What is a National Emergency?
March 20, 2020
On March 13, 2020, President Donald Trump issued a proclamation declaring a national emergency in connection with the emergence of the novel coronavirus (COVID-19) in the United States. Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak. What is a national emergency?
The United States has faced national emergencies since prior to its inception, with the Continental Congress engaging in the first expressions of emergency authority in connection with the Revolution. After the formation of the United States, presidents have relied on emergency proclamations since George Washington issued a proclamation in 1794 warning the insurgents in the Whiskey Rebellion of 1792 to cease hostilities. Since the presidency of Gerald Ford, emergency proclamations by the president have been based on the National Emergencies Act of 1976, 50 U.S.C. § 1621 (the “NEA”), which was intended to provide for central coordination of the activation of national emergency authority. Under NEA § 1621(a), the president is authorized to declare a national emergency and transmit such declaration to Congress for recording in the Federal Register. The NEA does not identify the specific effect of a declaration, but rather makes the declaration the trigger for application of the provisions of existing laws “conferring powers and authorities to be exercised during a national emergency.” NEA § 1621(b). The statutory law, presidential orders, and federal regulations available for use in the context of an emergency declaration are summarized in the immediately following link. A Guide to Emergency Powers and Their Use The NEA requires that the president identifies in his declaration, or related Executive Orders, exactly which of these sources of emergency power are being made available for use under the declaration of emergency. NEA § 1631.
The NEA limits the duration of a national emergency and allows Congress to terminate the effect of a declaration by the passage of a joint resolution. However, this joint resolution must be signed by the president, which effectively gives the president veto power over a termination resolution. Even though the duration of a declaration of national emergency is limited by the NEA, the declaration may be repeatedly renewed. As of the time of the present declaration, there are already 31 prior declarations, the first dating back to President Jimmy Carter in 1979, that remain in effect as a result of renewal. The Congressional Research Service has prepared an extensive analysis of the national emergency powers, including the circumstances of each declaration of a national emergency under the NEA and which declarations continued in effect in Updated Report No. 98-505. See L. Elaine Halchin (2019). National Emergency Powers (CRS Report No. 98-505). Retrieved from Congressional Research Service website: https://crsreports.congress.gov/product/pdf/RL/98-505
The NEA does not identify what constitutes a national emergency. However, the report of the Congressional Research Service, relying on the work of presidential scholars and historians, identifies four primary aspects of an emergency condition:
“The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration. The second is its potential gravity: An emergency is dangerous and threatening to life and well-being. The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive. Fourth, there is the element of response: By definition, an emergency requires immediate action but is also unanticipated.”
Halchin, National Emergency Powers (CRS Report No. 98-505), page 3-4. https://crsreports.congress.gov/product/pdf/RL/98-505
President Trump's declaration relating to COVID-19 authorizes the Secretary of Health and Human Services to waive or modify certain requirements of Medicare, Medicaid, and State Children's Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the emergency. These waivers will loosen restrictions on telehealth usage and certain requirements for hospitals and healthcare providers so they can better respond to the crisis.
On March 13 2020 President Trump additionally made an “emergency determination” under the Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the “Stafford Act”) by means of a letter directed to the Federal Emergency Management Agency (FEMA) and the secretaries of the Department of Homeland Security, Department of the Treasury, and the Department of Health and Human Services. Stafford Act § 501(b) grants to the president authority to declare a national emergency. Once an emergency is declared, the act allows state governments and tribal authorities to request disaster assistance from the federal government. Typically, the Stafford Act is used to provide aid to states or localities damaged by natural disasters, like hurricanes or floods. However, President Clinton used the Stafford Act to respond to West Nile virus outbreaks in New Jersey and New York in 2000. Letter from President Donald J. Trump on Emergency Determination Under the Stafford Act The current emergency determination letter summarizes the legal basis for its emergency declaration in response to COVID-19 and identifies the federal government as the appropriate institution to respond to the pandemic under its authority to regulate interstate matters and foreign commerce and to conduct foreign relations. In particular, the determination letter cites 42 U.S.C. § 264 which to grants the federal government authority to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. In addition, the letter refers to the federal government's responsibility for securing the nation's borders and controlling the entry of foreign nationals.
The actions directed or authorized by the determination letter are:
FEMA is authorized to provide appropriate assistance pursuant to Stafford Act §§ 502 and 503 for emergency protective measures not authorized under other Federal statutes, and is directed to coordinate and direct other Federal agencies in providing needed assistance, subject to the leading role of the Department of Health and Human Services;
State and local governments are requested to activate their Emergency Operations Centers and to review their emergency preparedness plans, with FEMA providing assistance to the extent authorized by law;
The Department of the Treasury is directed to provide relief from tax deadlines to Americans affected by the COVID-19 emergency; and
The provisions of Stafford Act §401(a) for a “major disaster” are determined to be appropriate in responding to requests by state governors and chief executives of Indian tribal governments for a major disaster declaration based on their conclusion that the circumstances relating to COVID-19 are beyond the capabilities of the tribe or state. If a request for a declaration of a major disaster is granted, the president gains additional authority to respond to the emergency, such as using federal resources to provide relief assistance.