Emergency Powers, Real and Imagined: How
President Trump Used and Failed to Use
Presidential Authority in the COVID-19 Crisis
Elizabeth Goitein*
I
NTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
I. T
HE LEGAL FRAMEWORK FOR THE PRESIDENT’S EMERGENCY POWERS. . . . 28
II. COVID-19
AND THE PRESIDENT’S RESPONSE . . . . . . . . . . . . . . . . . . . . . . . 30
A. Immigration Measures Under Emergency and Pseudo-
Emergency Powers ................................. 31
1. Travel Bans ................................... 31
2. Border Closures. . .............................. 35
a. CDC Order ................................ 35
b. DHS Orders ............................... 37
3. Quarantines ................................... 39
B. Domestic Measures Under Emergency and Pseudo-Emergency
Powers .......................................... 42
1. Empty Threats . . . .............................. 42
2. The Underused Powers .......................... 47
a. The Public Health Service Act and Related Laws (the
Federal Food, Drug, and Cosmetic Act and the PREP
Act)...................................... 48
b. The Stafford Act and the Social Security Act ....... 51
c. National Emergency Powers ................... 54
d. Defense Production Act....................... 55
C
ONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
I
NTRODUCTION
President Trump is not shy when it comes to the use of emergency powers. He
had declared seven national emergencies before a real one—the COVID-19
pandemic—actually happened. His declaration of a national emergency to secure
border-wall funding that Congress had denied was widely perceived as an abuse
of power; it came at a time when illegal border crossings were near a 40-year
low, and was accompanied by the casual statement, “I didn’t need to do this, but
I’d rather do it much faster.”
1
His other declarations, a series of orders imposing
* Elizabeth Goitein co-directs the Liberty and National Security Program at the Brennan Center for
Justice at New York University School of Law. © 2020, Elizabeth Goitein.
1. Victor Lipman, Trump Declares National Emergency and Then Adds “I Didn’t Need to Do This,”
F
ORBES (Feb. 15, 2019, 1:19), https://perma.cc/P33U-KMZ2.
27
sanctions on foreign actors, largely flew under the radar—a strong indicator that
no existential crises were afoot.
One might therefore have expected President Trump to deploy emergency
powers aggressively when a true emergency finally came his way. His rhetoric
has certainly been true to form: he has described himself as a wartime president,
and he proclaimed that the powers of the president during an emergency are
“total.” He also has threatened to invoke a dizzying range of powers that he does
not actually have, sometimes in service of contradictory ends. And with respect
to one subset of emergency powers—those relating to immigration—he has
indeed taken full advantage of COVID-19 to deliver on longstanding promises to
dramatically reduce the flow of lawful immigrants into the United States.
When it comes to deploying emergency powers that would assist in disease
mitigation, however, President Trump has been restrained to a fault. His adminis-
tration declared a public health emergency in late January, but it was slow to
exercise the powers this declaration could have unlocked. As the stock markets
began to suffer, the president downplayed the crisis and delayed declaring a
national emergency or a Stafford Act emergency for several weeks. Eventually
he issued both declarations, followed by a series of executive orders purporting to
invoke the Defense Production Act. Once again, however, his administration’s
actual use of these authorities has been incongruously modest.
What explains the difference between the overweening rhetoric, on the one
hand, and the failure to fully exercise applicable emergency powers, on the other?
In some cases, the president’s public statements suggest a tension between his
penchant for power and a desire to avoid responsibility. In others, news reports
point to political calculations or lobbying by corporate interests. In still others,
the culprit appears to be administrative incompetence. Whatever the reasons,
however, one can rule out the explanation that emergency action isn’t justified by
facts on the ground. The emergency powers that provide additional federal
resources in public health crises were designed for precisely the type of circum-
stance we now face.
The fear that leaders will abuse emergency authorities to consolidate power
during real or fictional crises rightly dominates the political and legal literature.
President Trump has validated these concerns with his immigration measures and
claims of total authority during the COVID-19 crisis. But his passivity on the cen-
tral public health issues raises a novel question: can a president also abuse emer-
gency powers by not using them?
I. T
HE LEGAL FRAMEWORK FOR THE PRESIDENT’S EMERGENCY POWERS
It is sometimes said that “necessity knows no law.”
2
The statement might have
some validity as a description of official behavior during crises, but not as a
description of our legal system. Like all of his powers, the president’s powers
2. See Roger Alford, “Necessity Knows No Law,” OPINIO JURIS (May 18, 2009), https://perma.cc/
TWH3-4S6L.
28 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
during an emergency must come from the Constitution or from laws passed by
Congress.
The U.S. Constitution is an outlier among modern constitutions in that it con-
tains no provision for emergency rule.
3
It does include a handful of provisions
that could be characterized as crisis-response powers, but none of these appears
in Article II. Article I, for instance, assigns to Congress the authority to suspend
the writ of habeas corpus “when in Cases of Rebellion or Invasion the public
Safety may require it,”
4
and to “provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions.”
5
Although Article II confers no explicit emergency powers, there are implied
powers accompanying some of its express provisions. Most notably, the
Commander-in-Chief power entails the authority to defend the United States
against sudden attack, even without prior congressional authorization,
6
and to
manage the conduct of war. The Supreme Court has also asserted (somewhat con-
troversially) that the president is the “sole organ of the federal government in the
field of international relations,”
7
although the scope of this exclusive power in the
international-relations field remains unclear.
Broader claims that the president has inherent constitutional powers to do
whatever he or she considers necessary in an emergency have been soundly
rejected by the Supreme Court. The government advanced a version of this theory
to justify President Truman’s seizure of U.S. steel mills during the Korean War.
The Supreme Court invalidated the president’s action, and Justice Jackson, in his
famous concurrence, observed: “[T]he Constitution did not contemplate that the
title Commander in Chief of the Army and Navy will constitute him also
Commander in Chief of the country, its industries and its inhabitants.”
8
While the emergency powers available to the president under the Constitution
are thus quite limited, Congress has been generous in its delegation of emergency
powers to the president. Several laws give the president or other executive branch
officials the power to issue emergency declarations in specified situations, which
in turn unlock resources and authorities as provided in the law. Notable examples
include the Public Health Service Act and the Stafford Act, discussed below.
In addition to these statutes, each of which constitutes a self-contained grant of
emergency authority, there are more than 120 statutory authorities that become
available to the president when he declares a “national emergency.” The proce-
dures for declaring a national emergency are set forth in the National
Emergencies Act, but the law includes no definition of the term, leaving it to the
3. A review of current constitutions reveals that at least 178 countries’ constitutions have provisions
for emergency rule. See C
ONSTITUTE:THE WORLD’S CONSTITUTIONS TO READ,SEARCH, AND COMPARE,
(June 30, 2020), https://perma.cc/VK8R-P3C6.
4. U.S. C
ONST. art. I, § 9, cl. 2.
5. U.S. C
ONST. art. I, § 8, cl. 15.
6. See L
OUIS FISHER,PRESIDENTIAL WAR POWER 8-10 (2d rev. ed. 2004).
7. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
8. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44 (1952) (Jackson, J., concurring)
(emphasis added).
2020] EMERGENCY POWERS,REAL AND IMAGINED 29
president to decide when national emergency exists. The authorities that can be
triggered by such a declaration span almost every conceivable area of gover-
nance, from agriculture to military deployment to domestic transportation.
9
Finally, many laws that are available without an emergency declaration are
properly viewed as emergency powers, because they confer extraordinary author-
ities that are clearly intended for use in extraordinary situations. A prime example
of this type of “pseudo-emergency power” is the Insurrection Act, one portion of
which allows the president to deploy military forces domestically to suppress
insurrections, domestic violence, and any “unlawful combination” or “conspir-
acy” that “opposes or obstructs” the execution of the law.
10
Similarly, multiple
statutes allow the president to take certain actions—or set aside otherwise appli-
cable limits on presidential action—when necessary for “national security.”
11
II. COVID-19 AND THE PRESIDENT’ S RESPONSE
From the beginning, the president’s response to COVID-19 has been predomi-
nantly focused on keeping the virus out of the country—an approach he has con-
tinued to follow long after the virus was widespread within U.S. borders. In
connection with this strategy, he has barred certain foreign nationals from enter-
ing the country; closed the borders with Mexico and Canada; and made far more
extensive use of the federal quarantine power than any previous president. Most
recently, he has moved to an even broader ban on immigration, ostensibly for the
purpose of mitigating the damage that the crisis has inflicted on the economy.
There is ample evidence that at least some of these measures were driven by
xenophobia and the prospect of political gain, rather than considerations of how
best to address emergency conditions. In that sense, they should be viewed as an
abuse of emergency powers. On the other hand, the laws the president relied on
give him enormous discretion and provide little recourse for anyone adversely
affected.
Outside the realm of immigration, the most salient feature of the president’s
use of emergency powers has been the discrepancy between word and deed. The
president threatens on a regular basis to take actions that Congress has not author-
ized and that go far beyond any inherent authority he has. At the same time, he
hesitated for weeks before declaring Stafford Act and national emergencies and
invoking the Defense Production Act. And he has yet to wield the full powers
those laws would afford him to increase the availability of scarce public health
resources.
9. See BRENNAN CTR. FOR JUSTICE,AGUIDE TO EMERGENCY POWERS AND THEIR USE 3 (rev. ed.
2019), https://perma.cc/9EMU-LB58.
10. 10 U.S.C. § 253 (2018).
11. Section 232 of the Trade Expansion Act of 1962, for instance, allows the president to impose
restrictions on certain imports when the Department of Commerce determines that the product “is being
imported into the United States in such quantities or under such circumstances as to threaten to impair
the national security.” 19 U.S.C. § 1862 (2018).
30 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
A. Immigration Measures Under Emergency and Pseudo-Emergency Powers
1. Travel Bans
On January 31, 2020—the same day that Secretary of Health and Human
Services (HHS) Alex Azar declared a public health emergency—President
Trump issued a proclamation restricting travel into the United States. The procla-
mation barred the entry of aliens who had been present in China (excluding Hong
Kong and Macau) within the 14-day period before seeking entry. Many catego-
ries of aliens were excluded from the ban, including lawful permanent residents
(LPRs) of the United States; spouses and certain family members of U.S. citizens
or LPRs; aliens traveling at the invitation of the U.S. government for a purpose
related to containment or mitigation of the virus; United Nations personnel, for-
eign government officials, and their immediate families; and crewmembers on
vessels or aircraft traveling to the United States. Aliens also may enter if the
Director of the Centers for Disease Control and Prevention (CDC) determines
that they pose a low risk of carrying the virus, or if officials determine that their
entry would further “important law enforcement objectives” or would serve “the
national interest.”
12
A month later, on February 29, President Trump issued a second travel ban,
this one affecting aliens who had been present in Iran during the 14-day period
before seeking entry to the United States.
13
Another proclamation followed on
March 11, encompassing the Schengen Area, a group consisting of just over half
of the countries in Europe.
14
This proclamation sparked sharp controversy, as
the Schengen Area excludes some of t he European nations hit hardest by
COVID-19—most notably, the United Kingdom, whose prime minister,
Boris Johnson, is closely allied with President Trump. After three days of
intense political blowback, the president issued another proclamation extend-
ing the travel ban (and its exceptions) to the United Kingdom and Ireland.
15
On April 22, President Trump implemented what he described as a “temporary
suspension of immigration into the United States.”
16
That description was a sig-
nificant exaggeration; nonetheless, his proclamation dramatically cut back on
legal immigration. For a period of 60 days, which was subsequently extended to
the end of 2020, the proclamation prohibited the entry into the United States of
foreign nationals seeking permanent legal residence. The ban does not apply to
existing green card holders; health care workers and their spouses and minor chil-
dren; certain visa types, including visas for foreign nationals who invest at least
$900,000 in a business that will hire ten or more American workers; spouses and
unmarried minor children of U.S. citizens (but not parents, siblings, or grown
12. Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31, 2020).
13. See Proclamation No. 9992, 85 Fed. Reg. 12,855 (Feb. 29, 2020).
14. See Proclamation No. 9993, 85 Fed. Reg. 15,045 (Mar. 11, 2020).
15. See Proclamation No. 9996, 85 Fed. Reg. 15,341 (Mar. 14, 2020).
16. Nick Miroff et al., Trump to Suspend Immigration to U.S. for 60 Days, Citing Coronavirus Crisis
and Jobs Shortage, but Will Allow Some Workers,W
ASH.POST (Apr. 21, 2020, 5:01 PM), https://perma.
cc/74SR-WTFA.
2020] EMERGENCY POWERS,REAL AND IMAGINED 31
children); and any alien whose entry would be in the national interest, as deter-
mined by the Secretary of State or Homeland Security.
17
Advocates of strict immigration restrictions criticized the president for not
going far enough.
18
On June 22, President Trump issued another order barring for-
eign nationals from entering the United States on certain temporary worker visas
through the end of 2020.
19
Once again, the order contains many exceptions—for
instance, it does not apply to workers in the agricultural, health-care, and food-sup-
ply sectors.
All of these proclamations cite Section 212(f) of the Immigration and
Nationality Act (INA) as the legal authority for the president’s actions. That pro-
vision, in place since the INA’s enactment in 1952, states as follows:
Whenever the Presid ent finds that the entry of any aliens or of any class of ali-
ens into the United States would be detrimental to the interests of the United
States, he may by proclamation and for such period as he shall deem necessary,
suspend the entry of all aliens or any class of aliens as immigrants or nonimmi-
grants, or impose on the entry of aliens any restrictions he may deem to be
appropriate.
20
This law can be viewed as a pseudo-emergency power. The president need not
declare an emergency to invoke it. However, it creates an obvious exception to
“business as usual,” given that the entry of aliens into the United States is other-
wise closely regulated by the statute. Moreover, although the provision gives the
president discretion to determine whether an alien’s entry would be “detrimental
to the interests of the United States,” the standard itself suggests something much
more than a minor concern. It should take a highly unusual set of circumstances
for the entry of an alien or class of aliens to harm the interests of the nation as a
whole. And that harm should presumably be an immediate and urgent one, as
Congress would otherwise be able to address it through a change in the law itself.
Consistent with this interpretation, past presidents generally have invoked
Section 212(f) to create relatively narrow exclusions. The vast majority of these
exclusions have been directed at the targets of sanctions under the International
Emergency Economic Powers Act (IEEPA),
21
such as foreign officials suspected
of human rights violations or corruption. These targeted people or entities were
individually determined to have contributed to an “unusual and extraordinary
threat” to national security, the economy, or foreign policy. Outside of the IEEPA
context, the broadest use of 212(f) before the COVID-19 outbreak was to suspend
17. See Proclamation No. 10,014, 85 Fed. Reg. 23,441 (Apr. 22, 2020).
18. See Brett Samuels, Hard-Line Immigration Groups Blast Trump Order for Not Going Further,
T
HE HILL (Apr. 23, 2020, 4:30 PM), https://perma.cc/9K7L-HFU8.
19. See Proclamation No. 10,052, 85 Fed. Reg. 38,263 (June 22, 2020).
20. 8 U.S.C. § 1182(f) (2018).
21. 50 U.S.C. §§ 1701-08 (2018).
32 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
the entry of undocumented aliens from “the high seas,” and to direct the interdic-
tion of certain vessels carrying such aliens.
22
President Trump’s use of Section 212(f) is different in kind. His orders are not
limited to people who have been individually determined to pose a threat to the
United States, nor are they limited to undocumented immigrants. They do not cre-
ate exceptions to the statutory framework Congress established for lawful immi-
gration. Instead, they override that framework and fundamentally reshape its
contours. Through Section 212(f), the president has transferred from Congress
to himself the constitutional authority to “establish a uniform Rule of
Naturalization”
23
and to control the flow of immigration into the United States.
Moreover, there is good reason to conclude that President Trump’s orders were
driven by prejudice and politics, rather than a good faith assessment of the United
States’ interests. For a full month, as COVID-19 spread across the world, the
president imposed a travel ban only on China, our main economic rival and a fre-
quent target of the president’s wrath. He then extended it to another political
enemy—Iran—even though it had fewer reported cases than hot spots like Italy.
24
His next order, two weeks later, swept in some countries in Europe that had fewer
than a dozen reported cases, while exempting close European allies (most notably
the United Kingdom) where the virus was more prevalent by orders of magni-
tude.
25
All of these bans remain in place today—and the president persists in re-
ferring to COVID-19 as “the foreign virus,” “the Chinese virus,” and, most
offensively, “Kung Flu”
26
—despite statistics showing that the virus is now under
much better control in those countries than inside the United States.
27
The proclamations issued on April 22 and June 22 are even less defensible.
The stated goal of these orders is to stem foreign competition for jobs at a time
when U.S. unemployment has reached its highest level since the Great
Depression. Yet the first order applies, on its face, to minor children and the
elderly—groups that are unlikely to compete for work—and spouses who might
or might not seek jobs in the United States. The second order targets workers in
22. KATE M. MANUEL,CONG.RESEARCH SERV. R44743, EXECUTIVE AUTHORITY TO EXCLUDE
ALIENS:IN BRIEF 6-10 (Jan. 23, 2017), https://perma.cc/TDX3-3Z25.
23. U.S. C
ONST. art. I, § 8, cl. 4.
24. Compare Proclamation No. 9992, supra note 13 (noting that Iran had 388 cases of COVID-19 as
of Feb. 28, 2020), with Calla Wahlquist et al., Italy COVID-19 Death Toll Rises to 21 as UK Confirms
20th Case—As It Happened,G
UARDIAN (Feb. 28, 2020), https://perma.cc/MV32-5JTB (reporting that
Italy had 820 cases as of the same date).
25. Latvia, for instance, had 10 cases on March 11, see COVID-19 Coronavirus Pandemic: Latvia,
W
ORLDOMETER, (Jul. 20, 2020, 23:35 GMT), https://perma.cc/D6SW-XBN5, and Liechtenstein had
three, see COVID-19 Coronavirus Pandemic: Liechtenstein,W
ORLDOMETER, (Jul. 20, 2020, 23:37),
https://perma.cc/G3JF-KUTN; the United Kingdom had 460. See COVID-19 Coronavirus Pandemic:
United Kingdom,W
ORLDOMETER, (Jul. 20, 2020, 23:37 GMT), https://perma.cc/3K96-HPRQ.
26. John Haltiwanger, Trump Is Increasingly Relying on White-Supremacist Ploys to Fire Up His
Base as He Panics over His Reelection Chances,B
US.INSIDER (June 23, 2020, 5:51 PM), https://perma.
cc/MA3L-698V.
27. See Meghan Roos, These Graphs Show How Coronavirus Cases in the U.S. Compare to Other
Countries,N
EWSWEEK (June 25, 2020, 1:59 PM), https://perma.cc/6EPL-4SWM.
2020] EMERGENCY POWERS,REAL AND IMAGINED 33
sectors, such as computer programming and construction, that have experienced
relatively low rates of unemployment.
28
A leaked phone call between Trump sen-
ior policy advisor Steve Miller and a group of conservative organizations con-
firmed that the measures are not intended as emergency stop-gap measures, but
instead are part of a longer-term strategy to reduce immigration.
29
That cannot be what Congress had in mind when it passed Section 212(f).
Unfortunately, however, Congress chose extremely broad language with which
to delegate authority to the president. This makes it difficult to prevail on any
legal challenge to presidential action under that provision.
Indeed, the COVID-19-related travel bans are not the first time President
Trump has misused Section 212(f). Early in his administration, he invoked this
provision to clamp down on legal immigration from several majority-Muslim
countries. Like the current travel bans, these early orders i nvolved no individu-
alized threat determination, but simply carved out entire countries, f undamen-
tally reworking—rather than creating a limited exception to—Congress’s
immigration scheme. And t here was overwhelming evidence that these meas-
ures wer e based on Islamophobia, rather than (as the president claimed)
national security.
30
The Supreme Court nonetheless upheld the use of Section 212(f) in this con-
text. Even though the plaintiffs alleged a violation of the First Amendment—
which ordinarily would trigger strict s crutiny—the majority observed that,
“[b]y its ter ms, [Section 212(f)] exudes deference to the President in every
clause,” and determined that the Court should apply at most a “rational basis”
standard of review.
31
Essentially, the existence of a facially plausible reason
for the government’s action would ca rry t he day, regardless of strong evidence
that this reason was a post-hoc pretext. While the current travel bans are distin-
guishable in some respects, the majority’s deferential approach and its effec-
tive disregard of evidence of bad faith in Trump v. Hawaii certainly do not
bode well for legal challenges to the president’s more recent invocations of
Section 212(f).
28. See Sara Savat, WashU Expert: H-1B Visa Restrictions Unlikely to Impact Unemployment Rates,
T
HE SOURCE (June 24, 2020), https://perma.cc/M6BJ-HXYB; Editorial, Trump’s Immigration Gift to
China,W
ALL ST. J., (June 23, 2020, 7:26 PM), https://perma.cc/5XPT-PF7R; Jon Healey, Opinion,
Trump Says His Visa Crackdown Will Help Put Americans Back to Work. It Won’t, L.A. T
IMES (June 22,
2020, 1:45 PM), https://perma.cc/VPZ7-ZPVZ. Some experts have suggested that the restrictions will
actually harm the nation’s economic recovery, because they will deprive U.S. businesses of labor that
cannot be found inside the United States. See, e.g., Margaret Peters, Trump Wants to Limit Immigration
to Protect Jobs. Will That Work?,W
ASH.POST (June 29, 2020, 6:00 AM), https://perma.cc/P9LK-49DH.
29. See Nick Miroff & Josh Dawsey, Stephen Miller Has Long-Term Vision for Trump’s
“Temporary” Immigration Order, According to Private Call with Supporters,W
ASH.POST (Apr. 24,
2020, 2:23 PM), https://perma.cc/VZS9-CVBU.
30. See generally Brief of Amicus Curiae The Roderick & Solange MacArthur Justice Center in
Support of Respondents, Trump v. Hawaii, 138 S. Ct. 2392 (2018) (No. 17-965).
31. Trump v. Hawaii, 138 S. Ct. 2392, 2400-02 (2018).
34 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
2. Border Closures
a. CDC Order
On March 24, 2020, the Director of the CDC issued an order “suspending the
introduction of certain persons from countries where a communicable disease
exists.”
32
In the order, the CDC Director concluded:
There is a serious danger of the introduction of COVID-19 into the land [ports
of entry] and Border Patrol stations at or near the United States borders with
Canada and Mexico, and into the interior of the country as a whole, because
COVID-19 exists in Canada, Mexico, and the other countries of origin of per-
sons who migrate to the United States across the United States land borders
with Canada and Mexico.
33
This danger is exacerbated, the Director found, by the fact that “many of those
persons (typically aliens who lack valid travel documents and are therefore inad-
missible)” are then held by Customs and Border Protection “in close proximity to
one another, for hours or days, as they undergo immigration processing.”
34
Accordingly, aliens arriving at ports of entry or border patrol stations along the
Canadian or Mexican border without proper travel documents would be summar-
ily turned away.
The order contains exceptions for legal permanent residents; members of the
armed forces and their immediate families; people from countries participating in
the visa waiver program; and “persons whom customs officers of DHS determine,
with approval from a supervisor, should be excepted based on the totality of the
circumstances, including consideration of significant law enforcement, officer and
public safety, humanitarian, and public health interests.”
35
It contains no express
exception, however, for cases in which the United States has a legal obligation to
admit the person, such as instances in which the alien seeks asylum and has a cred-
ible fear of persecution if returned to his or her country of origin. Border Patrol
guidance, leaked to reporters, confirmed that customs officials have been
instructed to process only those aliens who volunteer a claim that they would be
tortured
36
—in practice, a small subset of those eligible for asylum protection.
The primary legal authority underlying the CDC order is Section 362 of the
Public Health Service Act (PHSA). Like Section 212(f) of the INA, this provision
is best understood as a “pseudo-emergency power,” insofar as it grants extraordi-
nary discretion to the executive branch to address an immediate threat to the
country. Under Section 362,
32. Centers for Disease Control Order Suspending Introduction of Persons from a Country Where a
Communicable Disease Exists, 85 Fed. Reg 16,567 (Mar. 24, 2020).
33. Id.
34. Id.
35. Id.
36. See Dara Lind, Leaked Border Patrol Memo Tells Agents to Send Migrants Back Immediately—
Ignoring Asylum Law,P
ROPUBLICA (Apr. 2, 2020, 6:30 PM), https://perma.cc/4EYW-KBGR.
2020] EMERGENCY POWERS,REAL AND IMAGINED 35
Whenever the Surgeon General determines that by reason of the existence of
any communicable disease in a foreign country there is serious danger of the
introduction of such disease into the United States, and that this danger is so
increased by the introduction of persons or property from such country that a
suspension of the right to introduce such persons and property is required in
the interest of the public health, the Surgeon General, in accordance with regu-
lations approved by the President, shall have the power to prohibit, in whole or
in part, the introduction of persons and property from such countries or places
as he shall designate in order to avert such danger, and for such period of time
as he may deem necessary for such purpose.
37
The powers conferred by this provision have been delegated to HHS and assigned
to the CDC Director.
38
The language of Section 362 suggests that it is meant to be used when a disease
is present in another country, but not (or at least not significantly) in the United
States; restriction on entry would thus “avert” the potential “introduction of such
disease.” That was manifestly not the case on March 20, the effective date of the
CDC order. At the time, there were 164 reported cases of COVID-19 in Mexico
and 1,087 in Canada, compared with 19,551 cases in the United States.
39
Public
health officials have urged the administration to reverse the order, arguing that
asylum seekers can be admitted safely into the country.
40
It appears that the president is using Section 362 opportunistically to advance a
policy goal he has pursued since long before the COVID-19 pandemic: the dis-
mantling of asylum protections. In November 2018, the president issued a procla-
mation,
41
and the Departments of Justice and Homeland Security issued a joint
interim final rule,
42
intended to prohibit those who enter the country unlawfully
from seeking asylum. A U.S. district court enjoined the policy as a violation of
the INA,
43
and the U.S. Court of Appeals for the Ninth Circuit upheld the injunc-
tion.
44
In January 2019, the administration unveiled the so-called “Migrant
Protection Protocols,”
45
under which asylum-seekers who arrive at the southern
border are required to return to Mexico pending a determination of their asylum
37. 42 U.S.C. § 264 (2018).
38. See 31 Fed. Reg. 8855, 80 Stat. 1610 (June 25, 1966) (delegating functions of the Surgeon
General to the Secretary of the Department of Health, Education, and Welfare); 20 U.S.C. § 3508(b)
(2018) (designating HHS as the successor to the Department of Health, Education, and Welfare).
39. Statistics for reported cases of COVID-19 in each country over time are available at
W
ORLDOMETER:CORONAVIRUS, https://perma.cc/PQ9S-8P6L.
40. See Public Health Experts Urge U.S. Officials to Withdraw Order Enabling Mass Expulsion of
Asylum Seekers,R
ELIEFWEB (May 19, 2020), https://perma.cc/85HG-4WR4.
41. See Proclamation No. 9822, 83 Fed. Reg. 57,661 (Nov. 9, 2018).
42. See Interim Final Rule: Aliens Subject to a Bar on Entry Under Certain Presidential
Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018) (codified at
8 C.F.R. §§ 208, 1003 & 1208).
43. See East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018).
44. See East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020).
45. Migrant Protection Protocols,D
EP’TOFHOMELAND SECURITY (Jan. 24, 2019), https://perma.cc/
MX28-SM76.
36 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
claims. Once again, a U.S. district court preliminarily enjoined the policy,
46
and
again the Ninth Circuit upheld the injunction
47
(although the Supreme Court sub-
sequently issued a stay, allowing the policy to remain in place while the challenge
wends its way through the courts).
48
Despite these indications that the administration is misusing Section 362 to
achieve a goal unrelated to public health, establishing a violation of that provision
would be difficult. The statute gives the CDC Director complete discretion to
determine when a danger of introduction into the U.S. exists. Moreover, although
the word “introduction” suggests that the provision would not apply when the dis-
ease is already widespread within the United States, regulations issued under
Section 362 interpret it to permit the suspension of entry from other countries
“even if the communicable disease has already been introduced, transmitted, or is
spreading within the United States,”
49
and that interpretation would be entitled to
deference.
That said, there is a strong argument that the CDC order has been applied in a
manner that violates immigration law. Under the Refugee Act of 1980, which in
turn implements obligations under international law, aliens who arrive at the U.S.
border without proper documentation are entitled to make a claim of asylum and
must be afforded the opportunity to establish a credible fear of prosecution.
50
The
requirement to provide a “credible fear” interview applies to any alien who
declares an intent to apply for asylum—not just those who claim they will be tor-
tured. These immigration provisions are more specific than, and were enacted af-
ter, Section 362 of the PHSA, so they should prevail to the extent there is any
conflict between the two.
b. DHS Orders
On March 24, the Secretary of Homeland Security published notices in the
Federal Register of a partial closure of the borders with Canada and Mexico,
effective March 20.
51
While the CDC Director’s order, discussed above, re-
stricted the introduction of aliens, the actions of the DHS Secretary restricted
cross-border travel regardless of immigration status. It accomplished this end by
suspending normal operations at ports of entry and processing “only those travel-
ers engaged in ‘essential travel,’” defined to include:
46. See Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019).
47. See Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020).
48. See Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (2020).
49. 42 C.F.R. § 71.40(b)(1) (2020).
50. See Refugee Act of 1980, 8 U.S.C. §§ 1158(a)(1), 1225(b)(1)(A)(ii) (2018).
51. See Customs and Border Protection Notification of Temporary Travel Restrictions Applicable to
Land Ports of Entry and Ferries Service Between the United States and Canada, 85 Fed. Reg. 16,548
(Mar. 20, 2020); Customs and Border Protection Notification of Temporary Travel Restrictions
Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico, 85 Fed.
Reg. 16,547 (Mar. 20, 2020).
2020] EMERGENCY POWERS,REAL AND IMAGINED 37
U.S. citizens and lawful permanent residents returning to the United
States;
Individuals traveling for medical purposes;
Individuals traveling to attend educational institutions;
Individuals traveling to work in the United States (e.g., individuals
working in agriculture who must travel between the U.S. and
Canada for their jobs);
Individuals traveling for emergency response and public health
purposes;
Individuals engaged in lawful cross-border trade (e.g., truck drivers
moving cargo between the United States and Canada);
Individuals engaged in official government or diplomatic travel;
Members of the U.S. Armed Forces and their spouses and children;
and
Other individuals engaged in military-related travel or operations.
The restrictions were made effective for one month, but have since been
renewed and will likely stay in place for the foreseeable future.
52
The DHS notices cite two statutory provisions as legal authority for the restric-
tions. The first of these, 19 U.S.C. §1318(b)(1)(C), is expressly an emergency
power; it allows the Secretary of Homeland Security (exercising authority trans-
ferred from the Secretary of the Treasury), “when necessary to respond to a
national emergency . . . or to a specific threat to human life or national interests,”
to temporarily close, relocate, or modify the services provided by any customs
office or port of entry, or (under subparagraph (C)) “[t]ake any other action that
may be necessary to respond directly to the national emergency or specific
threat.” The second provision, 19 U.S.C. §1318(b)(2), is an emergency power in
all but name, authorizing the Commissioner of U.S. Customs and Border
Protection “when necessary to respond to a specific threat to human life or
nationalinterests...toclosetemporarilyanyCustomsofficeorportofentryor
take any other lesser action that may be necessary to respond to the specific
threat.”
Once again, the administration’s use of these authorities is unprecedented. Past
invocations have been extremely short-term and, for the most part, limited. The
only full closure of the border occurred in the aftermath of President Kennedy’s
assassination, and it lasted for less than a day. President Ronald Reagan closed nine
ports of entry for a few days in 1985 after a Drug Enforcement Administration
52. See Julia Thompson, US Extends Border Closure Agreements with Canada, Mexico into July,
USA T
ODAY (June 16, 2020, 1:31 PM), https://perma.cc/K8ER-7MJU.
38 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
agent was abducted in Mexico. Other instances have generally involved heightened
security procedures or more extensive inspections at certain ports of entry.
53
The
Trump administration’s actions, by contrast, go beyond a brief travel restriction
and effectively suspend not only cross-border travel, but also immigration itself at
the borders.
The administration’s use of the port-closure authorities raises legal concerns
for the same reason as its use of INA Section 212(f). In both cases, the authority
grants the president the discretion to make exceptions to a statutory status quo. In
both cases, however, the “exceptions” the president has put in place are so broad
and so temporally indefinite that they effectively rewrite the underlying statutory
framework, creating an entirely new immigration system that bears little resem-
blance to the one Congress carefully crafted in the INA.
54
Nonetheless, the language of the emergency powers in question makes it diffi-
cult to discern the legal limits. Although actions taken under Sections 1318 (b)(1)
(C) and (b)(2) must be “temporary,” there is no indication of how long they may
last. The ability to close “any Customs office or port of entry” could be read to
authorize the closure of all Customs offices or ports of entry. And the catch-all
language, allowing the Secretary of Homeland Security to “[t]ake any other
action that may be necessary to respond directly to the national emergency or spe-
cific threat,” leaves courts with little textual basis to anchor a conclusion that the
Secretary has overreached.
3. Quarantines
The president’s January 31 proclamation barring people who had been in
China within the preceding 14 days from entering the United States did not apply
to U.S. citizens, and it exempted several categories of foreign nationals. Those
people, however, were not free to enter the country and go about their business.
Instead, the proclamation directed the Secretary of Homeland Security to “take
all necessary and appropriate steps to regulate the travel of persons and aircraft to
the United States to facilitate the orderly medical screening and, where appropri-
ate, quarantine of persons who enter the United States and who may have been
exposed to the virus.”
55
Pursuant to this directive, DHS routed all flights from China through a select
list of U.S. airports that were set up and staffed to screen arriving passengers.
Passengers who showed symptoms of COVID-19 were to be detained and sub-
jected to a mandatory 14-day quarantine imposed by the CDC. Passengers who
had spent time in Hubei Province during the preceding two weeks were also to be
placed under quarantine orders, regardless of whether they showed any
53. See generally BEN HARRINGTON,CONG.RESEARCH SERVICE LSB10283, CAN THE PRESIDENT
CLOSE THE BORDER?RELEVANT LAWS AND CONSIDERATIONS (2019), https://perma.cc/NH2P-T2FH.
54. In addition, to the extent that the administration was relying on the declaration of a national
emergency to trigger 19 U.S.C. § 1318 (b)(1)(C), the president violated the National Emergencies Act
by failing to issue an executive order invoking that authority. See 50 U.S.C. § 1631 (2018).
55. Proclamation No. 9984, supra note 12.
2020] EMERGENCY POWERS,REAL AND IMAGINED 39
symptoms.
56
All other passengers were to be placed in “monitored self-quaran-
tine”: they would be required to stay at home for 14 days, during which time they
would be monitored by local health departments.
57
The quarantines went into effect immediately. On January 31, 195 Americans
who had been evacuated from Wuhan were taken to the March Air Reserve Base
in Riverside County, California, and held there for 14 days. By February 10, more
than 800 Americans were being held in quarantine at six military bases across the
country.
58
As the prohibition on entry was expanded to include other countries, so
too were the re-routing of aircraft to a list of designated airports; the screening of
passengers to determine if any were subject to mandatory quarantine; and the
requirement that non-symptomatic passengers self-quarantine at home.
Mandatory quarantines also have been imposed on Americans traveling on
cruise ships where some passengers were known to be infected. On February 16,
328 Americans were evacuated from the Diamond Princess, which had been held
off the coast of Japan for nearly two weeks; all were kept in quarantine for 14
days at either Travis Air Force Base in California or Joint Base San Antonio in
Texas.
59
More controversially, 3,533 passengers on the Grand Princess were sub-
ject to a de facto quarantine when the Trump administration refused to allow the
ship to dock in its home port of San Francisco for several days.
60
Public health
officials warned that forcing the passengers to stay aboard the ship in close quar-
ters with one another, rather than bringing them ashore to be quarantined in
appropriate facilities, would increase rather than limit transmission of the disease.
President Trump nonetheless resisted their advice for several days, on the ground
that bringing sick passengers on shore would cause a bump in the number of
known U.S. cases. “I like the numbers being where they are,” he said. “I don’t
need to have the numbers double because of one ship that wasn’t our fault.”
61
The administration’s extensive use of quarantines was a radical departure from
past practice. Indeed, before the detention of 195 passengers on January 31, the
PHSA’s quarantine authority had been used only once, when a woman who trav-
eled to the U.S. from Sweden in 1963 was detained on suspicion that she could be
carrying smallpox.
62
56. See DHS Issues Supplemental Instructions for Inbound Flights with Individuals Who Have Been
in China,D
EP’TOFHOMELAND SECURITY (Feb. 2, 2020), https://perma.cc/JRN6-36ZF.
57. Alex Azar, Sec’y, Dep’t of Health & Human Servs., et al., Press Briefing by Members of the
President’s Coronavirus Task Force (Jan. 31, 2020, 3:42 PM), https://perma.cc/N6C9-MET3.
58. See Katy Steinmetz, The U.S. Government Is Quarantining More Than 800 Americans. Here’s
Why That Very Rarely Happens,T
IME (Feb. 10, 2020, 12:51 PM), https://perma.cc/VN4Z-R3CG.
59. See Rebecca Falconer, Diamond Princess Cruise Ship Evacuees Go into U.S. Quarantine,A
XIOS
(Feb. 18, 2020), https://perma.cc/44MJ-P6Y7.
60. Bill Chappell & Vanessa Romo, Coronavirus: Grand Princess Cruise Ship Docks Off California
Coast, NPR (Mar. 9, 2020, 9:54 AM), https://perma.cc/YP2R-LA9Y.
61. Philip Bump, Which Is Trump More Worried About: Coronavirus Numbers or Coronavirus
Patients?,W
ASH.POST (Mar. 7, 2020), https://perma.cc/8VUP-BSE3.
62. See Amy Taxin, Public Health Experts Urge U.S. Officials to Withdraw Order Enabling Mass
Expulsion of Asylum Seeker, ABC N
EWS (Jan. 31, 2020, 10:53 PM), https://perma.cc/K2U7-PHV8. It is
often reported that Andrew Speaker, who had a rare form of drug-resistant tuberculosis, was subjected to
40 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
There are several possible explanations for the limited use of federal quaran-
tine authority in the past. For one thing, public health is primarily an area of state
and local, not federal, responsibility, and every state has the ability to order quar-
antines under its own laws. But there are also serious questions about the effec-
tiveness of quarantines in managing highly contagious diseases. Most experts
believe that quarantines can at best delay the spread of such illnesses.
63
Of course, delay tactics could in theory have bought the administration time to
prepare for the pandemic’s inevitable arrival. Instead, however, the president
appeared to believe that travel bans and quarantines would succeed at keeping the
virus out of the country.
64
Not until COVID-19 had a significant foothold in the
United States did the administration announce that it would shift from a “contain-
ment” strategy—trying to limit the disease’s spread—to a “mitigation” one—try-
ing to ensure sufficient availability of resources for treatment.
65
All the same, there is no question that the federal government’s legal authority
to quarantine individuals arriving in the U.S. from other countries is an extremely
broad one. Section 361 of the PHSA gives the Secretary the authority to “make
and enforce such regulations as in his judgment are necessary to prevent the intro-
duction, transmission, or spread of communicable diseases from foreign countries
into the States or possessions.”
66
It specifies that such regulations may “provide
for the apprehension, detention, examination, or conditional release of individu-
als.”
67
Regulations enacted pursuant to this authority allow government officials
to detain aircraft or other vessels arriving from outside the United States, conduct
non-invasive screenings of passengers, and impose a quarantine if they have
a federal quarantine in 2007 when he ignored a CDC order not to fly, but this was technically an instance
of “isolation” (the detention of already-symptomatic individuals) rather than “quarantine” (the detention
of people believed to be infected but not yet symptomatic). See Wendy Parmet, Legal Power and Legal
Rights—Isolation and Quarantine in the Case of Drug-Resistant Tuberculosis, 357 N
EW ENG.J.MED.
433, 434 (2007), https://perma.cc/LZ9J-3DYF.
63. See, e.g., Shannon Firth, Travel Bans Can’t Stop Coronavirus, Public Health Experts Tell
Congress,M
EDPAGE TODAY (Feb. 7, 2020), https://perma.cc/K6DF-UQVP; Adam Rogers, Travel Bans
and Quarantines Won’t Stop Coronavirus,W
IRED (Feb. 6, 2020, 7:00 AM), https://perma.cc/L423-
NX8E; Wendy K. Mariner, Quarantine for Coronavirus? Let’s Make That Unnecessary,S
TAT BLOG
(Feb. 28, 2020), https://perma.cc/AG37-ZSVS.
64. On March 30, President Trump stated, “I stopped some very, very infected, very, very sick
people, thousands coming in from China long earlier than anybody thought, including the experts.
Nobody thought we should do it except me. And I stopped everybody. We stopped it cold.” Hope Yen &
Calvin Woodward, Fact Check: Some Days Trump Is a “Wartime President.” Others, He’s a Federal
“Backup.” C
HI.TRIB. (Apr. 4, 2020, 6:57 PM), https://perma.cc/B5YP-ANQZ.
65. Administration officials announced a shift to a mitigation strategy on March 8. See Rebecca Klar,
Administration Officials Seek to Offer Consistent Message Amid Shifting Coronavirus Situation,T
HE
HILL (Mar. 8, 2020, 1:01 PM), https://perma.cc/2U6Q-28KP. By that time, there were 541 known cases
of COVID-19 in the United States, see COVID-19 Coronavirus Pandemic: United States,
W
ORLDOMETER (Jul. 21, 2020, 1:05 PM), https://perma.cc/VZN3-ZBRX, and given the shortage of
testing kits, it was apparent that the number of actual cases was likely much higher.
66. 42 U.S.C. § 264(a) (2018).
67. 42 U.S.C. § 264(b) (2018).
2020] EMERGENCY POWERS,REAL AND IMAGINED 41
“reason to believe that any arriving person is infected with or has been exposed
to” a communicable disease.
68
The legal authority for quarantining the passengers on the Grand Princess is
somewhat murkier. The ship was arriving from Hawaii, not from another country.
The statutory authority to quarantine individuals traveling between states is nar-
rower than the foreign quarantine authority; it is limited to individuals reasonably
believed to be infected with a communicable disease (mere exposure is insuffi-
cient).
69
It is unclear from public reports, however, whether the passengers were
held on board the ship pursuant to a federal quarantine or the exercise of other
legal authorities to prevent the docking of the ship. And while all of the American
passengers were quarantined after disembarking, they had by then spent several
days confined in close quarters with multiple COVID-19 carriers. Rightly or
wrongly, the government would likely rely on this fact to argue that they were
“reasonably believed” to be infected.
B. Domestic Measures Under Emergency and Pseudo-Emergency Powers
1. Empty Threats
Several factors might have led one to predict that President Trump would
respond to COVID-19 with a dramatic and aggressive use of emergency powers.
He has demonstrated an inflated conception of the powers of the president, and he
does not hide his admiration for authoritarian rulers and the powers they possess.
Emergency authorities enhance presidential power in a way that would seemingly
appeal to him, regardless of any specific ends they allowed him to accomplish.
He has already shown his affinity for the genre, having declared ten national
emergencies in less than three and a half years.
70
When it comes to the presence of the pandemic inside the United States bor-
ders, however, the president has faced a conundrum. Even with the best-planned,
most flawlessly executed federal response, a pandemic inevitably will cause
harm to both the public health and the economy. And the administration’s early
failures in procuring an effective, widely available test (discussed below in Part
II.B.2.a) ruled out any best-case scenario. If the president were to impose aggres-
sive emergency measures domestically, he would be forced to claim ownership
of the pandemic’s consequences, rather than being able to pin them on alleged
mismanagement by the states.
The tug-of-war between the inclination to assert sweeping power and the
desire to avoid responsibility is evident in the changing ways Pres ident Trump
has described his own role. He has referred to himself as a “wartime president,”
68. 42 C.F.R. §§ 71.32 (2019).
69. See 42 U.S.C. § 264(d)(1) (2018).
70. See Declared National Emergencies Under the National Emergencies Act,B
RENNAN CTR. FOR
JUSTICE (June 15, 2020), https://perma.cc/G4V7-PVSH. By way of comparison, Presidents Barack
Obama and George W. Bush declared 12 and 14 national emergencies, respectively, over the course of
the two terms that each served. See id.
42 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
suggesting that he is at the helm of the nation’s response.
71
He has gone so far as
to claim that “[w]hen somebody is the president of the United States, the author-
ity is total.”
72
At the same time, he has asserted that the federal government “is
merely a backup for state governments,”
73
and he has often referred to the core
components of an effective COVID-19 response—such as providing testing and
acquiring sufficient personal protective equipment (PPE)—as state
responsibilities.
74
On several occasions, the president has threatened to use sweeping powers that
he does not have, only to back down and hand the reins of the domestic COVID-
19 response back to the states. On March 28, President Trump told reporters out-
side the White House, “We might not have to do it but there’s a possibility that
sometime today we’ll do a quarantine—short-term, two weeks for New York,
probably New Jersey, certain parts of Connecticut.”
75
It was unclear whether he
was referring to an actual quarantine, whereby people in those states would be
required to stay in their homes or be placed in federal facilities for two weeks, or
a travel ban prohibiting people from traveling into or out of those states.
The president clearly lacked legal authority for the first move. While the
PHSA gives the federal government broad authority to examine and detain people
coming into the United States from overseas, it limits the federal government’s
domestic quarantine power as follows:
Regulations prescribed under this section may provide for the apprehen sion
and examination of any individual reasonably believed to be infected with a
communicable disease in a qualifying stage and (A) to be moving or about to
move from a State to another State; or (B) to be a probable source of infection
to individuals who, while infected with such disease in a qualifying stage, will
be moving from a State to another State. Such regulations may provide that if
upon examination any such individual is found to be infected, he may be
detained for such time and in such manner as may be reasonably necessary.
76
Under this provision, there is no situation in which the federal government
could impose a blanket quarantine order on an entire state. Even if it could some-
how claim a reasonable belief that every person within that state was infected, it
could not order a quarantine until a medical examination confirmed that belief.
71. Caitlin Oprysko & Susannah Luthi, Trump Labels Himself “A Wartime President” Combating
Coronavirus,P
OLITICO (Mar. 18, 2020, 6:10 AM), https://perma.cc/J74C-QNZ9.
72. Donald Trump Coronavirus Press Conference Transcript April 13,R
EV BLOG (Apr. 14, 2020),
https://perma.cc/23V5-W699.
73. Yen & Woodward, supra note 64.
74. See, e.g., Trump: U.S. States, Not Federal Government, Must Improve Testing,R
EUTERS (Apr.
17, 2020, 7:39 PM), https://perma.cc/W9G9-SFBT; Morgan Chalfant, Trump Lashes Out at Cuomo
Over Remarks on Presidential Authority,T
HE HILL (Apr. 14, 2020, 10:49 AM), https://perma.cc/PGK3-
YKKL.
75. Noah Higgins-Dunn, Trump Considers “Enforceable” Quarantine In New York, New Jersey and
Parts of Connecticut, CNBC (Mar. 28, 2020, 10:15 AM), https://perma.cc/AHX3-H2MK.
76. 42 U.S.C. § 264(d) (2018).
2020] EMERGENCY POWERS,REAL AND IMAGINED 43
As for an interstate travel ban, Section 361 does allow the Secretary of HHS to
“make and enforce such regulations as in his judgment are necessary to prevent
the introduction, transmission, or spread of communicable diseases ...fromone
State or possession into any other State or possession.”
77
However, the subse-
quent sentence suggests that Congress had more limited measures in mind than a
total travel ban: “For purposes of carrying out and enforcing such regulations, the
Surgeon General may provide for such inspection, fumigation, disinfection, sani-
tation, pest extermination, destruction of animals or articles found to be so
infected or contaminated as to be sources of dangerous infection to human beings,
and other measures, as in his judgment may be necessary.”
78
The regulations that
have been promulgated mirror this language;
79
none explicitly authorizes the fed-
eral government to seal interstate borders.
Construing the law and its implementing regulations to permit the closure of
interstate borders would raise significant constitutional concerns. The Supreme
Court has recognized a constitutional right to interstate travel. It has located
aspects of that right within the Privileges and Immunities Clause,
80
which
requires states to give equal rights to citizens of other states, and the Dormant
Commerce Clause,
81
under which states cannot take actions that interfere signifi-
cantly with the federal prerogative of interstate commerce. The legal rationale in
those decisions presumably would not limit a federal interstate travel ban. In
other cases, however, the Court has relied on the Due Process Clause
82
or the
Equal Protection Clause
83
to analyze state action that burdens or discriminates
against those traveling between states. That analysis would apply equally to fed-
eral action, and would require the government to show not only that it had a com-
pelling interest, but that a complete ban on interstate travel was the least
restrictive means of furthering it.
The president’s threat to quarantine three states came on a Saturday afternoon;
by that evening, he had walked the proposal back. In a tweet that made no men-
tion of any legal concerns, he stated, “On the recommendation of the White
House CoronaVirus Task Force, and upon consultation with the Governor’s [sic]
of New York, New Jersey and Connecticut, I have asked the @CDCgov to issue
a strong Travel Advisory, to be administered by the Governors, in consultation
withthe...FederalGovernment.Aquarantinewillnotbenecessary.Thank
you!”
84
The CDC promptly issued a non-binding travel advisory, urging residents
77. 42 U.S.C. § 264(a) (2018).
78. Id.
79. See 42 C.F.R. § 70.2.
80. See Saenz v. Roe, 526 U.S. 489, 501 (1999).
81. See Edwards v. California, 314 U.S. 160, 172 (1941).
82. See Shapiro v. Thompson, 394 U.S. 618, 642 (1969).
83. See Zobel v. Williams, 457 U.S. 55, 60 n.6 (1982).
84. Katy O’Donnell, Trump Backs Off Quarantine of New York, Surrounding Area,P
OLITICO (Mar.
28, 2020, 9:40 PM), https://perma.cc/98HG-Z3SB.
44 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
of New York, New Jersey, and Connecticut “to refrain from non-essential domes-
tic travel for 14 days.”
85
Oddly, this threat to seal off three states occurred four days after President
Trump said that he wanted the nation “opened up and just raring to go by Easter,”
which fell on April 12.
86
Although he subsequently postponed the target date, his
message from that point on (the proposed tri-state quarantine notwithstanding)
was that the states should be preparing to lift their shut-down orders. These orders
varied from state to state. At that time, most involved the closure of schools and
non-essential businesses, as well as a prohibition on public gatherings.
When observers pointed out that state and local officials are responsible for
deciding when to lift their own orders, President Trump responded on Twitter:
For the purpose of creating conflict and confusion, some in the Fake News
Media are saying that it is the Governors [sic] decision to open up the states,
not that of the President of the United States & the Federal Government. Let it
be fully understood that this is incorrect. . . .
. . . [I]t is the decision of the President, and for many good reasons. With that
being said, the Administration and I are working closely with the Governors,
and this will continue. A decision by me, in conjunction with the Governors
and input from others, will be made shortly!
87
At a press conference that evening, the president reiterated that “I have the ulti-
mate authority” to lift the state-imposed restrictions. He followed up with his
now-infamous claim that “[w]hen somebody is the president of the United States,
the authority is total. And that’s the way it has to be.”
88
Instead of correcting the
president, Vice President Pence echoed him: “Make no mistake about it, in the
long history of this country, the authority of the president of the United States
during national emergencies is unquestionably plenary.”
89
By the following day, the president had changed his message and his planned
course of action. On April 14, he said that he would “authorize,” not order, the
states to re-open, and that each state or locality would decide when that was
appropriate: “The governors are going to be opening up their states. They’re
going to declare when. They’re going to know when.”
90
He then suggested that
the federal government, rather than forcing states to lift their orders as he had
85. Joseph Spector, CDC Issues “Domestic Travel Advisory” for NY, NJ and Connecticut. Here’s
What It Means, USA T
ODAY (Mar. 29, 2020, 7:58 AM), https://perma.cc/LMU4-AJB8.
86. Kevin Liptak et al., Trump Says He Wants the Country “Opened Up and Just Raring to Go by
Easter” Despite Health Experts’ Warnings, CNN (Mar. 24, 2020, 11:47 PM), https://perma.cc/UBE4-
2QKB.
87. Donald J. Trump (@realDonaldTrump), T
WITTER (Apr. 13, 2020, 10:53 AM), https://perma.cc/
2K2G-TZBG.
88. Donald Trump Coronavirus Press Conference Transcript April 13, supra note 72.
89. Id.
90. Donald Trump Coronavirus Press Briefing Transcript April 14: Trump Halts WHO Funding,R
EV
BLOG (Apr. 14, 2020), https://perma.cc/N4TH-PZFS.
2020] EMERGENCY POWERS,REAL AND IMAGINED 45
threatened the day before, might actually force some stays to keep their orders in
place: “There’s some that want to open up almost now. Now if we disagree with
it, we’re not going to let them open. . . . If some governor has a lot of problems, a
lot of cases, a lot of death, and they want to open early, we’re not going to let it
happen.”
91
To date, the president has not ordered any state either to lift or to keep in place
its emergency orders. Instead, the administration issued non-binding guidelines
to assist states in deciding when and how to “re-open.” When those guidelines
were criticized as lacking specifics, President Trump responded, “We want the
governors to call those shots.”
92
Nonetheless, he has never retracted his claim
that the president has absolute power, not only to require states to lift or maintain
their shut-down orders, but to make any and all decisions during emergencies.
That claim is manifestly and dangerously wrong. As noted above, there are no
express emergency powers in Article II of the Constitution, and the president’s
inherent emergency powers are limited even during wartime, when they are at
their peak. The fact that the president has declared a “national emergency” does
not change the analysis. That phrase, invoked by Vice President Pence as a basis
for claiming plenary presidential authority, has no constitutional significance.
Rather, it appears in more than 120 statutory provisions that provide the president
with specific authorities when he declares a “national emergency.” The National
Emergencies Act sets forth procedural rules for declaring, renewing, terminating,
and reporting on national emergency declarations.
Because Congress has not defined “national emergency,” courts have been
reluctant to second-guess the president’s determination that such an emergency
exists;
93
in that sense, the authority that Congress delegated is quite broad.
However, the powers triggered by an emergency declaration are unquestionably
limited to the specific authorities Congress has provided, and those limits are en-
forceable by the courts.
94
And there are no statutory provisions that enhance
whatever authority the president might otherwise have, in the absence of a
national emergency declaration, to override state orders of the type at issue
here.
95
Indeed, even Congress would likely face some limits on its ability to override
the measures that the states have taken to address COVID-19. The Tenth
Amendment reserves to the people and the states any powers not granted to the
91. Id.
92. Megan Cassella & Brianna Ehley, Unemployed Workers Face Choice Between Safety and Money
as States Reopen,P
OLITICO (Apr. 29, 2020, 7:09 PM), https://perma.cc/6FXE-QP85.
93. See, e.g., Beacon Products Corp. v. Reagan, 633 F. Supp. 1191, 1194-95 (D. Mass. 1986).
94. See, e.g., California v. Trump, 407 F. Supp. 3d 869, 891-99 (N.D. Cal. 2019) (holding that the
Trump administration’s diversion of Department of Defense funds to build the border wall exceeded the
authority provided by 10 U.S.C. § 2808, which allows the Secretary of Defense to reallocate funds for
“military construction projects” that are necessary to support the armed forces during a declared national
emergency).
95. See G
UIDE TO EMERGENCY POWERS, supra note 9.
46 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
federal government.
96
A core state power is the so-called “police power”—the
authority to make and enforce laws governing the public health, safety, and wel-
fare.
97
Accordingly, most aspects of public health are widely considered to fall
within state rather than federal jurisdiction.
98
The same is true for the regulation
of business and travel within state borders.
Of course, if the federal government is acting pursuant to one if its own enum-
erated powers, it will prevail in any conflict with the state’s police power, by vir-
tue of the Supremacy Clause.
99
The broadest and most relevant of the federal
government’s powers is arguably contained in the Commerce Clause, which
empowers Congress to pass laws regulating commerce between the states and
with other nations.
100
Since the 1930s, courts have interpreted this clause
extremely broadly to authorize Congress to “regulate purely local activities” as
long as they are “part of an economic class of activities that have a substantial
effect on interstate commerce.”
101
Some aspects of the states’ shutdown orders—for instance, the temporary clo-
sure of non-essential businesses—might well pass that low threshold (although
Congress could at most lift the prohibition on these businesses’ operation; it could
not compel them to operate
102
). But the reach of the Commerce Clause is not infi-
nite. State or local orders closing schools, requiring people to wear face masks in
public, imposing a 6-foot social distancing rule, or prohibiting gatherings in pub-
lic spaces have a more tenuous tie to economic activity and might well be insu-
lated from congressional interference. In any event, the power to regulate
interstate commerce belongs to Congress, not the president. Unless or until
Congress passes a law giving the president the authority to override aspects of the
states’ orders—which Congress has not done—he cannot act.
2. The Underused Powers
At the same time that he was imposing immigration bans and threatening to
use powers he did not have to override the states’ authority, the president was
balking at using the emergency powers that are available to help shore up the
domestic public health response to COVID-19. The primary such powers are
96. See U.S. CONST. amend. X.
97. See United States v. Morrison, 529 U.S. 598, 618 n.8 (2000) (“[T]he Constitution created a
Federal Government of limited powers, while reserving a generalized police power to the States.”).
98. See Responsibilities in a Public Health Emergency,N
AT’L CONF. OF STATE LEGS. (Oct. 29,
2014), https://perma.cc/F6RG-TNUT (“The preservation of the public health has historically been the
responsibility of state and local governments.”).
99. See U.S. C
ONST. art. VI, cl. 2; see also Hamilton v. Ky. Distilleries Co., 351 U.S. 146, 156 (1919)
(“That the United States lacks the police power, and that this was reserved to the States by the Tenth
Amendment, is true. But it is nonetheless true that when the United States exerts any of the powers
conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise
may be attended by the same incidents which attend the exercise by a State of its police power.”).
100. See U.S. C
ONST. art. I, § 8, cl. 3.
101. Gonzales v. Raich, 545 U.S. 1, 17 (2005) (internal quotation marks omitted).
102. See Nat’l Fed. Indep. Bus. v. Sebelius, 567 U.S. 519, 555 (2012) (observing that “[t]he Framers
gave Congress the power to regulate commerce, not to compel it”) (emphasis in original).
2020] EMERGENCY POWERS,REAL AND IMAGINED 47
contained in, or flow from, the Public Health Service Act, the Federal Food,
Drug, and Cosmetic Act, the Stafford Act, the Social Security Act, the National
Emergencies Act, and the Defense Production Act.
a. The Public Health Service Act and Related Laws (the Federal Food, Drug,
and Cosmetic Act and the PREP Act)
Secretary Azar declared a public health emergency under the PHSA on
January 31, on the heels of a similar declaration by the World Health
Organization.
103
Much like a presidential declaration of national emergency, this
declaration gives executive branch officials the ability to take a number of steps
to address the crisis, but it is not self-executing; the relevant officials must take
further action to implement the measures they deem appropriate.
One of the most important emergency powers available during a public health
emergency is the ability, as set forth in the Federal Food, Drug, and Cosmetic
Act, to speed up the Food and Drug Administration’s (FDA) approval of medical
tests and treatments. Ordinarily, such approval can take months or longer, as a
product undergoes a series of required safety and efficacy review measures. In a
public health emergency, however, manufacturers can apply for “emergency use
authorizations” (EAUs), which allow them to begin marketing a product before
the review process is complete.
104
On January 31, when Secretary Azar declared a public health emergency, the
rapid development and widespread distribution of an effective diagnostic test was
arguably the most important measure the federal government could have taken to
limit the spread of COVID-19. The FDA issued an EAU to the CDC on February
4. By February 8, it was apparent that the CDC’s test was badly flawed. Even
though multiple hospitals, universities, and companies were eager to develop
their own tests, however, it was not until three weeks later that the FDA issued its
next EAU (to the New York State Department of Health). A third EAU—the first
one issued to a commercial manufacturer—did not come until March 12.
105
A key reason for the delay was the FDA’s lack of flexibility when the EAU
process itself proved to be a roadblock for research scientists. As the Washington
Post reported, “the EAU was a bureaucratic puzzle they had never encoun-
tered.”
106
To comply with FDA regulations, applicants had to spend dozens of
hours on paperwork and to submit hard copies of their applications by mail. On
103. See Determination that a Public Health Emergency Exists,DEP’TOFHEALTH &HUMAN SERVS.
(Jan. 31, 2020), https://perma.cc/BRV4-B8WW; Press Release, Dr. Tedros Adhanom Ghebreyesus,
Director Gen., World Health Organization [WHO], Statement on IHR Emergency Committee on Novel
Coronavirus (Jan. 30, 2020), https://perma.cc/D3ZL-PLF6.
104. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3 (2018).
105. See Shawn Boburg et al., Inside the Coronavirus Testing Failure: Alarm and Dismay Among the
Scientists Who Sought to Help,W
ASH.POST (Apr. 3, 2020), https://perma.cc/QBG4-Y4QV; Bob Ortega
et al., How the Government Delayed Coronavirus Testing, CNN (Apr. 9, 2020, 8:07 PM), https://perma.
cc/RXX6-VB3P; Emergency Use Authorizations for Medical Devices, FDA (last visited June 12, 2020),
https://perma.cc/UTX9-HEZ4.
106. Boburg et al., supra note 105.
48 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
February 28, a large group of clinical scientists sent a letter to Congress com-
plaining that the FDA’s rules were slowing rather than hastening the development
of working tests: “[N]o test manufacturer or clinical laboratory has successfully
navigated the EUA process . . . to date.”
107
On February 29, the FDA announced a revised policy, allowing laboratories to
begin using tests that had shown promise before submitting all the necessary
paperwork.
108
But its delay meant that one of the most important emergency
authorities available to the administration was effectively unused for several
weeks.
Even after test production increased significantly, states’ capacity to test for
COVID-19 continued (and still continues) to lag far behind the need. This is in
part due to a shortage of equipment needed to administer the tests.
109
Such short-
ages could be addressed through more aggressive deployment of the Defense
Production Act (discussed below in Part II.B.2.d.). However, the president has
consistently maintained that ensuring sufficient testing capacity is a state rather
than a federal responsibility.
110
The pressing need for equipment implicates another public health emergency
resource: the “strategic national stockpile” (SNS). The stockpile, established
under the PHSA, is a reserve supply of “drugs, vaccines, and other biological
products, medical devices, and other supplies in such numbers, types, and
amounts . . . to provide for the emergency health security of the United States . . .
in the event of a bioterrorist attack or other public health emergency.”
111
Under
the law, deployment of stockpile resources to respond to an actual or potential
emergency is “at the discretion” of the Secretaries of HHS and FEMA.
112
By most accounts (including an HHS Inspector General report
113
and agency
documents provided to Congress
114
), the distribution of materials from the SNS
during the COVID-19 emergency has been both slow and inadequate. Many
states experienced delays in obtaining requested items and received only a frac-
tion of what they needed. In the meantime, hospitals in those states were suffering
107. Id.
108. See Press Release, Center for Devices and Radiological Health, Policy for Coronavirus Disease-
2019 Tests During the Public Health Emergency (Revised) (May 2020), https://perma.cc/7UQK-2K8D.
109. See Kelsy Ketchum & Leo O’Connor, COVID-19 Testing Problems Started Early, U.S. Still
Playing from Behind,M
ODERN HEALTHCARE BLOG (May 11, 2020, 2:55 PM), https://perma.cc/RB75-
L2YF.
110. See, e.g., Amy Goldstein, Administration Leaves Testing Responsibility to States in Report to
Congress,W
ASH.POST (May 24, 2020, 10:08 PM), https://perma.cc/B5K8-LBWR.
111. 42 U.S.C. § 247d-6b(a)(1) (2018).
112. 42 U.S.C. § 247d-6b(a)(3)(G) (2018).
113. See U.S. D
EP’TOFHEALTH &HUMAN SERVS., OFF. OF INSPECTOR GEN., OEI-06-20-00300,
H
OSPITAL EXPERIENCES RESPONDING TO THE COVID-19 PANDEMIC:RESULTS OF A NATIONAL PULSE
SURVEY MARCH 23-27, 2020 (2020), https://perma.cc/W3DT-B4WB.
114. See U.S. D
EP’TOFHEALTH &HUMAN SERVS., SNS PPE DISTRIBUTION REPORT FOR THE COMM.
ON OVERSIGHT AND REFORM, 116TH CONG. (Apr. 6, 2020), https://perma.cc/K5K3-TT49; see also Dinah
Voyles Pulver & Erin Mansfield, Rare Look at Stockpile Handouts Shows Which States Got Ventilators,
Masks Amid Coronavirus, USA T
ODAY (Apr. 10, 2020, 11:23 AM), https://perma.cc/VUE8-66EA.
2020] EMERGENCY POWERS,REAL AND IMAGINED 49
acute shortages of personal protective equipment and ventilators. By early April,
90 percent of the stockpile had been depleted, with the remaining 10 percent held
in reserve for federal use, leaving states to compete with each other in the private
market for needed supplies.
115
Some of these problems were a result of conditions predating the pandemic,
and cannot fairly be viewed as a failure by the Trump administration to properly
invoke and implement emergency powers. The SNS has long been underfunded
and understocked. Much of the PPE in the stockpile was used during the H1N1
outbreak in 2009 and never replenished. Even if it had been well-supplied, public
health officials maintain that the stockpile was never intended to furnish adequate
resources for a major pandemic, but rather to serve as a back-up for the states’
own reserves, and/or as a stopgap pending ramped-up production.
116
It is clear, however, that there was not a well-coordinated and aggressive effort
to ensure that the supplies in the stockpile were quickly distributed to the loca-
tions that most needed them. Official records show significant delays in fulfilling
requests made by some states (while other states received much quicker
responses). Local officials’ attempts to communicate with the federal government
about access to stockpile supplies were often met with silence. Allocations of
PPE were made largely on the basis of the states’ populations, rather than the
number of COVID-19 cases, resulting in a system of distribution that did not
fairly reflect actual needs.
117
When questioned about these problems, administration officials insisted that
states were responsible for procuring their own equipment. Jared Kushner, the
president’s son-in-law and the designated head of supply-chain issues, stated,
“The notion of the federal stockpile was it’s supposed to be our stockpile; it’s not
supposed to be the state stockpiles that they then use.”
118
His words were incon-
sistent with language on the HHS website, which indicated that the stockpile’s
purpose is to ensure an adequate supply of equipment for states. That language
was quickly changed to hew more closely to Kushner’s characterization.
119
One authority available during public health emergencies that the administra-
tion did not hesitate to use was the Public Readiness and Emergency
Preparedness (PREP) Act. This law provides broad immunity from liability
to entities, including government agencies, that manufacture, distribute, or
115. See Assoc. Press, Coronavirus Leaves Federal Stockpile of Protective Equipment Nearly
Depleted, NBC (Apr. 9, 2020, 7:02 AM), https://perma.cc/8R58-DR7T.
116. See Sarah Fitzpatrick, Why the Strategic National Stockpile Isn’t Meant to Solve a Crisis like
Coronavirus, NBC (Mar. 28, 2020), https://perma.cc/KS8Q-P2AL.
117. See Press Release, H. Comm. on Oversight and Reform (Apr. 8, 2020), https://perma.cc/2NS3-
8SR8; SNS PPE D
ISTRIBUTION REPORT, supra note 114, at 89; Lydia DePillis et al., Here’s Why Florida
Got All the Emergency Medical Supplies It Requested While Other States Did Not,P
ROPUBLICA (Mar.
10, 2020, 10:36 AM), https://perma.cc/HF76-X6K2; Sara Murray & Scott Glover, Nation’s Stockpile
Proves to be No Match for a Pandemic, CNN (May 6, 2020, 7:37 PM), https://perma.cc/XE4L-YMEB.
118. Assoc. Press, Trump Administration Tries to Narrow Stockpile’s Role for States, L.A. T
IMES
(Apr. 3, 2020), https://perma.cc/DB74-VCEJ.
119. See id.
50 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
administer medical tests or treatments to respond to a public health emergency.
People harmed by these medical countermeasures are limited to claims based on
“willful misconduct.”
120
The HHS Secretary issued a declaration conferring im-
munity under the PREP Act on February 4—the same day he issued an
Emergency Use Authorization to the CDC to develop a test for COVID-19.
121
b. The Stafford Act and the Social Security Act
Another emergency authority that lay dormant for several weeks was Section
1135 of the Social Security Act. This provision allows the Secretary of HHS to
waive certain Medicare, Medicaid, and Children’s Health Insurance Program
requirements in order to facilitate the provision of health care services. For
instance, the Secretary can waive conditions of participation or other certification
requirements, preapproval requirements, and requirements that physicians and
other health care professionals be licensed in the state in which they are providing
services. The Secretary may invoke Section 1135, however, only if two states of
emergency are in effect: (1) a public health emergency declared by the Secretary
under the PHSA, and (2) either a Stafford Act emergency or a national emergency
declared by the president.
122
As COVID-19 spread through the country and states began to take unprece-
dented emergency action, the president’s failure to declare a national emergency
became conspicuous. (The failure to declare a Stafford Act emergency was more
explicable—or at least seemed so—because state governors generally must
request such a declaration.) A declaration of national emergency would not only
unlock Section 1135; it would also carry great symbolic significance, both mark-
ing the seriousness of the crisis and conveying a presidential commitment to tack-
ling it.
During this period, however, President Trump appeared intent on downplaying
the significance of the pandemic.
123
Reports emerged that the president was reluc-
tant to declare a national emergency because it would contradict his message that
matters were under control and that the coronavirus was no worse than the sea-
sonal flu. Acknowledging the gravity of the crisis might have led to even greater
turmoil in the stock markets, which in turn could have affected the president’s
reelection prospects.
124
120. 42 U.S.C. § 247d-6d (2018).
121. See Dep’t of Health and Human Services Declaration Under the Public Readiness and
Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198
(Feb. 4, 2020).
122. See 42 U.S.C. § 1320b-5 (2018 & Supp. II 2020).
123. For instance, on February 24, 2020, President Trump tweeted, “The Coronavirus is very much
under control in the USA. We are in contact with everyone and all relevant countries. CDC & World
Health have been working hard and very smart. Stock Market starting to look very good to me!” Donald
J. Trump (@realDonaldTrump), T
WITTER (Feb. 24, 2020, 4:42 PM), https://perma.cc/U6QG-VV7D.
124. See Anita Kumar, Trump Fears Emergency Declaration Would Contradict Coronavirus
Message,P
OLITICO (Mar. 11, 2020, 6:46 PM), https://perma.cc/9JY2-D567.
2020] EMERGENCY POWERS,REAL AND IMAGINED 51
It was not until March 13 that the president bowed to public pressure and
declared a national emergency.
125
When he finally acted, he did so with character-
istic disregard for the boundaries of the law. While the national emergency decla-
ration was well within his discretion, he simultaneously declared a “nationwide”
Stafford Act emergency, even though no state governor had requested one.
126
In
doing so, he invoked a provision of the law that allows the president to declare an
emergency without a state request if “the emergency involves a subject area for
which, under the Constitution or laws of the United States, the United States exer-
cises exclusive or preeminent responsibility and authority.”
127
As discussed
above, public health is an area in which state governments—not the federal
government—have primary jurisdiction.
In practice, this overreach probably changed little. State governors clearly
could have—and, eventually, likely would have—requested state-by-state decla-
rations, and the legal standard for issuing them was clearly met. Nonetheless, the
assertion that public health is an area of “exclusive or preeminent” federal author-
ity must be viewed in light of President Trump’s claims that the president’s
authority in an emergency is “total,” as well as similar claims that he has made in
other contexts, such as his notorious statement that Article II of the Constitution
allows him to do “whatever I want to do.”
128
Against this backdrop, it is difficult
to view any instance in which President Trump lays claim to power he does not
have as harmless error.
By virtue of the national emergency and Stafford Act emergency declarations
(either of which would have been sufficient for the purpose), the Secretary of
HHS was able to invoke Section 1135, and he thereafter issued a series of waivers
under that authority. Among other things, the Secretary eased constraints on the
practice of telemedicine; waived provisions that would otherwise have limited
the number of beds in critical-access hospitals to 25, and the length of stay to
96 hours; allowed admission to nursing homes without a prior three-day hospital
stay; made it easier for hospitals to hire additional doctors, acquire new office
space, and move patients within their facilities; and temporarily suspended
Medicare eligibility screening requirements, including fingerprinting and in-
person site visits.
129
Somewhat more controversially, the Centers for Medicare
and Medicaid Services suspended certain enforcement activities and issued blan-
ket waivers of sanctions under the Stark Law, which prohibits doctors from
125. See Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020).
126. See Letter from Pres. Donald J. Trump to Chad F. Wolf, Acting Sec’y, Dep’t of Homeland
Security, Steven T. Mnuchin, Sec’y, Dep’t of the Treasury, Alex M. Azar II, Sec’y, Dep’t of Health &
Human Servs., and Pete T. Gaynor, Adm’r, Fed. Emergency Mgmt. Agency (Mar. 13, 2020), https://
perma.cc/WB2X-SFND.
127. 42 U.S.C. § 5191(b) (2018).
128. Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump Falsely Says the Constitution
Gives Him “The Right to Do Whatever I Want,” W
ASH.POST (July 23, 2019), https://perma.cc/7QS3-
5LYU.
129. See COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers,C
TR. FOR
MEDICARE &MEDICAID SERV. (June 5, 2020), https://perma.cc/9CZ5-UHAZ.
52 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
referring patients for Medicare-covered services to an entity or person with
whom the doctor has a financial relationship.
130
In addition, under the Stafford
Act declaration (but not the national emergency declaration), the federal govern-
ment assumed 75% of the costs incurred by states in providing a wide range of
emergency-response services.
131
At the same time he declared a nationwide Stafford Act emergency, the presi-
dent invited states to request “major disaster” declarations. This, too, was possi-
bly an overreach. Under the Stafford Act, a declaration of a major disaster (which
requires a gubernatorial request in all instances) triggers greater authorities and
resources than an emergency declaration. The definition of “major disaster,”
however, is significantly narrower. An “emergency” is defined as “any occasion
or instance for which, in the determination of the President, Federal assistance is
needed to supplement State and local efforts and capabilities to save lives and to
protect property and public health and safety, or to lessen or avert the threat of a
catastrophe.”
132
A “major disaster” is limited to “any natural catastrophe (includ-
ing any hurricane, tornado, storm, high water, winddriven water, tidal wave,
tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or
drought), or, regardless of cause, any fire, flood, or explosion.”
133
On its face, it is
far from clear that this language would encompass a pandemic. No previous pres-
ident has ever declared a “major disaster” to respond to a public health crisis.
All 50 states, the District of Columbia, and four U.S. territories took the presi-
dent up on his invitation to request major disaster declarations.
134
The resulting
declarations provided access to a much larger pot of federal money ($41.6 billion)
than the emergency declarations ($600 million).
135
They also entitled states that
had deployed National Guard units to a 100% reimbursement of the deployment
cost.
136
In theory, they could have allowed the federal government to provide
many different types of assistance to individuals affected by the pandemic,
including unemployment assistance, housing assistance, and legal services.
However, the only form of individual assistance the administration has provided
pursuant to the major disaster declarations is crisis counseling, which has been
made available in ten states.
137
130. See id.
131. See E
LIZABETH M. WEBSTER,WILLIAM L. PAINTER &ERICA A. LEE,CONG.RESEARCH SERV.
R46326, S
TAFFORD ACT DECLARATIONS FOR COVID-19 FAQ (2020).
132. 42 U.S.C. § 5122(1) (2018).
133. 42 U.S.C. § 5122(2) (2018).
134. See COVID-19 Disaster Declarations,F
ED.EMERGENCY MGMT.AGENCY, https://perma.cc/
ZV2J-DCM6.
135. See W
EBSTER,PAINTER &LEE, supra note 131, at 26.
136. See Press Release, Fed. Emergency Mgmt. Agency, FEMA Releases Information Regarding
National Guard Title 32 Status (Mar. 29, 2020), https://perma.cc/UH2Q-VYZ9.
137. See W
EBSTER,PAINTER &LEE, supra note 131, at 12-13.
2020] EMERGENCY POWERS,REAL AND IMAGINED 53
c. National Emergency Powers
As noted above, the president resisted declaring a national emergency for sev-
eral weeks. Since declaring one on March 13, he has invoked least three of the
authorities that become available in a national emergency.
First, in the proclamation declaring a national emergency, he invoked the
waiver provisions of Section 1135 of the Social Security Act, discussed above in
Part II.B.2.b. Those provisions are triggered by a combination of a public health
emergency declaration and either a national emergency declaration or a Stafford
Act emergency declaration. Because he declared a Stafford Act emergency
simultaneously, the national emergency declaration was not actually necessary to
invoke the 1135 waiver authority.
Second, on March 27, the president issued an executive order authorizing the
Departments of Defense and Homeland Security to order as many as 1,000,000
members of the Ready Reserve to active duty to assist in COVID-19 relief efforts.
138
He relied on several statutory provisions that allow the activation of the Ready
Reserve and retired military officers during declared national emergencies. Several
thousand reservists have been deployed under this order
139
and have engaged in
activities such as packaging and distributing food and other supplies, building facili-
ties such as medical field hospitals, cleaning and disinfecting common spaces, and
providing labor for call centers.
140
These activities have been appropriate and help-
ful; the question is why it took the president almost two months to declare a national
emergency and then take this step after both the World Health Organization and his
own Secretary of HHS had declared a public health emergency.
Third, on April 19, the president issued an executive order authorizing the
Secretary of the Treasury, in consultation with the Secretary of Homeland
Security, to extend deadlines for the payment of duties, fees, and taxes on the
importation of goods by “importers suffering significant financial hardship
because of COVID-19.”
141
The order constituted an invocation of 19 U.S.C.
§1318(a), under which the president may authorize the Secretary of the Treasury
to extend statutory deadlines for “the performance of any act” during a declared
emergency. While the measure, implemented by the Treasury Secretary on April
22,
142
provided relief for U.S. companies that rely heavily on importation, domes-
tic industry associations argued that it actually worsened the economic distress of
companies that rely on domestic production (because it placed them at a competi-
tive disadvantage).
143
138. See Exec. Order No. 13,912, 85 Fed. Reg. 18,407 (2020).
139. See COVID-19 Infographic,D
EP’TOFDEF. (May 27, 2020), https://perma.cc/3RKC-APKN.
140. See Press Release, Nat’l Conf. of State Legs., National Guard Assists Response to the COVID-
19 Pandemic (Apr. 4, 2020), https://perma.cc/SF4U-2XF7.
141. Exec. Order No. 13,916, 85 Fed. Reg. 22,951 (2020).
142. See 19 C.F.R. pt. 24 (2019).
143. See Frances P. Hadfield et al., President Trump Issues an Executive Order to Temporarily
Extend Deadlines for Certain Duty Payment,C
ROWELL &MORING INT’L TRADE LAW:CUSTOMS BLOG
(Apr. 20, 2020), https://perma.cc/F53E-JYYV.
54 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
d. Defense Production Act
A major impediment in responding to the COVID-19 pandemic has been the
inability of health care providers to obtain needed supplies and equipment.
Diagnostic test components, personal protective equipment, and ventilators have
all been in short supply. Under these conditions of scarcity, states have often
found themselves in competition with one another—and sometimes with foreign
nations—to purchase the items they need from private manufacturers. This has
driven up the cost and effectively priced some states out of the market.
By early March, there were calls for the president to invoke the Defense
Production Act of 1950. The law authorizes various actions to ensure an adequate
supply of materials necessary for “national defense.” It defines “national defense”
to include “emergency preparedness activities conducted pursuant to title VI of
The Robert T. Stafford Disaster Relief and Emergency Assistance Act,”
144
which
in turn defines “emergency preparedness” to include “all those activities and
measures designed or undertaken to prepare for or minimize the effects of a haz-
ard upon the civilian population [and] to deal with the immediate emergency con-
ditions which would be created by the hazard.”
145
The DPA thus can be viewed
as an emergency power, and there is little question that it may be used to respond
to the COVID-19 pandemic.
The law contains several provisions that have relevance in the COVID-19 con-
text. Under Section 101 in Title I, the president may require companies to priori-
tize federal contracts that he deems “necessary or appropriate to promote the
national defense” over others in the queue; he may also require the acceptance
and performance of federal contracts “by any person he finds to be capable of
their performance.”
146
In addition, the president may “allocate materials, services,
and facilities in such manner, upon such conditions, and to such extent as he shall
deem necessary or appropriate to promote the national defense,”
147
although sub-
section (b) states that he may not use the DPA to “control the general distribution
of any material in the civilian market” unless he finds that the material is “a
scarce and critical material essential to the national defense,” and that there is no
other workable way to meet the need.
148
Under Section 102, the president may
prohibit the hoarding of, and profiteering off, materials that he designates.
149
Title III of the DPA authorizes the president to create financial incentives for
the production of materials necessary for the national defense. He may issue
direct loans or loan guarantees;
150
he may also purchase or make purchase com-
mitments for needed materials, make subsidy payments, or install and purchase
equipment for government- and privately-owned industrial facilities to expand
144. 50 U.S.C. § 4552(14) (2018).
145. 42 U.S.C. § 5195a(a)(3) (2018).
146. 50 U.S.C. § 4511(a)(1) (2018).
147. 50 U.S.C. § 4511(a)(2) (2018).
148. 50 U.S.C. § 4511(b) (2018).
149. See 50 U.S.C. § 4512 (2018).
150. See 50 U.S.C. § 4532 (2018).
2020] EMERGENCY POWERS,REAL AND IMAGINED 55
their productive capacity.
151
Finally, under a provision of Title VII, if the presi-
dent finds that “a condition exists which may pose a direct threat to the national
defense or its preparedness programs,” the president may approve voluntary
agreements by companies and industries to cooperate in the production of needed
materials.
152
The president’s approval constitutes a legal defense if the parties’
actions under the agreement would otherwise violate antitrust or contract laws.
153
Following pleas from governors, health care providers, and lawmakers—
including a March 6 letter from nine senators
154
and a March 13 letter from 57
members of the House
155
—President Trump issued an executive order on March
18 purporting to invoke the Defense Production Act. The order included a presi-
dential finding that “health and medical resources needed to respond to the spread
of COVID-19, including personal protective equipment and ventilators, meet the
criteria specified in Section 101(b) of the Act.”
156
It did not, however, implement
any of the measures authorized by the statute. Instead, it delegated the president’s
authority under Section 101 of the DPA to the Secretary of HHS, and authorized
him to use that authority as he saw fit. On March 23, the president issued an order
that similarly delegated the DPA’s anti-hoarding authority to the Secretary.
157
As the days went by and no apparent action was taken pursuant to the orders,
public pressure mounted. On March 24, the administrator of FEMA appeared on
CNN and asserted that the administration would use the DPA to expedite the pro-
duction of 60,000 test kits and 500 million face masks. Speaking at a White
House news conference that evening, however, President Trump said it would
not be necessary to use the Act, and FEMA was forced to walk back its
statement.
158
Defending his increasingly conspicuous failure to use the DPA, President
Trump painted it as an extreme and extraordinary measure. At a White House
press conference, he (wrongly) characterized using the Act as nationalizing indus-
try. “[W]e’re a country not based on nationalizing our business,” he said. “Call a
person over in Venezuela; ask them how did nationalization of their businesses
work out. Not too well.”
159
He suggested that even putting the Act in play through
his March 18 order was “actually a big deal. I mean, when this was announced, it
sent tremors through our business community and through our country.”
160
151. See 50 U.S.C. § 4533 (2018).
152. 50 U.S.C. § 4558 (2018).
153. See id.
154. See Alex Ward, Senators Urge Trump to Use Defense Production Act to Make More COVID-19
Tests,V
OX NEWS (May 6, 2020, 3:00 PM), https://perma.cc/N8C5-YR7P.
155. See Press Release, Andy Levin, Rep., 9th Dist. of Mich. (Mar. 13, 2020), https://perma.cc/
QJT3-2KAS.
156. Exec. Order No. 13,909, 85 Fed. Reg. 16,227 (2020).
157. See Exec. Order No. 13,910, 85 Fed. Reg. 17,001 (2020).
158. See Rebecca Ballhaus & Andrew Restuccia, FEMA Pulls Back from Defense Production Act
Amid Mixed Signals,W
ALL ST. J. (Mar. 24, 2020, 8:51 PM), https://perma.cc/EW9E-UQPQ.
159. Pres. Donald J. Trump et al., Press Briefing (Mar. 22, 2020), https://perma.cc/V56J-7CWW.
160. Id.
56 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
In fact, as the Congressional Research Service has noted, the authority to pri-
oritize contracts under Section 101 of the Act “is routinely employed by” the
Defense Department, which “includes a priority rating as a standard clause” in
virtually all eligible contracts and orders.
161
The Department estimates that it uses
the law approximately 300,000 times a year.
162
News outlets reported a more
plausible reason for the President’s reluctance: the Chamber of Commerce was
actively lobbying the administration not to use the law, arguing that it would
impose too much “red tape” on American businesses.
163
On March 27, with great fanfare, the president announced that his administra-
tion would use the DPA to require General Motors to produce ventilators.
164
General Motors had drawn the president’s ire in March of 2019, when it closed
down a manufacturing plant in Lordstown, Ohio, creating economic hardship in
an area of the country critical for the president’s reelection prospects. On the day
of the DPA announcement, the president tweeted, “General Motors MUST imme-
diately open their stupidly abandoned Lordstown plant in Ohio, or some other
plant, and START MAKING VENTILATORS, NOW!!!!!!”
165
It is unclear, how-
ever, how much practical impact, if any, the DPA had in this context; according
to the company, it already had been in talks to produce ventilators, and the con-
tract it ultimately signed was consistent with those negotiations.
166
On the same day as the General Motors announcement, the president delegated
his authority under Titles III and VII of the DPA to the Secretary of HHS.
167
Since then, the administration has used the DPA on a handful of occasions. These
uses have included requiring the prioritization of federal contracts for ventilators
to be delivered to the Strategic National Stockpile; direct investment under Title
III to increase the domestic production capacity of respirators and testing swabs;
and the levying of criminal charges in two cases for hoarding designated
goods.
168
161. MICHAEL H. CECIRE &HEIDI M. PETERS,CONG.RESEARCH SERV. R43767, THE DEFENSE
PRODUCTION ACT OF 1950: HISTORY,AUTHORITIES, AND CONSIDERATIONS FOR CONGRESS 8 (2020),
https://perma.cc/GM99-GK5W.
162. See Zolan Kanno-Youngs & Ana Swanson, Wartime Production Law Has Been Used Routinely,
but Not with Coronavirus, N.Y. T
IMES (Mar. 31, 2020), https://perma.cc/7GGQ-R6MC.
163. David E. Sanger, Ana Swanson & Maggie Haberman, Trump Bets Business Will Answer Call to
Fight Virus, but Strategy Bewilders Firms, N.Y. T
IMES (Mar. 22, 2020), https://perma.cc/AUZ9-HPGC.
164. See Memorandum from Pres. Donald J. Trump on Order Under the Def. Production Act
Regarding Gen. Motors Co. to the Sec’y of Health & Human Services (Mar. 27, 2020), https://perma.cc/
8YJM-56TR.
165. W.J. Hennigan, Inside Trump’s Coronavirus Theatrics on War Powers, Ventilators and GM,
T
IME (Mar. 31, 2020), https://perma.cc/7F4J-N3AQ.
166. See Breana Noble et al., Trump Orders GM to Make Ventilators for the Government,D
ETROIT
NEWS (Mar. 22, 2020, 8:31 PM), https://perma.cc/28MW-FDAC.
167. See Exec. Order No. 13,911, 85 Fed. Reg. 18,403 (Mar. 27, 2016).
168. See M
ICHAEL H. CECIRE &HEIDI M. PETERS,CONG.RESEARCH SERV. IN11337, THE DEFENSE
PRODUCTION ACT (DPA) AND THE COVID-19 PANDEMIC:RECENT DEVELOPMENTS AND POLICY
CONSIDERATIONS (2020); Dylan Smith, The 1st COVID-19 Prosecutions Under Defense Production Act,
L
AW 360 BLOG (May 6, 2020, 5:07 PM), https://perma.cc/8FJY-47ZH.
2020] EMERGENCY POWERS,REAL AND IMAGINED 57
Few observers, however, would characterize the president’s use of the statute
as aggressive. By early June, the Defense Department had obligated only $167
million of the $1 billion Congress made available under the CARES Act for
DPA-related spending;
169
moreover, many of those contracts were for items
seemingly unrelated to COVID-19.
170
Lawmakers have continued to complain
that the president is underusing the DPA.
171
And at the time of this writing, in
early July, health care providers continue to face critical shortages in needed
equipment.
172
In short, those who had hoped that the president would use the
DPA to create a mass mobilization of domestic production resources—one that
would be sufficient to meet ongoing needs—have been disappointed.
C
ONCLUSION
Although states are generally at the forefront of managing public health crises,
the president has several emergency and pseudo-emergency powers at his dis-
posal to assist in the response to COVID-19. All of these have been delegated to
him by Congress, as there are no explicit or inherent constitutional authorities
accorded to the president to deal with pandemics. The only such powers that the
president has exercised vigorously, however, are the authorities that allow him to
restrict immigration. He has made unprecedented use of these powers, often to
pursue what appear to be longstanding policy goals that are unrelated to public
health. Although he has threatened to use what he calls his “total” authority as
president of the United States to impose multi-state quarantines and to override
governors’ decisions on state shut-downs, he has pulled back from these threats.
The most remarkable feature of the president’s approach has been his tardy
and often tepid use of those emergency and pseudo-emergency powers that hold
the most promise for alleviating the current crisis. At every stage, our national
response to COVID-19 has been hampered by a lack of available testing, testing
equipment, personal protective equipment, ventilators, and other medical sup-
plies. The president could have attacked this problem early on with a strategic
combination of authorities triggered by the Public Health Service Act, the
Federal Food, Drug, and Cosmetic Act, the Stafford Act, the Social Security Act,
the National Emergencies Act, and the Defense Production Act. Instead, the
administration was slow to use these authorities—in some cases, it appears,
169. See Joe Gould, Pentagon Taps $688 Million in Coronavirus Aid for Defense Industry,DEF.
N
EWS (June 2, 2020), https://perma.cc/JCA7-QXQ4.
170. See Aaron Gregg & Erica Werner, Pentagon’s Coronavirus Plan Includes Millions for Missile
Tubes and Body Armor,W
ASH.POST (June 4, 2020, 2:00 PM), https://perma.cc/LEW8-9E8U; DOD
Announces Defense Production Act Title 3 COVID-19 Projects to Support Space Defense Industrial
Base,S
EMICONDUCTOR TODAY (June 2, 2020), https://perma.cc/S2RB-HPRB.
171. See Schatz To Trump: Fully Invoke Defense Production Act,B
IG ISLAND VIDEO NEWS (May 15,
2020, 8:38 AM), https://perma.cc/4U2X-E7AR.
172. See, e.g., Dinah Voyles Pulver et al., Despite Warnings, the US Wasn’t Prepared with Masks for
Coronavirus. Now It’s Too Late., USA T
ODAY (July 2, 2020, 10:11 AM), https://perma.cc/2MXZ-
5NWY.
58 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:27
because of political concerns—and it still has not maximized the benefit they
could be providing.
The use of emergency powers is discretionary by nature, and it would be a mis-
take to change that. Abuse of discretion, however, comes in many different forms.
It is a clear abuse of emergency powers to deploy them for political gain where
no emergency exists. In his response to COVID-19, President Trump may have
illuminated a different type of abuse that few were expecting to see from him: the
politically-motivated failure to deploy emergency powers in a genuine crisis.
2020] E
MERGENCY POWERS,REAL AND IMAGINED 59
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