Thread by @SamLMontano

There is *widespread* confusion about the multiple declarations that have been made related to COVID-19.

Luckily you happen to have found someone who teaches the Legal & Political Foundations of Emergency Management to explain!

(Disclaimer: There’s so much information flying around that something may change or I may have missed something. I’m also trying to lessen the confusion here so I’ve simplified as much as possible.)

There are three Acts that are at play here:
1.The Public Health Service Act
2.The National Emergencies Act
3.The Stafford Act

~The Public Health Service Act~

Usually disasters fall under the Stafford Act (we’ll get to that in a minute) and are coordinated by the Federal Emergency Management Agency (FEMA) BUT public health emergencies are different.

The thinking is that they require specific expertise and technical resources that FEMA doesn’t have so Health and Human Services (HHS) fills in as the lead agency. Through HHS a “public health emergency” can be declared which opens up federal resources to help.

~The National Emergencies Act~

This allows a president to declare a “national emergency” at his discretion. There are few limits here and the definition of “emergency” has not been clarified. It gives the president access to laws, powers, and funds.

There is precedent for using this Act in a pandemic – President Obama used it during H1N1 in 2009.

You’ll see it listed here among this list of other national emergencies:
brennancenter.org/sites/default/…

This Act is a point of significant controversy and concern. It’s important to know that it always has been although the anxiety seems to have been amplified given this administration's history – specifically how this was used related to the border wall.
theatlantic.com/magazine/archi…

~The Stafford Act ~

You know when a bad hurricane happens and the President says “I’ve declared a disaster”? That’s the Stafford Act.

It is how we handle the vast majority of disasters. It gives FEMA it’s authority & is the core of our nation’s emergency management policy.

Here’s what usually happens:

When there is a disaster the governor of the state/territory declares an emergency. This opens up state resources to help local jurisdictions. If and when the state needs additional help they may request a Presidential Disaster Declaration (PDD).

FEMA works with the state to make their case. There is NO set formula for what qualifies as a disaster – there’s precedent, guidelines, and, yes, political factors. FEMA brings their recommendation to the President who says yes or no.

States usually want a PDD because, $$$.

A declaration is important because it opens up the resources of the fed gov't.


I wrote about this during Harvey: vox.com/2017/8/26/1620…

(If you read the article just note: pandemics aren’t like a hurricane. Need more than just a PDD this time.)

To recap: local governments are overwhelmed, the state is overwhelmed, the federal government helps.

This process is Section 501(a) in the Stafford Act (this will be important later).

As with the National Emergency Act there is some vague language in the Stafford Act. There are long standing issues with the definitions we use for terms like “emergency”, “disaster”, “catastrophe”.

If you watched House of Cards you’ll remember this:

Vague definitions are usually bad BUT it also can be a good thing. One of the most important things in emergency management is FLEXIBILITY and SPEED. We don’t always know *exactly* what is going to happen and we need to be able to move quickly to react appropriately.

In fact, the power of emergency management used to lie with Congress. A very intentional decision was made to move that power to the White House because they could, in theory, act more quickly than Congress.

There is precedent for the Stafford Act being used for a virus – West Nile Virus.

H1N1 was never declared through the Stafford Act BUT there was a plan in place for doing so if it had reached the point where the Obama administration felt it necessary:
fema.gov/media-library-…

OKAY. History lesson over.
What’s going on now with COVID-19?

COVID-19 now has all three declarations because it’s a greedy little virus and also because the federal government did not act quickly enough or appropriately enough in the very early days of response.

On January 31st HHS declared a public health emergency and HHS has been (and will continue to be) the lead agency under that declaration. This piece is relatively simple.

Yesterday (March 13th) brought two new declarations and also a whole lot of confusion.

First, the President Declared a National Emergency through **The National Emergencies Act**
whitehouse.gov/presidential-a…

Second, the President signs an emergency declaration through the Stafford Act BUT he didn’t use the usual PDD process I described above (section 501(a)).

Instead, they used Section 501(b): “Certain Emergencies Involving Federal Primary Responsibility”

Two clarifications.

1. An emergency declaration and a disaster declaration are different.
More here: fas.org/sgp/crs/misc/R…

2. FEMA is still a supporting agency to HHS – this just frees up some of FEMA’s resources to also be used.
fema.gov/news-release/2…

There are three reasons these declarations are important: authority, resources, and to emphasize the urgency and seriousness of a situation.

I’ve simplified things here because, twitter.

It’s not just about making these declarations but how they are implemented.

There are still a lot of questions that need to be answered.

This administration makes it hard to know if some decisions are made out of ignorance or agenda – seems to usually be both.

Regardless of this particular administration, there are MUCH larger questions about how this declaration process is even supposed to work in a situation like this & how our EM system works generally.

(Which is why I'm always on here going on about emergency management reform!)

Anyway.

I have to go and record a lecture for my students now because I taught them about 501(a) earlier in the semester but didn't teach them 501(b) so... whoops! Poor things must be very confused.

Also, follow @disaster_lawyer for more on this whole declaration process.