On Wednesday, April 12, 2023 the National Governors Association hosted its monthly briefing for Governors’ legal counsel. The briefing consisted of a joint webinar hosted by NGA and the Association of State and Territorial Health Officials (ASTHO) and discussed the Future of Emergency Response Capabilities in the New Legal Landscape.
With partnership and support from the Centers of Disease Control and Prevention (CDC), NGA and ASTHO recently published an article in the Journal of Emergency Management describing changes legislatures have made to state and territorial public health and emergency powers. During 2020 and 2021 legislative sessions, state and territorial legislators introduced hundreds of bills impacting emergency powers—some enhancing and others restricting such authorities.
The webinar highlighted legislative trends and discussed how changes in the law may impact future public health and emergency response capabilities. Legislative 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. Legislative 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.
In addition to legislative changes, the webinar also discussed Governor-involved litigation during the COVID-19 pandemic. At least 400 lawsuits were brought in over 50 states and territories challenging executive actions taken by Governors or state officials in response to COVID-19. Generally, most state and federal courts affirmed Governor’s emergency authorities, particularly in the first 18 months of the pandemic. However, some courts have outlined specific limitations on such powers within the context of COVID-19, particularly in cases involving religious liberty and scope of authority. Understanding this new legal landscape is critical to effectively preparing for future threats to the public’s safety and health.
NGA holds monthly briefings for Governors’ legal counsel. Please reach out to Lauren Dedon (Ldedon@nga.org) for additional information.