Human Services Secretary Alex Azar declared a “public health emergency” on Jan. 31, and Trump declared a “national emergency” and Stafford Act emergency on Friday.
A public health emergency allows HHS to unleash the Strategic National Stockpile, which at last count had 12 million N95 respirators and 30 million surgical masks. That’s a tiny fraction of the 1.7 billion to 7.3 billion respirators and 100 million to 400 million surgical masks that CDC experts think we will probably need in a pandemic. A national emergency gives the president broad authority to take action that would ordinarily require congressional approval. For example, it potentially allows the president to redirect the 37,000-member Army Corps of Engineers toward temporary hospital construction efforts, although the Army Corps’ ranks are modest relative to the hundreds of thousands of civil engineers and construction workers employed by state and local governments. A Stafford Act emergency, meanwhile, allows the president to use federal and state resources to supplement state and local emergency response efforts, tapping into money set aside in the federal Disaster Relief Fund. At the end of February, that fund had a balance of $42.6 billion; nothing to sneeze at, but less than 1 percent of the total federal budget.
The combination of a public health emergency and at least one of these other two emergencies allows the HHS secretary to waive certain requirements for providers under Medicare, Medicaid and the Children’s Health Insurance Program. It also allows the HHS secretary to make it easier for health-care professionals to work across state lines, for hospitals to transfer patients, for physicians to obtain Medicare reimbursement for telemedicine and for providers to comply with health privacy protections. Those aren’t inconsequential authorities, but they will have, at most, a marginal effect on the overall progress of Covid-19.
Contrast those authorities with the sweeping powers that governors and District of Columbia Mayor Muriel Bowser wield upon declaring an emergency. For example, Maryland law authorizes the governor to issue any “reasonable” order he “considers necessary to protect life and property ” during an emergency. Maryland Gov. Larry Hogan, who proclaimed a state of emergency on March 5, has since banned all gatherings of more than 250 people, closed all schools through March 27, shut down the Port of Baltimore cruise terminal and ordered nonessential state employees to work remotely. Ohio Gov. Mike DeWine, Illinois Gov. J.B. Pritzker, and Massachusetts Gov. Charlie Baker — whose state emergency statutes give them similarly broad powers — have used their authority not only to close schools and limit large gatherings, but also to clear out bars and restaurants.
D.C. law allows the mayor — who declared a state of emergency on Wednesday — to shut down any facility, order people off the streets, and implement any other measure “designed to protect persons and property” in the District. So far, the District has closed schools until April 1, prohibited gatherings of more than 250 people, banned bar seating and ordered restaurants to space tables at least six feet apart.
Governors in some other states have taken less aggressive actions. For example, New York Gov. Andrew Cuomo,and California Gov. Gavin Newsom, whose states have the first- and third-heaviest Covid-19 caseloads, have left school closure decisions to local officials, notwithstanding their clear authority under state law. Despite advice from public health experts to avoid high-contact settings, Oklahoma Gov. Kevin Stitt, who has been slow to implement statewide measures, tweeted (and then deleted) a photograph of him and his family eating at a crowded restaurant Saturday night; he declared a state of emergency on Sunday evening. In the coming days and weeks, we will probably see extensive variation across states and localities, both in their Covid-19 countermeasures and in the virus’s progress.
Analysis of data from the 1918 influenza pandemic indicates early closures of schools, theaters and houses of worship significantly reduced peak weekly mortality; “flattened the curve,” so to speak. Deciding how long to shutter these facilities, though, will require difficult trade-offs between the public health consequences of Covid-19’s spread and the social and economic costs of widespread shutdowns. For now, social distancing and strict limits on activities are the prudent course. But Americans won’t stay home forever, and it will largely be up to governors and mayors to decide when to relax restrictions.
As former defense secretary Donald Rumsfeld put it, “You go to war with the army you have, not the army you might want.” In the battle against Covid-19, our army has 51 generals. Trump was probably wrong when he claimed, in his recent address to the nation, that Covid-19 “will not have a chance against us.” It could take a terrible toll. But with strong state and local leadership, we may have a fighting chance.
Daniel Hemel is an assistant professor of law at the University of Chicago and a visiting professor at Stanford University law school. Anup Malani is a professor at the University of Chicago Law School and the Pritzker School of Medicine.
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