President Trump recently stated “We are going to put out the fires. We’re not going to close the country,” when a second wave of the COVID-19 pandemic hits the country in the Fall. In actuality, the president does not have the power to close or open the country.
Disaster management is governed by a series of federal regulations, most of which are contained in the Stafford Act of 1988, which was designed to set forth responsibilities during and after a disaster in the United States’ federalist system. The 10th Amendment to the Constitution gives states the power to establish and enforce laws protecting the welfare, safety, and health of the public. The Stafford Act codifies this through a series of rules that pushes decision-making power over a local disaster to the states, which is why we hear about Governors “reopening” their states, but Mayors of large cities continuing “stay at home orders.” The federalist system divides power between large and small governments –cities, counties, states, and the federal government.
A truism in the disaster research arena is that “all disasters are local.” A hurricane, wildfire, flood, or earthquake impacts a local area. A local government, usually a mayor, requests financial (and sometimes tactical) assistance from the county or state. The state then requests financial (and sometimes tactical) assistance from the federal government. These are the “disaster declarations” you sometimes hear about.
For ex., if a wildfire threatens the City of Santa Barbara, the Santa Barbara Mayor meets with emergency response personnel, such as firefighters, law enforcement, and emergency medical providers. Others may be involved if the circumstances require it. If the emergency is too large for the City to handle, the Mayor declares a disaster and seeks county and state assistance. The disaster declaration is mostly about money –who will pay for the cost of the overtime hours, the emergency equipment, transporting medical special needs patients, etc . .
Documenting expenditures has risen to a level of such importance that some emergency managers now bring lawyers and accountants into Emergency Operations Centers during the disaster. When the Governor of the state determines that the disaster will drain more resources than the state and local government have available, the Governor will make a request to the President for (mostly financial) assistance. In a Major Disaster, such as Hurricane Katrina, the Federal government’s main job is to coordinate and distribute supplies, such as food, water, and money. There are few“boots on the ground” FEMA agents because Federal agents based in Washington know little about local conditions or local stakeholders.
The Federal Government does not coordinate disaster or emergency management, or even relief and recovery efforts. The Federal Government uses its superior bargaining power to attempt to procure and distribute items the state governors determine their states need. In a Stafford Act Disaster, the Federal government does not determine what the state needs, how a state uses the items it has procured, or when the state of emergency is over.
The President’s only conceivable power to force an economy to reopen is to threaten to cut off a state’s disaster funding –a potentially unconstitutional proposition.
A pandemic is a different story. Unlike most disasters, a pandemic’s local environment is the entire country and should, therefore, have a coordinated federal game plan, ideally managed by the Federal government. However, the Stafford Act does not provide for that. There should be a legal means to develop and run a coordinated Federal plan for a pandemic that sets forth the legal rights, obligations, and responsibilities of a number of different Federal and state officials in a pandemic. Decisions get made based on the best available science and evidence, utilizing the world’s top scientific research institutes in the U.S.Decision-making cannot simply be usurped by a President without a plan or a legal basis. The 10th Amendment provides that powers not granted to the President are reserved to the States, and the Stafford Act does not provide for Presidential management of a disaster.
Although there is a good argument in favor of concentrating “close” and “reopen” decisions in the hands of the highest executive officer (i.e., the President) because of his ability to see broadly across the country and maximize the benefits of a coordinated scientific and expert decision-making arena, there is nothing about the Constitution or the Stafford Act that gives the President any such power.
Jude Egan
