Emergency powers and the pandemic: Reflecting on state legislative reforms and the future of public health response

Abstract

The first 2 years of combatting the COVID-19 pandemic necessitated an unprecedented use of emergency powers. States responded with an equally unprecedented flurry of legislative changes to the legal underpinnings of emergency response and public health authorities. In this article, we provide a brief background on the framework and use of governors and state health officials' emergency powers. We then analyze several key themes, including both the enhancement and restriction of powers, emerging from emergency management and public health legislation introduced in state and territorial legislatures. During the 2020 and 2021 state and territorial legislative sessions, we tracked legislation related to the emergency powers of governors and state health officials. Legislators introduced hundreds of bills impacting these powers, some enhancing and others restricting emergency powers. Enhancements included increasing vaccine access and expanding the pool of eligible medical professions that could administer vaccinations, strengthening public health investigation and enforcement authority for state agencies, and preclusion of local orders by orders at the state level. Restrictions included establishing oversight mechanisms for executive actions, limits on the duration of the emergency, limiting the scope of emergency powers allowed during a declared emergency, and other restraints. By describing these legislative trends, we hope to inform governors, state health officials, policymakers, and emergency managers about how changes in the law may impact future public health and emergency response capabilities. Understanding this new legal landscape is critical to effectively preparing for future threats.