Examining Executive Authority During Public Health Emergencies: Challenges to COVID-19 Executive Orders & Implications for Future Public Health Policy

Two months after the first cases of COVID-19 were detected in Wuhan, China, state governments faced the threat of an unprecedented public health emergency caused by an unknown pathogen, and uncertainty about the efficacy of containment measures. After the WHO announced that COVID-19 had become a pandemic, the Trump Administration declared a National Emergency and issued a travel ban on March 13, 2020. Subsequently, counties in New York and Washington began issuing stay-at-home orders, followed by California’s state wide order. Deriving authority from state emergency management and public health statutes, governors have relied heavily on executive orders and emergency declarations to contain the spread of the virus. As the pandemic persists, both private parties and state legislators have become increasingly hostile to the prolonged use and renewal of general emergency powers. The long-term nature of many of these executive orders has led to controversies about the extent to which governors can act unilaterally to mandate public health measures and restrict personal freedoms, and legal challenges have been inundating the courts for over a year. This paper focuses specifically on challenges to the exercise of executive power (1) where state constitutions do not specify the scope of executive powers or define legislative checks during a public health emergency; (2) where state disaster management statutes do not indicate whether a “disaster” includes a public health emergency or pandemic; and (3) where state governors face politicized resistance to their emergency authority and attacks from their own legislators. In looking at the implications of these challenges, this paper does not suggest that judicial review of executive power should be limited or suspended during a public health emergency. Nor does it suggest that amending statutory frameworks for emergency response is an inherent threat to executive authority. Instead, it explores opportunities to strengthen current constitutional and statutory frameworks and prevent the over-politicization of future public health response