Emergency Powers Test Run

Could emergency powers given to state and federal leaders to deal with the H1N1 virus lead to violations of American civil liberties? Conditions at the state level may be a test of how wisely government officials will use their emergency powers.

The Constitution Project and the University of Maryland Center for Health and Homeland Security (CHHS) recently convened a group of scholars to discuss “the civil liberty implications of the government’s response to the H1N1” pandemic.

One panelist, Boston University Professor Wendy Mariner expressed her concern that emergency laws meant to deal with epidemics that step outside the law merely define a new legal norm. “Now, we’ll always face the risk of epidemics just like we always face the risk of terrorist attacks right now, I guess, and if epidemics are assumed to be emergencies, then we will always be governed by emergency laws,” she said. “So it’s especially important to look at what the laws are so that we don’t undermine fundamental human rights.”

She argues that “Emergencies are not really defined by a disease, they’re defined by the lack of capacity to respond, the lack of capacity to mitigate serious illness and death. Emergencies really only arise when something overwhelms our routine capabilities.”

Instead of legislating for emergencies, it would be better to focus on supply-side issues like developing “robust medical systems” and “robust public health systems,” she said, outlining two types of law helpful to medical emergencies:

1) “laws that clarify and streamline cross-jurisdictional relationships” and

2) “laws that actually develop and provide for care [and] services and products.”

Michael Greenberg, Director of CHHS, expressed his apprehension over the emergency powers given to governors, especially Maryland Governor Martin O’Malley.  “When you look at the statute, state by state, while they aren’t well-defined, the powers that are given to governors and often to the chief executives of localities, are truly extraordinary,” he said. “They virtually can constitute martial law and we have done a lot of work with the Maryland Courts to provide them with advice on how to deal with this, with the Maryland state Attorney General, the Maryland Health Department, and when we recount the broad powers that the government has…the judges on our highest court were rather taken back,” he said.

Some examples given by Prof. Greenberger were Governor O’Malley’s ability to control the police, seize medication, order hospitals to “reorient” their practices, quarantine, and “contravene any law” which contradicts his efforts to “respond to the cause of the emergency.”

“By the way, in the spring the Maryland governor declared an emergency under every statute he could declare an emergency under,” said Professor Greenberger, continuing, “but embedded within his authority is the authority to contravene any law that interferes with the governor’s ability to respond to the cause of the emergency, and that was truly an eye-opening measure to our judges who were readying themselves for dealing with these issues.”

President Obama declared a national state of emergency due to H1N1 on October 23rd. However, this was not because the Swine flu poses an immediate threat, but because the emergency response plans for this pandemic “technically fall outside the statutory limitations,” said Greenberger. He argued the President took “took absolutely the right steps” by declaring an emergency but that it would have been better to make it “clear that this was invoking remedial steps [of] a nondramatic nature. This was not the declaration of martial law.”

In 1918 and 1919 the Swine Flu caused over 670,000 deaths in the American “population of a 105 million,” said Dr. Marita Mike, Health Director at CHHS. (The U.S. currently has a population of around 304 million).  “Today we know a lot more” than in 1918 and 1919, she said, later adding that “We have vaccines available and we’re able to turn around and produce a vaccine to a known virus in six to nine months—no small feat.”

The U.S. continues to face ongoing shortages of H1N1 vaccine around the country.

Bethany Stotts is a staff writer at Accuracy in Academia.