The Case for Streamlining Emergency Declaration Authorities and Adapting Legal Requirements to Ever-Changing Public Health Threats

By Sunshine, Gregory | Emory Law Journal, January 1, 2018 | Go to article overview

The Case for Streamlining Emergency Declaration Authorities and Adapting Legal Requirements to Ever-Changing Public Health Threats


Sunshine, Gregory, Emory Law Journal


INTRODUCTION

Disasters can come from unforeseeable sources and create unforeseeable problems. The nation's response system is built to be flexible and responsive to all threats, including those we cannot predict. As a result, federal, state, and local governments adopted the National Incident Management System (NIMS), a framework developed by the U.S. Department of Homeland Security, for responding to all forms of emergencies, including terrorist attacks,1 natural disasters,2 oil spills,3 and emerging infectious diseases.4 NIMS's defining characteristics-a clear chain of command and flexible organizational structure-allow it to adapt to any situation.5

While NIMS creates a clear structure for emergency response, state and local responders must still operate within their respective jurisdiction's legal system. The law establishes both the powers and limitations for how government officials protect citizens' health and well-being.6 While many laws have been drafted specifically for the benefit of responding to disasters,7 complex and inflexible legal structures might impede efficient and effective responses.8 To minimize this impact, streamlined and flexible legal systems are vital to address the unforeseeable circumstances that disasters create.9 Centralized emergency response authorities and emergency declarations can act more efficiently than separate groups of officials and various types of emergency declarations.10 Further, an adaptable legal system requires the ability to remove legal barriers. A streamlined and adaptable emergency response legal system allows disaster responders to react as quickly and efficiently as possible in our world of ever-changing threats.11

This Article makes the case for streamlining emergency declaration authority and creating an adaptable legal system. Part I describes the utility of emergency declarations, but gives examples of how that utility can be diminished when states divide specific emergency powers across various types of declarations.12 Part II explores gubernatorial emergency powers to suspend or waive laws as an adaptable solution for removing legal barriers to an efficient and effective emergency response.13 These arguments demonstrate that a streamlined and adaptable state legal system for emergency response is one that (1) provides a governor with the authority to issue one type of emergency declaration, (2) does not divide vital authorities across various declaration types, and (3) provides a governor with the unilateral power to remove statutory and regulatory barriers to an effective response.

I. STREAMLINED EMERGENCY DECLARATIONS ARE NECESSARY TO ACTIVATE ALTERNATIVE LEGAL PROCEDURES

Emergency powers are a fundamental tool in legal preparedness.14 However, legal mechanisms for activating these powers through emergency declarations can be complex,15 situation dependent,16 and divided among specific executive officials.17 Leadership turnover can also exacerbate confusion by creating knowledge gaps about which officials can exercise what authorities in which situations.18 While emergency declaration powers provide a foundation for emergency response, a disparate system of state emergency declaration powers can create a gap in legal preparedness.

Emergency declarations provide government responders with vital tools to address the threats posed by disasters. State emergency declaration powers exist thanks to policymakers determining that-to respond to large-scale threats to the health and well-being of citizens-governors need special authorities for the purposes of mitigating the effects of such threats.19 These "all-hazards" declarations-referred to by a variety of names, including "state of emergency,"20 "disaster,"21 or "emergency,"22-trigger powers that can be used to activate state emergency plans,23 activate the state's national guard,24 and authorize the use of broad powers, including the power to commandeer property and supplies for government use. …

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