Nearly five decades have passed since Congress’s last comprehensive reform of the maze of federal statutes that govern our country’s response to a national emergency. As the senators who led that effort explained, “American political theory of emergency government was derived and enlarged from John Locke, the English political-philosopher, [who] argued that the threat of national crisis—unforeseen, sudden, and potentially catastrophic—required the creation of broad executive emergency powers to be exercised by the Chief Executive.”
While that assessment is certainly correct, the Englishman’s theory maps imperfectly onto America’s federal system of government, which has not just one chief executive, the president, but also 50 state governors. After the present crisis has abated, the time is ripe for Congress to undertake another sweeping examination of the federal statutes relating to a national emergency.
In particular, Congress needs to reform the statutes to enable a better, truly federal emergency response: It needs to empower governors, in addition to the president, to exercise extraordinary authority.
By one authoritative count, there are approximately 136 federal statutory provisions that authorize various extraordinary actions in a national emergency. These statutes do a decent job — many have argued they do too good of a job — of empowering the president to respond to an emergency. But, shockingly, they do practically nothing to empower a state response.
Indeed, just two statutes permit states to do anything at all. Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, a governor may petition the president to declare a major disaster or emergency, which would then permit the Federal Emergency Management Agency to provide certain forms of assistance to the state. Another statute authorizes governors to petition the president to suspend the requirements of an implementation plan under the Clean Air Act. While important, these authorities still render the states dependent upon the federal government.
States, of course, do not need the federal government’s permission to respond to an emergency, because they may exercise their own police powers. And it would not make sense to include states within many of the federal emergency statutes. Many statutes authorize the president to take certain actions with respect to the military, and others, like the Stafford Act, authorize the expenditure of federal resources. States should not (and constitutionally could not) supplant the president’s role as commander in chief, nor should we put states in charge of federal resources.
However, as demonstrated by our initial inability to test adequately for the coronavirus, federal statutes and regulations can impede a response to an emergency. Thus, several statutes relating to national emergencies simply permit the president to lift such barriers. For example, one statute permits the secretary of Health and Human Services to waive temporarily certain certification and confidentiality requirements for healthcare providers. Another permits the secretary to authorize the use of drugs or medical devices without formal approval. It seems likely that Congress may enact additional statutes along these lines, having learned from recent experience of additional hurdles, such as rules constraining the provision of telehealth services and diagnostic testing.
Congress should consider amending such statutes to permit governors, in addition to the president, to waive federal rules that pose an obstacle to their state’s emergency response. To prevent states from exercising this authority in a manner that might undermine a coordinated national effort, and to prevent abuse, a governor’s waiver could be subject to a presidential override. By favoring state action over federal inaction, this approach could permit a swifter, more nimble emergency response.
It makes little sense to deny states this authority. President Trump has emphasized that states are responsible for a substantial share of the response to the present crisis. As some constitutional experts have recently explained, states have several advantages over the federal government with respect to emergency response, including superior local knowledge and a better ability to correct mistakes quickly. And in an emergency context, time means lives. According to one estimate, if Hubei province in China had declared a lockdown just one day earlier, the number of coronavirus cases in the region would have dropped by approximately 30%.
We should not be fighting a national emergency with one hand tied behind our back. The states are on the frontlines in responding to national emergencies, and it is time that the federal emergency statutes reflected this fact.
Kristin Shapiro (@mrsshap) is a senior fellow at Independent Women’s Forum.