Over the past two months, there have been a number of declarations issued related to the COVID-19 response in the United States. There has also been persistent confusion related to these different declarations and what their implications are for the response. Many of these declarations have similar names, have been made public in confusing and conflicting ways, and are not well understood by the public.
I’ll briefly go through the key declarations that have been made in an effort to offer clarity. This is based on a thread I wrote on Twitter. I’ll explain the various declaration options and then explain how they have been used in the context of COVID-19.
There are three key Acts that are in play related to the COVID response at the federal level.
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 but Health and Human Services (HHS) does. As such, HHS is supposed to be the lead federal agency in a public health emergency, not FEMA. Through HHS a “public health emergency” can be declared which opens up federal resources to help and activates other federal agencies as needed to support the effort of HHS.
The National Emergencies Act
The National Emergencies Act (NEA) allows a president to declare a “national emergency” at his discretion. There are few limits here and the definition of “emergency” has not been fully clarified. It gives the president access to laws, powers, and funds. For a number of reasons, NEA has always been a point of significant controversy and concern. The anxiety has been amplified given this administration's history, specifically in how this was used related to the border wall.
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.
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. When there’s a flood or a tornado the usual process is that the governor of the affected 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) from the White House.
FEMA works with the state to make their case. There is no stringent formula for what qualifies as a disaster – there’s precedent, guidelines, and political factors. FEMA brings their recommendation to the President who says “yes” or “no”. States often want a PDD because it comes with money. Disasters are expensive, obviously. A declaration is also important because it opens up the resources of the federal government. I wrote about this for VOX a bit during Hurricane Harvey in 2017. (If you read that article do keep in mind that pandemics aren’t like a hurricane. We need the president to do more than just give a PDD this time.) The process I’ve described here is Section 501(a) of 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.) Although the Stafford Act does not explicitly list a virus as being a type of disaster that it covers the author of the Stafford Act, Tom Ridge wrote a piece arguing that yes, of course, this is an appropriate use of a disaster declaration.
There was precedent for the Stafford Act being used for a virus. New York and New Jersey received declarations for West Nile Virus several years ago. 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.
Alright, history lesson over. What’s going on now with COVID-19?
The COVID-19 Declaration Timeline
COVID-19 now has all three declarations described above 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. HHS for weeks was the lead agency under that declaration. On March 13th, a month and a half later, two additional declarations were made.
First, the President Declared a National Emergency through the NEA. This was straightforward.
Second, the President signed an emergency declaration through the Stafford Act. Importantly, he didn’t use the usual PDD process I described above (section 501(a)) but instead used Section 501(b): “Certain Emergencies Involving Federal Primary Responsibility”. The Stafford Act has two types of declarations – an emergency declaration and a major disaster declaration. On March 13th the president signed an emergency declaration, not disaster declarations.
At the time, despite the emergency declaration through the Stafford Act, FEMA was still a supporting agency to HHS. The emergency declaration just freed up more of FEMA’s resources to be used across various states/ territories.
Throughout this time myself, and others in emergency management, pointed out the glaring absence of one final type of declaration – major disaster declarations issued through the authority of the Stafford Act (and explained at the beginning of this post).
On March 19th the President announced that FEMA would be the agency in charge of coordinating the federal response.
The first Presidential Disaster Declaration for a state was approved for New York on March 20th. This was the first declaration through the Stafford Act as explained above (501(a)). This declaration set a precedent for the rest of states/ territories that are currently in the process of request a major disaster declaration. Yes, a major disaster declaration is appropriate for this situation as everyone from me to Tom Ridge argued.
It is important to know that there are different types of aid associated with these major disaster declarations. There are Public Assistant programs (PA) and Individual Assistant programs (IA).
The state of New York got some PA and some IA but not all as they requested. The PA funding covers “category B” which will help to reimburse the state and nonprofits for emergency efforts including things like buying food and water and funding emergency operations. The IA funding is related to Crisis Counseling which is, of course, needed.
Still, I would argue more could be done under IA. In fact, given the inadequacy in the bill passed by Congress on March 27th, there will continue to be unmet needs across the country. The nonprofit sector is struggling. This assistance will have to come from the federal government and these programs funded through FEMA could be apart of that solution.
This is changing every day but as of the morning of March 27th there were 12 sates that had been approved for a major disaster declaration and several more with open requests. Soon every state and territory will be granted one.
Interestingly on March 26th Iowa and North Carolina were granted major disaster declarations and approved for PA Category B but were, as of this writing, still waiting to hear about IA approval, even crisis counseling, which multiple other states have received. This is all to say that this is still an unfolding situation. The way the Stafford Act is written requires a declaration for each state or territory to be issued individually at the request of the governor and approval of the President.
These declarations are important for three primary reasons: authority, resources, and to signal the urgency of a situation. 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 – it seems to usually be both. What I do know is that it has taken a staggering two months for these declarations to be rolled out and there are still 38 states to go. These declarations need to keep being requested and approved– fast. I’ve said this elsewhere repeatedly but it’s worth saying again: FEMA was not built for this. They do not have the capacity to meet every need across the country. They are an important part of the response though and the Stafford Act is a tool that can be used to help communities across the country.
Ending The Declarations
[Updated: February 11, 2023]
On January 30, 2023 President Biden informed Congress that he would be ending both the National Emergencies Declaration and the Public Health Emergency on May 11, 2023. FEMA later announced it would be setting an incident end date for all COVID declarations through the Stafford Act on the same date.
Of note, this is the longest disaster declaration in FEMA’s history with the agency spending $104 billion in aid.
The ending of the declarations have enormous implications for the remainder of the COVID response as funding, authorities, and other resources will now be extremely limited even as COVID is still a threat throughout the country.