On March 13, 2020, President Donald Trump declared a national state of emergency, invoking the 1988 Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. §§ 5121 et seq., in response to the ongoing threat presented to the American public by the novel coronavirus, COVID-19. The declaration does not, by itself, portend a great disruption in the normal operation of generally applicable U.S. laws and regulations. The emergency powers under the Stafford Act are comparatively narrow, and the Act has been invoked dozens of times annually over the last several decades.
The emergency declaration under the Stafford Act makes available to state and local governments approximately $40 billion in funding from Congress earmarked for disaster relief through the Federal Emergency Management Agency (FEMA).
The emergency declaration also empowers the President to temporarily suspend certain HIPAA confidentiality provisions and sanctions, per 42 U.S.C. § 1320b-5 and authorize the healthcare system’s use of otherwise unapproved drugs, devices, or products to fight the virus and treat patients. 21 U.S.C. § 360bbb-3. Notably, these and similar powers are expected to be employed by the federal government to streamline patient care: allowing out-of-state providers to assist in healthcare service without licensing complications, enabling tele-visits to healthcare providers, and lifting restrictions on the use of hospital space to expand the physical spaces where coronavirus patients may be treated.
A broader emergency declaration—under the National Emergencies Act—would allow the President to suspend the operation of a much greater array of otherwise valid federal laws or regulations. For example, such a declaration would implicate the President’s powers over the use, control, and seizure of private assets (e.g., privately-owned vessels per 46 U.S.C. § 56309 and 57521) and the lifting of duties on import of relief supplies (19 U.S.C. § 1318). It would also allow temporary rollbacks of restrictions on the use of public lands for public health purposes (42 U.S.C. § 217), and limitations on the ability of the government to displace persons due to a federal project (42 USC § 4625(c)(3)(B)).
The declaration of emergency under the Stafford Act has been a relatively common occurrence. The President’s use of his executive emergency powers is certainly a significant development for state and local governments who are on the front-line of the battle to control the spread of COVID-19. It is unlikely, however, that the emergency declaration, will otherwise disrupt the normal operation of laws and regulations to which U.S. commerce is subject.
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