The Law of Emergencies [2 ed.] 9780128042755

Table of contents :
Front-matter_2018_The-Law-of-Emergencies
Copyright_2018_The-Law-of-Emergencies
Foreword-to-the-First-Edition_2018_The-Law-of-Emergencies
Foreword to the First Edition
Preface-to-Second-Edition_2018_The-Law-of-Emergencies
Preface to Second Edition
1---Our-Constitutional-Structure-of-Government_2018_The-Law-of-Emergencies
1 Our Constitutional Structure of Government
Introduction
The Structure of the Constitution
Separation of Powers
Federalism
The World of State Constitutions
Federal–State Conflict
Judicial Review
Summary
Important Terms
Review Questions
2---The-Powers-of-the-President-in-an-Emergency_2018_The-Law-of-Emergencies
2
The Powers of the President in an Emergency
Introduction
The Sources of Presidential Power
The Constitutional Standard for Exercise of Article II Powers
Foreign Relations
Deployment of Military Force
The Debate Over Presidential Power after September 11
Should the AUMF be Repealed?
Executive Orders and Presidential Directives
Summary
Important Terms
Review Questions
3---The-Reach-of-Congressional-Power_2018_The-Law-of-Emergencies
3
The Reach of Congressional Power
Introduction
The Scope and Structure of Congressional Power
The Role of Congress in Emergencies
A Focus on France
“A Supermajoritarian Escalator” for the United States?
The Legislative and Budgetary Process
Nonbudget Bills
Budget Bills
Congressional Power under the Spending Clause and Federal Grants to States
Summary
Important Terms
Review Questions
4---The-Judiciary_2018_The-Law-of-Emergencies
4 The Judiciary
Introduction
Federal Courts: Structure, Geography, and Jurisdiction
State Courts: Structure and Jurisdiction
Intersystem Dynamics
Case Law, Precedent, and Stare Decisis
A Hypothetical Case
Summary
Important Terms
Review Questions
5---The-Domestic-Use-of-Military-Troops_2018_The-Law-of-Emergencies
5
The Domestic Use of Military Troops
Introduction
History
The Scope of the PCA
The Wounded Knee Standoff
The Dual Role of the National Guard
Weapons of Mass Destruction
The Insurrection Act
Martial Law
Review
Important Terms
Review Questions
6---Federal-Agencies_2018_The-Law-of-Emergencies
6
Federal Agencies
Introduction
Overview
DHS as Case Study
The Powers of Federal Agencies
Coordination of Agencies Within the Executive Branch
The Process of Rule-Making
The APA in Action
Grant Administration and Review
Summary
Important Terms
Review Questions
7---State-and-Local-Governments_2018_The-Law-of-Emergencies
7 State and Local Governments
Introduction
Separation of Powers in an Emergency: The Governor and the Legislature
Separation of Powers in an Emergency: The Governor and the Courts
State Government v. Local Government in an Emergency
Statutory Grant of Municipal Authority
State-to-State Assistance Agreements
Maryland as a Case Study
Summary
Important Terms
Review Questions
8---Response-Coordination-and-Incident-Command-Sys_2018_The-Law-of-Emergenci
8
Response Coordination and Incident Command Systems
Introduction
The September 11 Response
Developing a Comprehensive Response Plan
The National Response Framework (NRF)
On the Ground
Emergency at the Airport
Is the ICS a Form of Law?
Summary
Important Terms
Review Questions
9---The-Constitution-and-Individual-Rights_2018_The-Law-of-Emergencies
9 The Constitution and Individual Rights
Introduction
The Concept of Negative Liberty
Freedom of Expression
Substantive Due Process: Liberty
Comparing the Standards
Equal Protection of the Law
The Three Equal Protection Tests
Discrimination Against Non-Citizens: A Test of the Tests
Procedural Due Process
The Writ of Habeas Corpus
Summary
Important Terms
Review Questions
10---Statutory-Protections-for-Individual-Rights_2018_The-Law-of-Emergencies
10
Statutory Protections for Individual Rights
The Back Story
The Adoption of Title VI
The Scope of Title VI
The Rehabilitation Act and the Americans with Disabilities Act
Administrative Enforcement by DHS
The Law in Action: Discrimination on the Basis of National Origin and Language
Persons with Limited English Proficiency (LEP)
The Law in Action: Discrimination Based on Disability
Summary
Important Terms
Review Questions
11---Stafford-Act-Assistance-to-Communities_2018_The-Law-of-Emergencies
11
Stafford Act Assistance to Communities
Introduction
History
Definitions
When an “Emergency” Is Not a “Disaster” or Vice Versa
The Declaration Process
Overview of Assistance to Communities
Direct Federal Assistance
Public Assistance
Hazard Mitigation Assistance
Fire Management Assistance
Ban on Duplicative Benefits
Prosecution and Recoupment
Appeals
Summary
Important Terms
Review Questions
12---Stafford-Act-Assistance-for-Individuals_2018_The-Law-of-Emergencies
12 Stafford Act Assistance for Individuals
Introduction
Overview
Stafford Act Programs
Forms of Housing-Related Assistance
Joint or Non-Stafford Act Benefit Programs
Challenging Benefits Decisions
Summary
Important Terms
Review Questions
13---Public-Health-Law-I--Complications-of-Federal_2018_The-Law-of-Emergenci
13
Public Health Law I: Complications of Federalism
Introduction
State Public Health Law
Early Federal Public Health Approaches
Federal Public Health Law Today
Regulations for Travelers
Interstate and International Regulations
Travel Between States
Apprehension and Detention (70 C.F.R. §70.6)
Medical Examination (70 C.F.R. 12)
Order of Quarantine, Isolation or Conditional Release (70 C.F.R. 14)
Conditional Release and Travel Permits
Conditions of Confinement or Conditional Release
Mandatory Reassessment (70 C.F.R. 15)
Medical Review (70 C.F.R. 16)
Penalties (70 C.F.R. 18)
Judicial Review
Travel to the United States from Another Country
Apprehension and Detention (71 C.F.R. §32(a))
Other Phases of the Process
Do Not Board List
Summary
Important Terms
Review Questions
14---Public-Health-Law-II--Contemporary-Threats_2018_The-Law-of-Emergencies
14 Public Health Law II: Contemporary Threats
Introduction
Emergency Health Powers Laws
Definitions of Bioterrorism
The Anthrax Attacks of 2001
Declaring a Public Health Emergency
The Powers of Government During an Emergency
Emerging Infectious Diseases
The First Post 9/11 EID: SARS
The SARS Outbreak of 2003: Timeline
Rationing Medications
Contemporary Mass Quarantine
Travel Restrictions
Ebola
First Responses
Ebola Reaches the United States
The Infected Doctor and the Uninfected Nurse
CDC Changes Its Recommendations
Federalism, for Better and Worse
Summary
Important Terms
Review Questions
15---Hospitals-and-Workplaces-in-Health-Emergenci_2018_The-Law-of-Emergencie
15 Hospitals and Workplaces in Health Emergencies
Introduction
The Economic Dimensions of Emergencies
Emergency Rooms in an Emergency
Workplace Safety
Postal Workers and the Anthrax Attacks
Workplaces and Mass Quarantine
Job Protection
Income Replacement
Summary
Important Terms
Review Questions
16---The-Law-of-Search-and-Seizure_2018_The-Law-of-Emergencies
16
The Law of Search and Seizure
Introduction
The Fourth Amendment
Reasonable Searches
Community Caretaking
Factors That Trigger Community Caretaking or Emergency Exceptions
Administrative Searches
Special Needs
The Fifth Amendment and the Takings Clause
Eminent Domain v. the Police Power
Public Health and Takings
Takings and Emergencies—Statutory Response
Takings, Emergencies, and Public Policy
Summary
Important Terms
Review Questions
17---Evacuation_2018_The-Law-of-Emergencies
17 Evacuation
Introduction
Fundamentals: Legal Authority
Police Power
Judgment Calls
Statutory Authority of State Officials
Is “Mandatory” a Myth?
Duty as well as Discretion
Other Law and Policy Issues
Summary
Important Terms
Review Questions
18---A-Dirty-Bomb-Explodes-in-Washington--DC_2018_The-Law-of-Emergencies
18
A Dirty Bomb Explodes in Washington, DC
Introduction
Background Briefing: Radiological Dispersion Bombs (RDB)
The Scenario Unfolds
Postscript: The Movie Version
19---Sovereign-Immunity-and-Government-Liability_2018_The-Law-of-Emergencies
19
Sovereign Immunity and Government Liability
Introduction
The Sovereign Immunity Defense
Statutory Waivers of Sovereign Immunity
Negligence
Intentional Torts and Active Endangerment
The Discretionary Function Exception
The Berkovitz Case
Hurricane Katrina and Liability for Personal Harm
Hurricane Katrina and Liability for Property Damage
Summary
Important Terms
Review Questions
20---Liability-Issues-for-Individuals_2018_The-Law-of-Emergencies
20
Liability Issues for Individuals
Introduction
Government Responsibility for the Acts of Its Employees
The Extension of Government Responsibility Beyond Regular Employees
The Federal Volunteer Protection Act
State Volunteer Protection Laws
Liability Issues for Health Practitioners
Licensure and Emergency Mobilization for Health Practitioners
Summary
Important Terms
Review Questions
Appendix-1---U-S--Constitution--Excerpts-_2018_The-Law-of-Emergencies
1 U.S. Constitution (Excerpts)
Article I
Section 1
Section 2
Section 3
Section 5
Section 6
Section 7
Section 8
Section 9
Section 10
Article II
Section 1
Section 2
Section 3
Section 4
Article III
Section 1
Section 2
Amendments
First Amendment
Second Amendment
Third Amendment
Fourth Amendment
Fifth Amendment
Sixth Amendment
Seventh Amendment
Eighth Amendment
Ninth Amendment
Tenth Amendment
Fourteenth Amendment
Section 1
Section 2
Section 3
Section 4
Section 5
Appendix-2---Stafford-Act--Excerpts-_2018_The-Law-of-Emergencies
2 Stafford Act (Excerpts)
Glossary-of-Legal-and-Legislative-Terms-----Adapted-from-U-_2018_The-Law-of-
Glossary of Legal and Legislative Terms*
References_2018_The-Law-of-Emergencies
Judicial Decisions
Index_2018_The-Law-of-Emergencies
Index

Citation preview

The Law of Emergencies

The Law of Emergencies

Public Health and Disaster Management Second Edition Nan D. Hunter, Professor of Law Georgetown Law 600 New Jersey Ave NW Washington, DC 20001

Butterworth-Heinemann is an imprint of Elsevier The Boulevard, Langford Lane, Kidlington, Oxford OX5 1GB, United Kingdom 50 Hampshire Street, 5th Floor, Cambridge, MA 02139, United States Copyright © 2018 Elsevier Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. Details on how to seek permission, further information about the Publisher’s permissions policies and our arrangements with organizations such as the Copyright Clearance Center and the Copyright Licensing Agency, can be found at our website: www.elsevier.com/permissions. This book and the individual contributions contained in it are protected under copyright by the Publisher (other than as may be noted herein). Notices Knowledge and best practice in this field are constantly changing. As new research and experience broaden our understanding, changes in research methods, professional practices, or medical treatment may become necessary. Practitioners and researchers must always rely on their own experience and knowledge in evaluating and using any information, methods, compounds, or experiments described herein. In using such information or methods they should be mindful of their own safety and the safety of others, including parties for whom they have a professional responsibility. To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors, assume any liability for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions, or ideas contained in the material herein. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book is available from the Library of Congress ISBN: 978-0-12-804275-5 For Information on all Butterworth-Heinemann publications visit our website at https://www.elsevier.com/books-and-journals

Publisher: Katey Birtcher Acquisition Editor: Stephen Merken Developmental Editor: Nate McFadden Production Project Manager: Sujatha Thirugnana Sambandam Cover Designer: Greg Harris Typeset by MPS Limited, Chennai, India

Foreword to the First Edition On any given day across our nation, an individual, a family, a community, a state, or a region is liable to experience a disaster. In this context, we use the term liable to mean that there is a probability or a likelihood of a disaster. If we apply a legal perspective, that gives the word liable a completely different meaning. Disasters and emergencies are human events that cause individuals and institutions to respond, react, and eventually recover, but they also involve complex legal issues that reflect the very essence of our democratic government: separation of powers, individual liberties, states’ rights versus federal responsibilities, obligations on the private sector, and initiatives by individuals who voluntarily act as good Samaritans. Real-life examples of the confluence of legal and personal issues abound. When a Category 5 hurricane is heading toward the mainland of Florida, who has the authority to tell citizens that they must evacuate? How do evacuated citizens know that there will be resources made available to rebuild when they return to find a devastated community? In the context of natural hazards, there are established legal precedents that guide and facilitate governmental and community action although they are not well understood. In the post–September 11 environment, concerns over possible bioterrorism incidents have raised concerns over the responsibility and authority for policies almost unknown in recent decades, such as mass inoculations and quarantines. As recently as April 2009, the potential for a worldwide pandemic was made evident by the outbreak of swine flu that originated in Mexico but was quickly carried to countries across the globe. The Mexican government responded by closing schools and limiting public gatherings to minimize the spread of the flu. Other countries where cases were discovered took different types of action, and in some cases possibly overreacted, but what this event illustrated is that of all types of disasters short of nuclear war, in public health emergencies, the role of government and of its coercive powers remains both unclear and controversial. Understanding the legal framework under which the various levels of government and the private sector would operate in a public health emergency is of critical importance to all individuals, disciplines, and professions that would be impacted by a public health emergency. As Chief of Staff of the Federal Emergency Management Agency (FEMA), from 1994 to 2001, I was responsible for response and recovery in a myriad of disasters in over 3000 counties throughout the United States. These disasters included Hurricanes Floyd and Fran, the Oklahoma City bombing, the Northridge, California earthquake, the Midwest floods in 1993, and the repeat flood in 1995, hundreds of devastating tornadoes, ice storms, wild land fires and urban interface fires in California and Florida, hazardous materials incidents, and leaking from underground storage tanks. We successfully evacuated three million people on the East Coast during Hurricane Floyd. We relocated and then returned the entire population of Grand Forks, xv

xvi  Foreword to the First Edition

Minnesota after their devastating floods. We built temporary malls for businesses to relocate after the Northridge earthquake. All these actions were taken pursuant to an elaborate legal structure of statutes, regulations, and case law. However, throughout my tenure at FEMA, one of our biggest concerns was how we would manage a major public health emergency. Luckily for me, I was never faced with answering questions about what the role of FEMA would be in an unprecedented infectious disease epidemic, and whether and how the Stafford Act would be invoked. Those concerns have only intensified since I was at FEMA. Increased globalization and the potential threats from both bioterrorism and the nonmalicious spread of virulent strains of flu present enormous challenges to our governmental, emergency, and private sector systems. As evidenced by the H1N1 Mexican flu incident, it is critical to understand the legal, organizational, and statutory background, and issues that govern this new frontier of public health emergencies. In this volume, Professor Hunter has provided just that understanding. She has identified the critical players at the federal, state, local, and private sector levels, and the laws that govern their actions and limitations. This book provides a comprehensive discussion of federal and state law, and how these laws will be implemented in any kind of emergency. It also explores the contemporary public debates that arise when government must take extraordinary actions, as well as the implications for government liability and individual liability. These concepts and principles are illustrated and reinforced by the inclusion of two chapters that offer practical exercises in the form of pandemic flu and dirty bomb scenarios. To me, the most important aspect of this book is the approach and language the author used in writing this text. Professor Hunter has made it accessible to all students and disciplines responsible for or potentially impacted by a public health emergency or other kind of disaster. Yes, it is a legal volume, but it should be considered essential reading for public health officials, emergency managers, health care providers, federal, state, and local government administrators, students of public policy, and other interested individuals. In this book, Professor Hunter has removed the mystery and confusion that often surround an emergency by setting forth the legal responsibilities of government entities that are involved when disaster strikes and the legal rights of American citizens. I believe this book is essential reading for anyone who may be involved in emergency response. It will provoke thought, discussion, and most importantly, action to help enhance our capability as individuals, professionals, communities, and institutions to make a difference in the myriad of emergencies that we will face in the future. Jane Bullock Chief of Staff Federal Emergency Management Agency (1994–2001) Washington, DC United States

Preface to Second Edition The task of planning for, and responding to, emergencies and disasters is one of the most important, and challenging, tasks any government faces. Emergencies can take many forms—from power outages, to hurricanes, to terrorist attacks—and a government, particularly a local government, must be prepared for them to strike at almost any moment. Such preparedness requires considerable planning, resources to execute those plans, and a willingness to learn from experience and revise plans that do not sufficiently accomplish their goals. (U.S. District Court Judge Jesse Furman, 2013)

So far, the twenty-first century has not been kind. September 11 and Hurricane Katrina occurred less than four years apart. Albeit of very different sorts, both were disasters that left two great American cities dazed and attempting to recover from the sense of having been under attack. Seven years after Katrina, Hurricane Sandy devastated large portions of the densely populated northeastern United States. Two years after that, the most widespread outbreak of Ebola virus disease in history hit western Africa. It should therefore not be surprising that the ramifications of such emergencies for the legal system have multiplied. New statutes, new regulations, new lawsuits—all have resulted from the harms caused by these events and the efforts to prepare more effectively for the future. The academic literature on disaster law—virtually nonexistent when the first edition of this book was published—has blossomed. Historians have begun to study how our collective responses to disasters illustrate the fundamental roles of government in modern society. The increased frequency of disasters and emergencies and their growing impact on the legal system and, in turn, of the impact of the legal system on the actions of individuals, businesses, civic organizations, and governments all produce important lessons to be learned. One is that the training of professionals who understand the multiple dimensions of prevention and response—including the involvement of law—is growing in importance. As a consequence, the number of degree programs and classes in this field is increasing. Understanding the legal questions and challenges that arise after what is often a sudden, unforeseen event is critical for those who will lead public and private sector efforts at national, state, and local levels. Another lesson from the growing scope and importance of these legal issues is that the law of emergencies and disasters must be integrated into a broader knowledge base that encompasses a deep understanding of the fundamental institutions and functions of the U.S. legal system. It is no longer possible to grasp the operations of this field of law by trying to memorize a simple list of do’s and don’t’s. One needs a more organic understanding of our legal system, including such points as how the different branches and levels of American government work xvii

xviii  Preface to Second Edition

when an emergency or disaster occurs; how a huge agency like the Department of Homeland Security operates and what its functions are; and what are the Constitutional and statutory principles that will determine the allocation of powers in these situations. This book is designed to address both the broader and more particular aspects of emergency and disaster law. On a number of broad issues, such as Presidential or Congressional power, chapters focus on examples from situations involving emergencies of various sorts. Other chapters focus on the most important bodies of law at a more detailed level, such as the Stafford Act or public health emergency statutes. Throughout the book, emergency and disaster law is placed in the broader context of American lawmaking and enforcement. As appropriate for a growing field, this second edition has expanded coverage from that in the first edition. The basic structures and fundamental Constitutional principles that govern our legal system, illustrated primarily by emergency-related cases and statutes, comprise the five chapters in Part I. In Part II, the focus drills down to the law generated by the intermediary institutions with which citizens most frequently interact: state and local government law, regulatory guidance from federal and state agencies, and what is emerging as the customary law of Incident Command Systems. Part III flips the perspective from legal duties to the rights of individuals, both under the Constitution and pursuant to two statutes that directly affect every homeland security-related agency: the right to benefit from recovery efforts without discrimination based on language and the right of disabled persons to shelters and evacuation procedures that enable their participation. Parts IV, V, and VI examine the bodies of law most directly relevant to disaster assistance and management, public health emergencies, and the maintenance of public order. The final Part addresses the law allocating liability for harms to citizens during emergencies caused either by government or by individuals. Past students have found this book in its earlier incarnation to be lively and provocative. I hope that future readers enjoy it as well. Nan D. Hunter Washington, DC

1 Our Constitutional Structure of Government Introduction This chapter will introduce you to the basic components of American constitutional law with a focus on how the Constitution determines the structure of our government. Three fundamental concepts are central to the U.S. legal system: Separation of powers, the allocation of power among the three branches of government Federalism, the allocation of power between the federal and state governments ● Judicial review, the power of the courts to declare acts of both legislative and executive branches invalid as violations of the Constitution. ● ●

The Constitution creates the framework for how these concepts operate and how the three branches of government interact. This chapter will give you an overview of this structure, along with some of the history and context behind it, and some specific examples from Supreme Court decisions about the resolution of interbranch conflicts. Without an understanding of the Constitution, you cannot fully appreciate the workings of Congress, the Executive Branch, the judiciary or state governments.

The Structure of the Constitution We begin this book with the Constitution, which created the structure of our government and the process for various forms of lawmaking in the United States. Since its ratification in 1788, the Constitution has been the supreme law of our land; no law and no governmental action may violate its provisions. Understanding the constitutional structure of our government is essential to understanding the law of emergencies or any other area of law. The Constitution establishes a national government with three branches—legislative, executive, and judicial—and prescribes the respective powers of each. The powers of these branches are both fluid and fixed: the Constitution sets certain limits beyond which each branch may not reach, but allows the specific meaning of those limits to change over time and to be determined through a process of interaction and negotiation among the three branches. The separation of powers provides the framework for this process. While all three branches are bound to enforce and to uphold the Constitution, each fulfills a distinct role—the legislature (Congress) enacts statutes; the executive carries out laws through orders and regulations, and functions as the command center for policymaking; and the judiciary interprets both statutes and the terms of the Constitution itself through court decisions. The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00001-2 © 2018 Elsevier Inc. All rights reserved.

3

4  THE LAW OF EMERGENCIES

When we speak of “the law,” we refer to multiple types of legal authority, each associated primarily with one branch of the government and resulting from the legal process unique to that branch: statutes, regulations and executive orders, and case law. In addition to this horizontal allocation of power at the national level, i.e., among the three branches, the Constitution also provides for a vertical division of power between the national government and the state governments (Fig. 1-1). The term federalism refers to this vertical differentiation. The state level replicates the architecture of the federal government. Each state has its own constitution, and each state government includes three branches: legislative, executive, and judicial. A similar structure also often exists at the municipal level. The interaction between branches may occur in the context of litigation, when parties challenge the lawfulness of actions taken by Congress or the Executive Branch. In those situations, the Supreme Court has the final authority to rule on whether the actions are lawful. After such rulings, either the Congress or the Executive Branch or both may revisit the questions at issue in the litigation, seeking to formulate new laws or regulations that will pass muster under judicial review. And then the process of challenge and decision may begin again. The combined effect of the separation of powers, federalism, and judicial review is a system of checks and balances. The phrase “checks and balances” comes from the title of Federalist No. 51, which articulates the reasoning for the Constitution’s overall structure. (Note that the term “department” is used where today we would say “branch.”) …[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others… It may be a reflection on human nature, that such devices should be necessary to control

FIGURE 1-1  Structure and subsidiarity. The Constitution provides for a vertical division of power between the national government state, and local governments.

Chapter 1 l Our Constitutional Structure of Government  5

the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. The checks and balances system emerged as the culmination of the new nation’s creation of a democratic republic as a form of government. Although we associate those two words today with competing political parties, each has a distinct meaning and both are essential to understanding the U.S. system. “Democracy” signifies rule by the majority. “Republic” refers to a form of government in which democracy is limited by the designation of certain rights that cannot be abridged, even by a majority. The U.S. system is both democratic and republican as those terms are classically defined. In addition, the Constitution limits the powers of the majority and of each branch in carefully prescribed ways. Often the United States is described as a “constitutional democracy.” Lastly, it is a “representative” form of government, meaning that laws are enacted by elected members of the legislature, rather than by popular vote. During the War for Independence, the Continental Congress adopted the Articles of Confederation, an alliance among the 13 states. Had the Confederation continued, the historian Joseph Ellis has speculated, the United States might have evolved into something like the nations of Europe, with each state a separate sovereign in a cooperative structure roughly approximating the European Union of today. But revolutionary leaders such as George Washington, James Madison, and Andrew Hamilton came to believe that the confederation structure was unworkable. There was no mechanism for ensuring that the debts incurred during the war were paid, for example, including back pay to the soldiers who had fought in the Revolutionary Army. Even if the debts had been paid, there was no uniform currency; each state could and did issue its own money. Against this backdrop, the constitutional convention began in Philadelphia in 1787. The delegates adopted the Constitution and sent it to the states for ratification. The final state ratified in 1789, and the new charter, with a strengthened national government, took effect. During the first Congress, the first 10 amendments—called the Bill of Rights—were adopted to safeguard individual liberty and an important role for state governments. (See text of Constitution in Appendix 1.)

The Federalist Papers—a collection of essays written by Alexander Hamilton, James Madison, and John Jay—explain how some of the Framers understood the meaning of various provisions of the Constitution. The essays were published in 1788, during the period when the former colonies were debating whether to terminate the Articles of Confederation and strengthen the national government by adopting a new structure. The three authors published the essays in an effort to persuade their fellow citizens to ratify the Constitution.

6  THE LAW OF EMERGENCIES

Separation of Powers The first three Articles of the Constitution enumerate the powers and authorities of the different branches of the federal government. The Framers began with congressional power in Article I, addressed executive branch power in Article II, and established the contours of the federal judiciary in Article III. They wrote in broad strokes, leaving a great deal of room for interpretation as to how much power each branch would have vis-à-vis the others. In emergency situations, as we shall see, the vagueness in the Constitution’s language can be both essential and frustrating. In Article I, Section 8, the Constitution lists, or enumerates, the powers of Congress. In addition to the power to declare war, raise taxes, and provide for military appropriations, this section includes the powers “to provide for the common defense and general welfare of the United States,” “to regulate commerce among the states,” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Unless there is some basis in the Constitution for Congress to legislate on a particular matter, it lacks the power to do so. Although these clauses have been interpreted broadly, their scope is not limitless. For example, the small number of business activities that have no connection to interstate commerce are beyond the reach of Congress’ power to regulate through legislation. Article II sets out the powers of the President and the Executive Branch. It describes the President’s role as commander in chief and as the person who nominates judges, cabinet officers, and ambassadors. In addition, Section 3 declares that the President shall propose legislation to the Congress “as he shall judge necessary and expedient,” and “shall take care that the laws be faithfully executed.” As with Congress, these powers have been interpreted broadly, but are not limitless, as we shall see in the Youngstown case in Chapter 2. Article III establishes the Supreme Court and declares that Congress shall have the power to establish lower level federal courts. Congress set up two tiers of federal courts below the Supreme Court level: trial courts (called district courts) and courts of appeal. For our purposes, one of the most important aspects of the federal court system is a principle established in a critical case decided early in the history of the nation: judicial review. In the following case, the modern Supreme Court spells out how the separation of powers between Congress and the Executive Branch must function. In doing so, the Court engages in the judicial review of whether a law enacted by Congress is constitutional.

Bowsher v. Synar U.S. Supreme Court, 1986 Chief Justice Burger delivered the opinion of the court. The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 [the “Gramm-Rudman-Hollings Act”] violates the doctrine of separation of powers.

Chapter 1 l Our Constitutional Structure of Government  7

…The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a “maximum deficit amount” for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. These “automatic” reductions are accomplished through a rather complicated procedure, spelled out in § 251, the so-called “reporting provisions” of the Act. Each year, the Directors of the Office of Management and Budget (OMB) [an Executive Branch agency within the Office of the President] and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum targeted deficit amount for that fiscal year by more than a specified amount, the Directors of OMB and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure that the deficit does not exceed the maximum deficit amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General. The Comptroller General, after reviewing the Directors’ reports, then reports his conclusions to the President. The President in turn must issue a “sequestration” order mandating the spending reductions specified by the Comptroller General. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made… [Petitioner Bowsher is the current Comptroller General. Respondent Mike Synar is a member of Congress who opposed the GRH Act and filed suit to challenge its constitutionality on the ground that it violates the principle of separation of powers.] “ ‘[T]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’…” The Federalist No. 47, p. 325 (J. Cooke ed. 1961). Even a cursory examination of the Constitution reveals the influence of Montesquieu’s thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent with “[t]he judicial Power … extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States.” Art. III, § 2. Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States [i.e., an officer of the Executive Branch] may serve as a Member of the Congress. Art. I, § 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, § 4. And even in the impeachment of a President the presiding officer of the ultimate tribunal is not a member of the Legislative Branch, but the Chief Justice of the United States. Art. I, § 3. That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous, and

8  THE LAW OF EMERGENCIES

open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power. The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints “Officers of the United States” with the “Advice and Consent of the Senate…” Art. II, § 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on “Treason, Bribery or other high Crimes and Misdemeanors.” Article II, § 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers. This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress “should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate.” James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment… Madison’s position ultimately prevailed, and a congressional role in the removal process was rejected. This “Decision of 1789” provides “contemporaneous and weighty evidence” of the Constitution’s meaning since many of the Members of the First Congress “had taken part in framing that instrument.” Marsh v. Chambers, 463 U.S. 783, 790 (1983)… In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: “Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.” The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess… Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny… The primary responsibility of the Comptroller General under the instant Act is the preparation of a “report.” This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis. In preparing the report, the Comptroller General is to have “due regard” for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President’s fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates… Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute “execution of the law” in a

Chapter 1 l Our Constitutional Structure of Government  9

meaningful sense. On the contrary, we view these functions as plainly entailing execution of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of “execution” of the law. Under § 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute. The executive nature of the Comptroller General’s functions under the Act is revealed in § 252(a) (3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions: “The [Presidential] order must provide for reductions in the manner specified in section 251(a) (3), must incorporate the provisions of the [Comptroller General’s] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account…” § 252(a)(3) (emphasis added). See also § 251(d)(3)(A). Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly—by passing new legislation. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion…

Federalism The Constitution “leaves to the several States a residuary and inviolable sovereignty.” The Federalist No. 39.

Again, the starting point is the Constitution. Part of Article I lists specific acts that are forbidden to the states, such as signing separate treaties with foreign governments or printing currency. The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people…” You will see throughout this book examples of how these two seemingly contradictory provisions interact.

10  THE LAW OF EMERGENCIES

The World of State Constitutions We are all aware of the U.S. Constitution, but we may not realize that each state also has its own constitution. In fact, the colonists in the original 13 states adopted state constitutions before the War of Independence. Afterward, the new nation’s Constitutional Convention drew on ideas from the already existing state constitutions in drafting the national constitution. As a result, there are many similarities between the structure of the national government and the structure of each state government. For example, all states have the same three branches—executive, legislative, and judicial—that the federal system has. All states except one (Nebraska) have bicameral legislatures. The precise language of state constitutions, however, can vary significantly from that of the federal Constitution. Some states have enshrined individual rights or other protections that go beyond what is included in the U.S. Constitution. For example, the protections for equality under the law vary significantly from the language of the U.S. Constitution in the Fourteenth Amendment. The Fourteenth Amendment provides that: No State shall … deny to any person within its jurisdiction the equal protection of the laws. Compare how four states approach the principle of equality: Connecticut All men when they form a social compact are equal in rights… No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability. Iowa All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens. Massachusetts All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. Vermont Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family or set of persons, who are a part only of that community…

Chapter 1 l Our Constitutional Structure of Government  11

State constitutions vary enormously not only in precise language but also in their scope and importance. Several go beyond the negative liberty focus of the federal Constitution and incorporate positive rights (rights to, rather than just rights against) in the areas of public education, income support, and access to housing. Most are far longer and more detailed than the federal charter, and many get into the weeds of such questions as local taxing authority, eligibility for business and professional licenses, regulation of state lotteries, and the sale of alcoholic beverages. Although some states have interpreted their state constitutions more generously than the U.S. Constitution with regard to important individual rights, others have been amended to cabin rights protections as extending no further than those in national constitutional law. There are few generalizations that are valid about so many and so variant a set of texts, except that in certain states, on certain questions of law, when there is no contradictory federal law (see below), state constitutional law can be determinative. For that reason, state provisions should not be forgotten in understanding the legal landscape of constitutional law.

Federal–State Conflict What happens when a federal law and a state law are directly contradictory? As long as the subject matter is within the scope of federal authority—for example, if the law pertains to activities that have a connection with interstate commerce—then the federal law trumps. The framers of the Constitution included a Supremacy Clause in Article VI stating that “this Constitution and the laws of the United States … shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” One way of thinking of the federalist dimension of American government is the concept of dual sovereignty: within their respective realms, both the national government and state governments have authority to regulate conduct. As Justice Kennedy wrote in 1995 in United States v. Lopez: Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one. “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments [branches]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51 … (J. Madison). In the early 1800s, even under the Constitution, the scope of state government sovereignty was broader than that of the national government because there was such limited capacity for political, economic, or social life to extend beyond a relatively small geographic area. Today, with the emergence of a national (and international) economy and massive technological change, the reverse is true. There are still some areas of law, however, that remain primarily under the control of the states and that are insulated from interstate commerce. Disputes continue to arise about where the line should be drawn on particular issues.

12  THE LAW OF EMERGENCIES

New York v. United States U.S. Supreme Court, 1992 Justice O’Connor delivered the opinion of the court. These cases implicate one of our Nation’s newest problems of public policy and perhaps our oldest question of constitutional law. The public policy issue involves the disposal of radioactive waste:… The constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and the States. We conclude that while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so. We therefore find that only two of the Act’s three provisions at issue are consistent with the Constitution’s allocation of power to the Federal Government. We live in a world full of low level radioactive waste. Radioactive material is present in luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants. Low level radioactive waste is generated by the Government, by hospitals, by research institutions, and by various industries. The waste must be isolated from humans for long periods of time, often for hundreds of years. Millions of cubic feet of low level radioactive waste must be disposed of each year… Faced with the possibility that the Nation would be left with no disposal sites for low level radioactive waste, Congress responded by enacting the Low-Level Radioactive Waste Policy Act [in 1980 and the Low-Level Radioactive Waste Policy Amendments Act of 1985. New York State is challenging the requirements imposed on states by the 1985 law.]… … [Q]uestions [about the division of power between federal and state government] can be viewed in either of two ways. In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution. In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment. …[T]he two inquiries are mirror images of each other. If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress… Congress exercises its conferred powers subject to the limitations contained in the Constitution. … The Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power… This framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role…

Chapter 1 l Our Constitutional Structure of Government  13

[In addition], the Constitution provides that “the Laws of the United States … shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. As the Federal Government’s willingness to exercise power within the confines of the Constitution has grown, the authority of the States has correspondingly diminished to the extent that federal and state policies have conflicted. We have observed that the Supremacy Clause gives the Federal Government “a decided advantage in th[e] delicate balance” the Constitution strikes between state and federal power… Petitioners do not contend that Congress lacks the power to regulate the disposal of low level radioactive waste. … This litigation instead concerns the circumstances under which Congress may use the States as implements of regulation; that is, whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way. Our cases have established a few principles that guide our resolution of the issue. As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. … While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions… In providing for a stronger central government [than existed under the Articles of Confederation], the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. …[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce. This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State’s policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here. First, under Congress’ spending power, “Congress may attach conditions on the receipt of federal funds.” South Dakota v. Dole … [Ed. note: See Chapter 3.] Second, where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress’ power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. This arrangement [] has been termed “a program of cooperative federalism.”… By either of these methods, as by any other permissible method of encouraging a State to conform to federal policy choices, the residents of the State retain the ultimate decision as to whether or not the State will comply. If a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant. If state residents would prefer their government to devote its attention and resources to problems other than those deemed important by Congress, they may choose to have the Federal Government rather than the State bear the expense of a federally mandated regulatory program, and they may continue to supplement that program to the extent state law is not pre-empted. Where Congress encourages state regulation rather than compelling

14  THE LAW OF EMERGENCIES

it, state governments remain responsive to the local electorate’s preferences; state officials remain accountable to the people… With these principles in mind, we turn to the three challenged provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985. … [The law had three sets of incentives for the states in dealing with the problem of retroactive waste. The Court upheld the first two as constitutionally valid, but struck down the third as an encroachment on the powers of the states.] … The Act’s first set of incentives, in which Congress has conditioned grants to the States upon the States’ attainment of a series of milestones, is thus well within the authority of Congress under the Commerce and Spending Clauses. … In the second set of incentives, Congress has authorized States and regional compacts with disposal sites gradually to increase the cost of access to the sites, and then to deny access altogether, to radioactive waste generated in States that do not meet federal deadlines. As a simple regulation, this provision would be within the power of Congress to authorize the States to discriminate against interstate commerce. … The take title provision is of a different character. This third so-called “incentive” offers States, as an alternative to regulating pursuant to Congress’ direction, the option of taking title to and possession of the low level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the States’ failure to do so promptly. In this provision, Congress has crossed the line distinguishing encouragement from coercion. … Because an instruction to state governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two. … Either way, “the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program,” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution. … … The Federal Government may not compel the States to enact or administer a federal regulatory program. The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low-level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders. …

Judicial Review The Founders understood judicial review as an essential component of liberty. According to the Federalist No. 78: [T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority…

Chapter 1 l Our Constitutional Structure of Government  15

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents… The courts can review laws in two important ways. Courts have the power to declare whether acts of the legislature (Congress or a state legislature) violate the Constitution. ● Courts also have the power to interpret the meaning of statutory text when there is ambiguity. ●

If the Supreme Court finds that a statute has a particular meaning and Congress does not agree with the Court’s interpretation, Congress can remove the ambiguity by amending the law to clarify its meaning. Assuming that ambiguity was the only problem with the statute, Congress has the last word. If, however, the Supreme Court finds that a statute is unconstitutional, Congress’ only option is to enact a new statute in line with the criteria set out by the Court, because the Supreme Court has the last word on the meaning of the Constitution. (For more about the relationship between federal and state courts, see Chapter 4.) Chief Justice John Marshall crystallized the principle of judicial review in the opinion that he wrote for the Supreme Court in one of the most famous and important of all Supreme Court cases. In 1803, the Court articulated the principle of judicial supremacy in interpreting the Constitution, a principle that has endured as the third essential component of the system of checks and balances. In Marbury v Madison, the Court wrote It is emphatically the province and duty of the judicial department [branch] to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law [passed by Congress] be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Since Marbury v. Madison, the principle of judicial review has become a central facet of American governance. Following is an excerpt from the famous “Watergate tapes” case, in which President Richard Nixon sought to quash a subpoena issue for tapes and other materials relevant to the role of White House officials in the Watergate break-in.

16  THE LAW OF EMERGENCIES

United States v. Nixon U.S. Supreme Court, 1974. 418 US 683 Chief Justice Burger delivered the opinion of the court. … [W]e turn to the claim that the subpoena should be quashed because it demands ‘confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.’ The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President’s claim of privilege… In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, that ‘(i)t is emphatically the province and duty of the judicial department to say what the law is.’ No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. In a series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U.S. Const. Art. I, § 6. Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers. Our system of government ‘requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.’ And in Baker v. Carr, the Court stated: ‘(D)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.’ Notwithstanding the deference each branch must accord the others, the ‘judicial Power of the United States’ vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47. We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is’ with respect to the claim of privilege presented in this case. Marbury v. Madison.

Chapter 1 l Our Constitutional Structure of Government  17

Summary This chapter outlines the fundamental concepts in the single document most fundamental to American law: the Constitution. Understanding these principles is essential to your understanding any particular set of legal rules or concepts.

Important Terms Checks and balances Enumerated powers ● Federalism ● Judicial review ● Separation of powers ● Supremacy Clause ● ●

Review Questions 1. What are the different responsibilities and powers of each of the three branches of government? 2. Which are known as “the political branches”? 3. How does ongoing interaction among the branches “make law”? 4. What powers does the U.S. Supreme Court have under the doctrine of judicial review?

2 The Powers of the President in an Emergency Introduction It only makes sense that the Executive Branch must have power to rapidly mobilize the resources of the national government, including the military, in times of emergency. But to what extent, for how long, and with what oversight? The President can be voted out of office, or even impeached, but what are the other limits on presidential power? These are the questions that you will explore in this chapter. You will see how the Supreme Court has interpreted the powers of the nation’s highest office and also how Congress has reacted to national emergencies either by restraining or extending the authority of the President to take emergency actions. Consider as you read how might an amendment to the Constitution be drafted that would incorporate our current understanding of the role of the Executive Branch in an emergency.

Article II of the Constitution (Excerpts): Section 1 The executive Power shall be vested in a President of the United States of America….

Section 2 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;…

Section 3 [The President] shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The Sources of Presidential Power As always, we look first to the text of the Constitution for the sources of any form of governmental power. Article II creates the office of the President, vests the executive power of the national government in that office, delineates the powers and duties of the office, and spells The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00002-4 © 2018 Elsevier Inc. All rights reserved.

19

20  THE LAW OF EMERGENCIES

out such important details as who is eligible to serve as President, the operation of the Electoral College by which the President is chosen, and the text of the oath of office. (See Appendix 1 for full text of Article II.) Numerous questions have arisen since 1789 about how to interpret the broad general powers described in the text in specific situations, many involving war or other emergencies. In response, the other two branches of government have elaborated on the scope of presidential powers and duties in judicial rulings and in legislation. The Supreme Court, in its role as interpreter of the Constitution, has decided a number of cases addressing whether a President has acted within the limitations of the office. Because the constitutional text is open-ended, the Court has developed the concept of implied powers, to allow the President to take actions necessary to properly effectuate the enormous responsibilities associated with national security and domestic welfare. Through these cases, the dominant approach to oversight of presidential power that has emerged is generous but not unlimited. It is most constrained when it impinges upon the liberty rights of individuals, especially but not limited to U.S. citizens. As former Justice Sandra O’Connor wrote in a case involving the indefinite detention without access to counsel of a combatant captured in Afghanistan, “a state of war is not a blank check for a President where the rights of U.S. citizens are concerned.” Hamdi v. Rumsfeld. The other branch—Congress—has also weighed in on the powers of the presidency, by exercising its legislative role. Because legislation can be and often is highly specific, Congress has provided detail for what the President can and cannot do in a wide variety of situations. In this chapter, we will examine a few of the many examples of authority for presidential action, concentrating on those involving emergencies of some kind.

The Constitutional Standard for Exercise of Article II Powers One of the most important Supreme Court cases in American history about the separation of powers arose during an emergency. In 1952, the United States was embroiled in the Korean War. The production of steel to be used in military arms and vehicles was essential to the war effort. At the same time, workers at the nation’s steel mills were demanding higher wages. The owners refused, and the steelworkers union threatened to strike. During World War II, Congress had enacted a law granting President Franklin Roosevelt the power to set wages and other terms of employment in war-related industries, in order to insure that production was kept at maximum capacity. That law expired in 1946, however, and Congress did not enact a new law granting the same power to the President for the Korean War. President Harry Truman, however, felt that he needed to act in order to prevent a strike from occurring at steel factories that could hamper war efforts. So he issued an order declaring that the government would take over operation of steel factories for such time as was necessary for the owners and the union to negotiate a new contract. In the meantime, no strikes would be allowed, and the government would set interim hourly wage rates for employees. Steel manufacturers challenged President Truman’s order, and the case went to the Supreme Court.

Chapter 2 l The Powers of the President in an Emergency  21

How Do We Define “Emergency”? There is no one accepted definition of emergency, but in analyzing emergency-related laws, the Congressional Research Service discerned four characteristics. I have adapted them as follows: 1. Urgency—sudden, possibly unforeseen and with consequences of unknown duration 2. Gravity—potentially posing a severe threat to life and property 3. Exigency—requiring immediate action in response 4. Collectivity—affecting a large number of persons and necessitating a response by government.

Youngstown Sheet & Tube Co. v. Sawyer United States Supreme Court, 1952 Justice Black delivered the opinion of the Court. We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States. … The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. … It is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “the executive Power shall be vested in a President …”; that “he shall take Care that the Laws be faithfully executed”; and that he “shall be Commander in Chief of the Army and Navy of the United States.” The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of

22  THE LAW OF EMERGENCIES

private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States ….” After granting many powers to the Congress, Article I goes on to provide that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” …The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can makes laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this lawmaking power of Congress to presidential or military supervision or control.… Justice Jackson, concurring in the judgment and opinion of the Court. … The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area,

Chapter 2 l The Powers of the President in an Emergency  23

any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. … Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. … This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court’s first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitutional postures. … The clause on which the Government … relies is that “The President shall be Commander in Chief of the Army and Navy of the United States ….” These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued Presidential advisers who would not waive or narrow it by non-assertion yet cannot say where it begins or ends. It undoubtedly puts the Nation’s armed forces under Presidential command. Hence, this loose appellation is sometimes advanced as support for any Presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy. That seems to be the logic of an argument tendered at our bar—that the President having, on his own responsibility, sent American troops abroad derives from that act ‘affirmative power’ to seize the means of producing a supply of steel for them. To quote, “Perhaps the most forceful illustrations of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President’s constitutional powers.” Thus, it is said he has invested himself with ‘war powers.’ I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the

24  THE LAW OF EMERGENCIES

Nation’s armed forces to some foreign venture. I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it. Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander-in-Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power ‘to raise and support Armies’ and “to provide and maintain a Navy.” This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what manner and by what means they shall be spent for military and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces can the Executive because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms? There are indications that the Constitution did not contemplate that the title Commanderin-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. … We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress…. [Another] clause in which the Solicitor General [the attorney representing the President] finds seizure powers is that “he shall take Care that the Laws be faithfully executed ….” That authority must be matched against words of the Fifth Amendment that “No person shall be … deprived of life, liberty, or property, without due process of law ….” One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules. The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law. Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. ‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘plenary’ powers, ‘war’ powers and ‘emergency’ powers are used, often interchangeably and without fixed or ascertainable meanings. The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim

Chapter 2 l The Powers of the President in an Emergency  25

of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question … In the practical working of our Government we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. … … I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. … We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. …We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up. …

The Role of Justice Jackson It is unusual for a concurring opinion by one Justice, rather than the official opinion of the Court, to become the principal precedent for an important point of law, but that is what has happened with the Jackson opinion in Youngstown. Justice Robert H. Jackson—the last person appointed to the court who became a lawyer through the apprenticeship system rather than by earning a law degree—was famous not only for the eloquence of his opinions but also for his common sense approach to issues related to the powers of government. In Youngstown, Justice Jackson drew on his previous experience as a high-ranking government lawyer, a role in which he had to consider when executive actions were justified by the Constitution. Before his appointment to the Court, Justice Jackson had represented the United States as Solicitor General and had also served as Attorney General, the only person who held both those posts before becoming a Justice of the Supreme Court.

Critical Thinking Analyze the framework for constitutional interpretation outlined in Justice Jackson’s concurring opinion in light of the four characteristics of an emergency described earlier. Should the nature of the emergency matter as an independent factor in assessing the President’s authority to act? The Court in Youngstown Steel analyzed authority only in terms of the scope of Article II’s text. Consider the extent to which the threat of a steel strike during a war correlates with those four characteristics. What if the nation had to respond to a massive cyberattack?

26  THE LAW OF EMERGENCIES

Foreign Relations The Supreme Court still relies on Justice Jackson’s opinion in the Youngstown Steel case, and on its categories of the latitude to which presidential action is entitled, as the lodestar for analyzing challenges to presidential authority. Unlike in Youngstown, however, where President Truman’s action was invalidated, in most cases the Court tends to give substantial leeway to the President. One field that traditionally has commanded great deference is that of determining the foreign policy of the United States.

Zivotofsky v. Kerry U.S. Supreme Court, 2015 Justice Kennedy delivered the opinion of the Court. …Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs. In 1948, President Truman formally recognized Israel in a signed statement of “recognition.” That statement did not recognize Israeli sovereignty over Jerusalem. Over the last 60 years, various actors have sought to assert full or partial sovereignty over the city, including Israel, Jordan, and the Palestinians. Yet, in contrast to a consistent policy of formal recognition of Israel, neither President Truman nor any later United States President has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem. Instead, the Executive Branch has maintained that “ ‘the status of Jerusalem … should be decided not unilaterally but in consultation with all concerned.’” United Nations Gen. Assembly Official Records (July 14, 1967) …. The President’s position on Jerusalem is reflected in State Department policy regarding passports and consular reports of birth abroad. Understanding that passports will be construed as reflections of American policy, the State Department’s Foreign Affairs Manual (FAM) instructs its employees, in general, to record the place of birth on a passport as the “country [having] present sovereignty over the actual area of birth.” If a citizen objects to the country listed as sovereign by the State Department, he or she may list the city or town of birth rather than the country. The FAM, however, does not allow citizens to list a sovereign that conflicts with Executive Branch policy. Because the United States does not recognize any country as having sovereignty over Jerusalem, the FAM instructs employees to record the place of birth for citizens born there as “Jerusalem.” In 2002, Congress passed the Act at issue here, the Foreign Relations Authorization Act, which contains a subsection that seeks to override the FAM by allowing citizens born in Jerusalem to list their place of birth as “Israel.”… When he signed the Act into law, President George W. Bush issued a statement declaring his position that § 214 would, “if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”…

Chapter 2 l The Powers of the President in an Emergency  27

In 2002, petitioner Menachem Binyamin Zivotofsky was born to United States citizens living in Jerusalem. [His mother requested a passport for him that listed his place of birth as “Jerusalem, Israel.”]… In considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer (concurring opinion). The framework divides exercises of Presidential power into three categories: first, when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Finally, when “the President takes measures incompatible with the expressed or implied will of Congress … he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To succeed in this third category, the President’s asserted power must be both “exclusive” and “conclusive” on the issue. In this case the Secretary contends that § 214(d) infringes on the President’s exclusive recognition power by “requiring the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns.” In so doing the Secretary acknowledges the President’s power is “at its lowest ebb.” Because the President’s refusal to implement § 214(d) falls into Justice Jackson’s third category, his claim must be “scrutinized with caution,” and he may rely solely on powers the Constitution grants to him alone. To determine whether the President possesses the exclusive power of recognition the Court examines the Constitution’s text and structure, as well as precedent and history bearing on the question. Despite the importance of the recognition power in foreign relations, the Constitution does not use the term “recognition,” either in Article II or elsewhere. The Secretary asserts that the President exercises the recognition power based on the Reception Clause, which directs that the President “shall receive Ambassadors and other public Ministers.” Art. II, § 3.… The inference that the President exercises the recognition power is further supported by his additional Article II powers. It is for the President, “by and with the Advice and Consent of the Senate,” to “make Treaties, provided two thirds of the Senators present concur.” Art. II, § 2, cl. 2. In addition, “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors” as well as “other public Ministers and Consuls.” As a matter of constitutional structure, these additional powers give the President control over recognition decisions. At international law, recognition may be effected by different means, but each means is dependent upon Presidential power. In addition to receiving an ambassador, recognition may occur on “the conclusion of a bilateral treaty,” or the “formal initiation of diplomatic relations,” including the dispatch of an ambassador. The President has the sole power to negotiate treaties, and the Senate may not conclude or ratify a treaty without Presidential action. The President, too, nominates the Nation’s ambassadors and dispatches other diplomatic agents. Congress may not send an ambassador without his involvement. Beyond that, the President himself has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. The Constitution thus assigns the President means to effect recognition on his own initiative. Congress, by contrast,

28  THE LAW OF EMERGENCIES

has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation… The text and structure of the Constitution grant the President the power to recognize foreign nations and governments. The question then becomes whether that power is exclusive. The various ways in which the President may unilaterally effect recognition—and the lack of any similar power vested in Congress—suggest that it is. So, too, do functional considerations. Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal. Recognition is a topic on which the Nation must “ ‘speak … with one voice.’”. That voice must be the President’s. Between the two political branches, only the Executive has the characteristic of unity at all times. And with unity comes the ability to exercise, to a greater degree, “[d]ecision, activity, secrecy, and dispatch.” The Federalist No. 70, p. 424 (A. Hamilton). The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition. He is also better positioned to take the decisive, unequivocal action necessary to recognize other states at international law. These qualities explain why the Framers listed the traditional avenues of recognition—receiving ambassadors, making treaties, and sending ambassadors—as among the President’s Article II powers.… It remains true, of course, that many decisions affecting foreign relations—including decisions that may determine the course of our relations with recognized countries—require congressional action. Congress may “regulate Commerce with foreign Nations,” “establish an uniform Rule of Naturalization,” “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” “declare War,” “grant Letters of Marque and Reprisal,” and “make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const., Art. I, § 8. In addition, the President cannot make a treaty or appoint an ambassador without the approval of the Senate. Art. II, § 2, cl. 2. The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds. Art. I, § 8, cl. 1. Under basic separation-of-powers principles, it is for the Congress to enact the laws, including “all Laws which shall be necessary and proper for carrying into Execution” the powers of the Federal Government. § 8, cl. 18. In foreign affairs, as in the domestic realm, the Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Although the President alone effects the formal act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. If Congress disagrees with the President’s recognition policy, there may be consequences. Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress. In practice, then, the President’s recognition determination is just one part of a political process that may require Congress to make laws. The President’s exclusive recognition power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds. Albeit limited, the exclusive recognition power is essential to the conduct of Presidential duties. The formal act of recognition is an executive

Chapter 2 l The Powers of the President in an Emergency  29

power that Congress may not qualify. If the President is to be effective in negotiations over a formal recognition determination, it must be evident to his counterparts abroad that he speaks for the Nation on that precise question…. In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. It is not for the President alone to determine the whole content of the Nation’s foreign policy. That said, judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations. Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition…. Having examined the Constitution’s text and this Court’s precedent, it is appropriate to turn to accepted understandings and practice. In separation-of-powers cases this Court has often “put significant weight upon historical practice.” NLRB v. Noel Canning…. This history confirms the Court’s conclusion in the instant case that the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone. For the most part, Congress has respected the Executive’s policies and positions as to formal recognition. At times, Congress itself has defended the President’s constitutional prerogative. Over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states. In this respect the Legislature, in the narrow context of recognition, on balance has acknowledged the importance of speaking “with one voice.” The weight of historical evidence indicates Congress has accepted that the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency….

Critical Thinking The Court states in Zivotofsky that the President does not have exclusive power to conduct foreign relations, but if a law about designation of place of birth is unconstitutional, how would Congress play a role? The Court suggests indirect methods: Congressional power to control “the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties.” Are those meaningful mechanisms? What would be the strengths and weaknesses for the nation of a determination that the President’s powers in foreign relations are virtually unlimited, subject to the Supreme Court’s power of judicial review, the Congress’ power of the purse, and the people’s power of electoral choice?

Deployment of Military Force The War Powers Act (also often referred to as the War Powers Resolution), enacted in 1973 over President Richard Nixon’s veto, provides its own framework of checks and balances for the deployment of armed forces. Since its enactment, however, every President has argued that it unconstitutionally infringes their powers as Commander in Chief. What do you think?

30  THE LAW OF EMERGENCIES

The War Powers Act In the absence of a declaration of war, in any case in which United States Armed Forces are introduced— 1. into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; 2. into the territory, airspace, or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or 3. in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth— A. the circumstances necessitating the introduction of United States Armed Forces; B. the constitutional and legislative authority under which such introduction took place; and C. the estimated scope and duration of the hostilities or involvement. … Within 60 calendar days after a report is submitted or is required to be submitted whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress 1. has declared war or has enacted a specific authorization for such use of United States Armed Forces, 2. has extended by law such 60-day period, or 3. is physically unable to meet as a result of an armed attack upon the United States. Such 60-day period shall be extended for not more than an additional 30 days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. Notwithstanding [the previous section], at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

In his veto message, President Nixon wrote that he was particularly disturbed by the fact that certain of the President’s constitutional powers as Commander in Chief of the Armed Forces would terminate automatically under this resolution 60 days after they were invoked. No overt Congressional action would be required to cut off these powers—they would disappear automatically unless the Congress extended them. In effect, the Congress is here attempting to increase its policy-making role through a provision which requires it to take absolutely no action at all. In 1999, President Bill Clinton directed that U.S. forces participate in NATO air and missile attacks against the former Yugoslavia. Following the lead of every President since 1973 who had initiated military action without a congressional declaration of war, President Clinton

Chapter 2 l The Powers of the President in an Emergency  31

submitted a report to Congress “consistent with”—but not in compliance with, thus not acknowledging the authority of—the War Powers Act. Members of Congress who opposed the decision, led by Representative Tom Campbell, sued to force cessation of participation by American forces. A three-judge appeals court unanimously ruled that the Members of Congress lacked standing, i.e., an injury that was specific and concrete, but instead had simply been opposed to the legislation. The court also found that Congress had other ways to assert its constitutional authority in a dispute with the President over the initiation of armed conflict.

Campbell v. Clinton U.S. Court of Appeals for the District of Columbia, 2000 …On March 24, 1999, President Clinton announced the commencement of NATO air and cruise missile attacks on Yugoslav targets. Two days later he submitted to Congress a report, “consistent with the War Powers Resolution,” detailing the circumstances necessitating the use of armed forces, the deployment’s scope, and expected duration, and asserting that he had “taken these actions pursuant to [his] authority … as Commander in Chief and Chief Executive.” On April 28, Congress voted on four resolutions related to the Yugoslav conflict: it voted down a declaration of war 427 to 2 and an “authorization” of the air strikes 213 to 213, but it also voted against requiring the President to immediately end U.S. participation in the NATO operation and voted to fund that involvement. The conflict between NATO and Yugoslavia continued for 79 days, ending on June 10 with Yugoslavia’s agreement to withdraw its forces from Kosovo and allow deployment of a NATO-led peacekeeping force. Throughout this period Pentagon, State Department, and NATO spokesmen informed the public on a frequent basis of developments in the fighting. Appellants, 31 congressmen opposed to U.S. involvement in the Kosovo intervention, filed suit prior to termination of that conflict seeking a declaratory judgment that the President’s use of American forces against Yugoslavia was unlawful under both the War Powers Clause of the Constitution and the War Powers Resolution (“the WPR”)… The question whether congressmen have standing in federal court to challenge the lawfulness of actions of the executive was answered, at least in large part, in the Supreme Court’s recent decision in Raines v. Byrd (1997). … Observing it had never held that congressmen have standing to assert an institutional injury as against the executive, the Court held that petitioners in the case lacked “legislative standing” to challenge the Act. The Court noted that petitioners already possessed an adequate political remedy, since they could vote to have the Line Item Veto Act repealed, or to provide individual spending bills with a statutory exemption…

Legislators may disagree with an executive decision, but they are not harmed as individuals. As institutional representatives, they would have standing only if their votes have been “completely nullified” by the President flouting a Congressional vote.

32  THE LAW OF EMERGENCIES

In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign; indeed, there was a measure—albeit only a concurrent resolution— introduced to require the President to withdraw U.S. troops. Unfortunately, however, for those congressmen who, like appellants, desired an end to U.S. involvement in Yugoslavia, this measure was defeated by a 139 to 290 vote. Of course, Congress always retains appropriations authority and could have cut off funds for the American role in the conflict. Again there was an effort to do so but it failed; appropriations were authorized. And there always remains the possibility of impeachment should a President act in disregard of Congress’ authority on these matters… Silberman, Circuit Judge, concurring:… Prior litigation under the WPR has turned on the threshold test whether U.S. forces are engaged in hostilities or are in imminent danger of hostilities. But the question posed by appellants—whether the President’s refusal to discontinue American activities in Yugoslavia violates the WPR—necessarily depends on the statute having been triggered in the first place. It has been held that the statutory threshold standard is not precise enough and too obviously calls for a political judgment to be one suitable for judicial determinations. I think that is correct. Appellants point to a House Report suggesting that hostilities for purposes of the WPR include all situations “where there is a reasonable expectation that American military personnel will be subject to hostile fire.” See H.R. REP. NO. 287, 93rd Cong., 1st Sess. 7 (1973). That elaboration hardly helps. It could reasonably be thought that anytime American soldiers are confronted by armed or potentially armed forces of a nonally there is a reasonable expectation that they will be subject to hostile fire. Certainly any competent military leader will assume that to be so. Appellants argue that here there is no real problem of definition because this air war was so overwhelming and indisputable. It is asserted that the President implicitly conceded the applicability of the WPR by sending the report to Congress. In truth, the President only said the report was “consistent” with the WPR. In any event, I do not think it matters how clear it is in any particular case that “hostilities” were initiated if the statutory standard is one generally unsuited to judicial resolution… Appellants cannot point to any constitutional test for what is war. See, e.g., Holtzman v. Schlesinger (1973) [in which] Justice Douglas, in chambers, vacat[ed] an order of Court of Appeals granting stay of district court’s injunction against bombing of Cambodia and then Justice Marshall, in chambers, grant[ed] a replacement stay the same day with the concurrence of the other Justices; Holtzman v. Schlesinger (2d Cir.1973) (holding legality of Cambodia bombing nonjusticiable because courts lack expertise to determine import of various military actions). Instead, appellants offer a rough definition of war provided in 1994 by an Assistant Attorney General to four Senators with respect to a planned intervention in Haiti, as well as a number of law review articles each containing its own definition of war. I do not think any of these sources, however, offers a coherent test for judges to apply to the question what constitutes war, a point only accentuated by the variances, for instance, between the numerous law review articles. For that reason, I disagree… that we can decide appellants’ constitutional claim because it is somehow obvious in this case that our country fought a war. Baker v. Carr speaks of a case involving “a lack of judicially discoverable and manageable standards for resolving” the issue presented, not just a case the facts of which are obscure; the focus is on the standards. Even if this court knows all there is to know about the Kosovo conflict, we still do not know what standards to apply to those facts. …

Chapter 2 l The Powers of the President in an Emergency  33

[There are] numerous cases in which a court has determined that our nation was at war, but none of these cases involved the question whether the President had “declared war” in violation of the Constitution…. It is similarly irrelevant that courts have determined the existence of a war in cases involving insurance policies and other contracts, the Federal Tort Claims Act, and provisions of the military criminal code applicable in “time of war.” None of these cases asked whether there was a war as the Constitution uses that word, but only whether a particular statutory or contractual provision was triggered by some instance of fighting. … Even assuming a court could determine what “war” is, it is important to remember that the Constitution grants Congress the power to declare war, which is not necessarily the same as the power to determine whether U.S. forces will fight in a war. This distinction was drawn in the Prize Cases 67 (1862). There, petitioners challenged the authority of the President to impose a blockade on the secessionist States, an act of war, where Congress had not declared war against the Confederacy. The Court, while recognizing that the President “has no power to initiate or declare a war,” observed that “war may exist without a declaration on either side.” In instances where war is declared against the United States by the actions of another country, the President “does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.” Importantly, the Court made clear that it would not dispute the President on measures necessary to repel foreign aggression. … I read the Prize Cases to stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected. Therefore, I assume, arguendo, that appellants are correct and only Congress has authority to initiate “war.” If the President may direct U.S. forces in response to third-party initiated war, then the question any plaintiff who challenges the constitutionality of a war must answer is, who started it? The question of who is responsible for a conflict is, as history reveals, rather difficult to answer, and we lack judicial standards for resolving it. See, e.g., Greenham Women Against Cruise Missiles v. Reagan, (S.D.N.Y.1984) (court lacked judicially manageable standards to decide if placement of U.S. cruise missiles in England was a war-like, “aggressive” act). Then there is the problem of actually discovering the necessary information to answer the question, when such information may be unavailable to the U.S. or its allies, or unavailable to courts due to its sensitivity. Perhaps Yugoslavia did pose a threat to a much wider region of Europe and to U.S. civilian and military interests and personnel there.…

Postscript—The Supreme Court denied review of this decision.

Critical Thinking Imagine that the President, at the request of the Prime Minister of the United Kingdom, sent U.S. fighter planes to bomb North Korean troops that had invaded a small island in the South Pacific owned by Britain. No Americans are present on the island. The President gave no advance notice of his action to Congress, and surprised the world by declaring that “when one of our strongest allies is attacked by one of our worst enemies, America will join the fight, no matter what it takes.” Has the President exceeded his authority? Should the War Powers Act be enforced?

34  THE LAW OF EMERGENCIES

The Debate Over Presidential Power after September 11 In the wake of the September 11, 2001 attacks, Congress passed two resolutions that once again provided authority to the President to initiate military actions, even though—once again—the President did not concede that such authorization was necessary. Congress passed the Authorization for Use of Military Force (AUMF) on September 18, 2001, and slightly more than a year later, the Authorization for Use of Military Force Against Iraq. During the post 9/11 conflicts, U.S. military forces seized civilians who were accused of aiding the enemy. The need for incarceration led to the creation of the prison at Guantanamo Bay, Cuba. The status of the several hundred persons being held at Guantanamo generated an intense debate over the outer reaches of Presidential authority and an intense interbranch power struggle. In a series of decisions, the Supreme Court sought to accord an appropriate degree of deference to a Commander-in-Chief during wartime without either abdicating its responsibility to serve as a check and balance to Executive Branch power or failing to provide those seized with such fundamental protections as the right to know the charges against them and obtain access to a court. Hamdi v. Rumsfeld (2004) involved an individual who allegedly had fought with Taliban forces in Afghanistan against forces allied with the United States. Yaser Esam Hamdi had been born in Louisiana, but moved as a child to Saudi Arabia when his family relocated. The U.S. government argued that it could lawfully hold Hamdi indefinitely, without bringing specific charges against him or providing him with access to a lawyer or the ability to seek review in a court of his detention. This power, according to the government, emanated from two sources: the powers implied to the President in Article II and the AUMF adopted by Congress, which authorized the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11 attacks. The Court ruled that the President, through the Defense Department, did have the power to detain combatants, including citizens, under the statutory language of the AUMF; it therefore did not need to reach the more difficult question of the scope of implied power under Article II. Although the Court in Hamdi upheld the detention authority, it ruled that Hamdi’s procedural due process rights had been violated by the terms under which he was held. “[A] citizendetainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” After the decision, the military released Hamdi in Saudi Arabia on condition that he relinquish his U.S. citizenship. President George W. Bush had issued a Military Order in November 2001 authorizing the creation of military commissions to conduct trials of non-citizens accused of aiding al-Qaeda. That same month, American forces in Afghanistan captured Salim Ahmed Hamdan, a citizen of Yemen, and accused him of conspiracy to engage in hostilities against the United States. The charge was based primarily on the allegation that Hamdan had worked from 1996 to 2001 as a bodyguard and driver for Osama bin Laden. He was imprisoned at Guantanamo. In Hamdan v. Rumsfeld (2006), the Supreme Court ruled that the President’s power to convene or set the terms for trial by military commission were limited by Congress when it

Chapter 2 l The Powers of the President in an Emergency  35

adopted the Uniform Code of Military Justice (UCMJ). Hamdan sought to be tried by courtmartial. Under the UCMJ, commissions could be substituted for courts-martial only when authorized by the Constitution and laws, including the “law of war.” The Court found that there were no exigent circumstances justifying the denial to Hamdan of procedural protections available in courts-martial, but not in the military commissions, including the right to be present at the trial and to be informed of the evidence against him. In response to this ruling, the Bush Administration sought and received from Congress the authorization to utilize many of the processes that the Court had found inadequate. Two years later, however, the Court ruled that the Military Commissions Act enacted after Hamdan itself violated the Constitution because it eliminated the jurisdiction of federal courts to hear habeas corpus proceedings brought by detainees. (“Habeas corpus,” meaning literally bring forth the body, is a form of legal action available to prisoners to challenge the legality of their incarceration.) In Boumediene v. Bush (2008), the Court ruled that Congress had exceeded its constitutional authority because it could suspend the writ of habeas corpus only by satisfying the terms of the Suspension Clause, limiting such action to “cases of invasion or rebellion [when] the public safety may require it.” In the wake of Boumediene, the Administration revised the procedures applicable to military commissions to provide more procedural protections for the accused. Salim Hamdan was the first person tried under the new rules. He was acquitted of some charges and convicted of others. (A federal court vacated the convictions in 2012.) The commission sentenced him to 66 months in prison, with credit for the 61 months that he had already been incarcerated. The United States transferred him to Yemen in November 2008, where he served the remaining 1 month of his sentence. In reflecting on the Guantanamo cases, Supreme Court Justice Stephen Breyer concluded that the government had won on two points, but that the Court had broken new ground by ruling for the challengers on several others. The Court affirmed that the President could order military detention for enemy combatants during active hostilities and that U.S. citizens could be among those who were detained. However, the Court also made clear that the Executive Branch has no “blank check” during a war: Guantanamo prisoners had the right to bring habeas corpus actions in civilian courts to challenge their detention as unlawful; that they had a right to fundamental aspects of fair and neutral procedure if they challenged their classification as enemy combatants; and that the Executive Branch could not force the trials to be held before military commissions.

Should the AUMF be Repealed? The text of the AUMF states as follows: The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

36  THE LAW OF EMERGENCIES

We are now 15 years and counting past September 11. Many national security experts believe that Al-Qaeda has been decimated, with its role as a generator of terrorist attacks having been assumed by entities like ISIS, which did not exist in 2001. Nonetheless, the legality of the attacks on those entities has been justified by the AUMF. What about Al-Qaeda of the Arabian Peninsula and Al Shabaab in Somalia: they did not exist in 2001, but can they be considered to be acting at the direction of Al-Qaeda? Do we know whether they follow directions from the older group? In another section, AUMF states that it should be considered to be specific statutory authorization as provided for in the War Powers Act. Given the breadth and vagueness of Presidential power to conduct military activities, and the refusal of every President since Nixon to treat the War Powers Act as binding, does the existence of AUMF even matter? The combination of its uncertain applicability and its possible irrelevance dramatically illustrates the murkiness of legal authority for military action, except in situations in which the United States is directly under attack or an attack appears to be imminent.

Executive Orders and Presidential Directives The final forms of Presidential authority that we will discuss are executive orders and presidential directives. Exercising power in the role of CEO of the Executive Branch, Presidents have issued hundreds of executive orders covering a wide range of issues, including personnel policy for federal employees, procurement procedures, oversight of government contactors, and procedures and criteria for agency regulations. A statute requires their publication in the Federal Register, a daily publication of the Executive Branch that constitutes formal public notice of a variety of government actions. Most Executive Orders concern fairly mundane topics and thus are quite a bit less dramatic than the protracted battles over Constitutional meaning just described. This is not always the case, however. It was an Executive Order issued by President Truman that steel companies challenged in the Youngstown case. Executive Order 10340 (April 10, 1952). And a number of important policy decisions have been promulgated by Presidential Directive, including a series of Homeland Security Presidential Directives (HSPD). As the steel seizure case demonstrates, an Executive Order will not be enforceable if it lacks a legal basis in either the Constitution or a specific statute. In general, the President is accorded a degree of latitude in exercising the responsibilities of operating the federal government. With regard to personnel policies, for example, Presidents going back to Franklin Roosevelt have issued orders prohibiting discrimination in the federal workforce. In Executive Order 13658, President Obama set a minimum wage for employees of private companies that are paid through federal contracts, citing the relationship between the goals of economy and efficiency set by Congress and the positive impact of higher pay on the morale and productivity and quality of work being done for the government. So long as an Executive Order is properly grounded in Constitutional or statutory authority, it has the force of law, unlike Directives or more informal documents such as Proclamations and Memoranda. Executive Orders are not permanent, however. A new President can revoke

Chapter 2 l The Powers of the President in an Emergency  37

those issued in a previous administration. In addition, Congress can effectively repeal an Executive Order, as it did in 1992 when it passed legislation declaring that an Order issued by President George H.W. Bush establishing a human fetal tissue bank for research purposes “shall not have any legal effect.” P.L. 103-43, § 121. Presidential Directives are similar, but usually less formal. Presidents have developed several series of related directives. President George W. Bush began the series of Homeland Security Presidential Directives (HSPD) in 2003. Unlike Executive Orders, publication is not required of directives. As a result, they may be classified in one of the categories of secrecy from the moment of their issuance. In addition, persons cannot be penalized for violation of a directive. Topics covered by the HSPDs that have been issued to date include the establishment of emergency management systems and continuity of operations plans for Executive Branch agencies, standards for security checks at the entrances to federal building, policies to protect food and agriculture from poisoning, protocols for cyber-security, and the development of a “disaster health care system” by hospitals and other health providers. (See Chapters 7 and 8 for more detailed descriptions of relevant HSPDs.)

Summary As head of the Executive Branch, the President must have adequate—but not too much— power to act in emergency situations. Since the steel seizure case, Congress has enacted a number of statutes to provide more explicit rules to supplement the framework suggested by Justice Jackson in that opinion. Underlying the problem of how to properly define Presidential power is the inherent structural tension between Congress and the President, one that resists an easy solution. How do you think the power to respond should be divided? What are the strengths and weaknesses of your reasoning?

Important Terms ● ● ● ● ● ●

Executive orders Habeas corpus Implied powers Military commissions Presidential directives The “take care” clause

Review Questions 1. Explain the categories of presidential authority under the Constitution that Justice Jackson explicated in the steel seizure case. 2. How much weight should courts give to the characteristics of an emergency in assessing whether to grant greater flexibility for executive action? Should all four be required? Are some more important others? If so, which?

38  THE LAW OF EMERGENCIES

3. Since every President has refused to recognize the binding effect of the War Powers Act, what functions does it serve? 4. How does the Authorization for the Use of Military Force differ from the War Powers Act? 5. How much difference would it make to Presidential authority if Congress repealed both those statutes?

3 The Reach of Congressional Power Introduction Whether the trigger is an extreme weather event, a contagious disease outbreak or armed conflict, when an emergency occurs that affects the United States, we look to the President and the Executive Branch for a swift response. In the inevitable drama of such an event, the President is almost always the lead actor. Over time, however, the role of the legislature has grown in importance in the field of emergency law. So while the President may command center stage, it is most often Congress that has written the script. The process of writing that script—of enacting legislation—is more complex than you might think. In this chapter, you will learn about three separate methods for Congressional input into the ways that the nation will respond to an emergency: First, Congress has enacted a specific law—the National Emergencies Act—that establishes a unique process for the mobilization of resources when there is an urgent need for national action. ● Second, there is the normal process by which legislation is enacted, including legislation on issues related to emergencies and disasters. ● Lastly, there is a distinctive budget process by which Congress uses its power to fund state and local governments to advance national policies and practices, a mechanism at the heart of emergency management policymaking. ●

Most federal emergency law is either statutory or regulatory. This chapter focuses on law as it emerges from Congress. Chapter  5 covers the regulatory work of federal agencies that enforce these laws and supervise grantee compliance.

The Scope and Structure of Congressional Power The Framers created Congress with the first words of the first Article of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives…” In Section 8 of Article I, the Constitution lists the powers of Congress. (See Appendix 1 for the remainder of Article I.) This list is referred to as the “enumerated” powers of Congress, and legislation may not reach past the boundaries of this enumeration. That said, the Framers constructed a list that allows great leeway, a characteristic that has proved essential as the United States has expanded and the world has changed in ways that they could not have imagined.

The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00003-6 © 2018 Elsevier Inc. All rights reserved.

39

40  THE LAW OF EMERGENCIES

Article I. The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; … To declare War, … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Congress is bicameral, with a Senate and a House of Representatives. Each state elects two Senators, for a total of 100. The number of Representatives that each state has in the House depends on its population. Every 10 years, the number for each state is adjusted if its population has increased or decreased relative to the whole population. This process is called apportionment. Some states gain and some states lose in this process, but the total number of House members remains 435. The House is considered the most direct link between the people and the national government for two reasons: first, Representatives are elected from relatively small districts, while each Senator is chosen in a statewide election. Second, all Representatives are elected every 2 years, while Senators serve 6 year terms. Elections of Senators are staggered, so that approximately one-third of the seats in the Senate are contested every 2 years, along with all the seats in the House.

The Role of Congress in Emergencies From the earliest days of the republic, through the Civil War, the world wars and to the present, the nation has had to grapple with how best to handle emergencies of many kinds. These situations often present the recurring tension of how to balance the demands of democracy with those of efficacy. It is essential that the Executive Branch has the power to act swiftly, yet it is dangerous to delegate so much power to the President that an emergency could be the pretext for the assumption of quasi-dictatorial authority. Congress, with all its unwieldiness, is the institutional location for providing ground rules so that even emergencies are handled according to the rule of law. As you read this chapter, consider how various legal mechanisms help to counteract the slowness that is baked into standard forms of Congressional action. During most of our history, Congress reacted separately and differently to each situation involving imminent or extraordinary threats. Most of the emergency laws enacted by Congress lasted only short periods, and addressed only a particular, temporary problem. There was no

Chapter 3 l The Reach of Congressional Power  41

large-scale federal government response to natural disasters until the Mississippi River flood of 1927 devastated large portions of the South and left thousands of persons homeless. In the early 1970s, spurred in part by debates over the undeclared war in Vietnam, Congress undertook the project of systematizing the laws of emergency. This was a period of great public concern over the risk of a President assuming more power—in both military (external) and police (internal) form—than was necessary to meet a threat. In 1973, Congress appointed a Special Committee on National Emergencies and Delegated Emergency Powers. The Committee found that federal law contained 470 separate provisions that delegated extraordinary authority to the executive in a time of national emergency. The committee unanimously recommended new legislation to establish a clear, uniform procedure for presidential declaration and Congressional regulation of emergencies. In 1976, Congress enacted the National Emergencies Act (NEA). The NEA provides the basic framework under which the President asserts his authority to deploy federal resources in a time of emergency. Since it was enacted, the NEA has been invoked dozens of times, in situations ranging from prohibitions on engaging in financial transactions with rogue governments, to a ban on imports from a certain country, to the nation’s response to terrorism. National Emergencies Act United States Code Title 50 § 1621. [Declaration by President] a. With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register. b. Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President specifically declares a national emergency, and (2) only in accordance with this chapter. … § 1622. [Duration and termination] a. Any national emergency declared by the President in accordance with this subchapter shall terminate if— 1. there is enacted into law a joint resolution terminating the emergency; or 2. the President issues a proclamation terminating the emergency. Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date … b. Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated. c. … (5) [Sunset] … Any national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the

42  THE LAW OF EMERGENCIES

declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary. § 1631. [Which laws are triggered] When the President declares a national emergency, no powers or authorities made available by statute for use in … an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by … Executive orders … § 1641. (c) Expenditures … When the President declares a national emergency or Congress declares war, the President shall transmit to Congress, within ninety days after the end of each six-month period after such declaration, a report on the total expenditures incurred by the United States Government during such six-month period which are directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.

The following timeline summarizes the process:





1. President declares national emergency (“the proclamation”) 2. Proclamation is published in Federal Register and transmitted to Congress a. Congress can immediately terminate the emergency by joint resolution or b. If it does not act immediately, Congress must meet every six months to consider whether to terminate the emergency 3. Proclamation starts the clock on the one-year time limit on an emergency, unless its termination is otherwise specified in the proclamation or the President seeks extension (see # 5 below) 4. During the emergency, the President can exercise “special powers” that are already designated as such in the United States Code (for example, to federalize large airports), so long as he identified the powers he wanted to invoke in a. The original proclamation or b. Executive orders issued during the emergency 5. Emergency terminates a. on the date stated in the proclamation or b. by a joint resolution of Congress or c. on the anniversary of the proclamation, unless i. within 90 days prior to the anniversary date, the President issues a notice that the emergency must continue, publishes it in the Federal Register and transmits it to Congress ii. which starts the process over

Chapter 3 l The Reach of Congressional Power  43

FIGURE 3-1  Proclamation 7463.

On September 14, 2001, President George W. Bush signed Proclamation 7463, which declared a national emergency in the aftermath of the September 11 attacks by Al-Qaeda on the United States (see Fig. 3-1). The NEA was the first comprehensive legislation to pull together the ground rules for exercising federal power during emergencies, but it was not the last. In 1977, Congress enacted the International Emergency Economic Powers Act (IEEPA), which authorizes the President to impose controls on international economic transactions in which Americans are involved as one of the powers available to him during a declared national emergency.

44  THE LAW OF EMERGENCIES

The NEA can be invoked in many different kinds of emergencies: it is an all-hazards law. Congress has also enacted laws that deal with particular types of events, such as natural disasters. We will analyze the most important of these—the Stafford Act—in detail in Chapter 11. Finally, in the wake of September 11, Congress enacted a number of laws designed to prevent and respond to a terrorist attack, including the PATRIOT Act and other laws that expanded the powers of law enforcement. The most significant of post-9/11 statutes for the structure of government was the Homeland Security Act, which created a new Cabinet Department, the Department of Homeland Security. In Chapter 5, we will examine that particular department in some detail, and use it as the springboard for exploring some of the most important principles of administrative law.

COMPARATIVE EMERGENCY LAW Many nations have provided authority either in their constitutions or laws for the government to exercise special powers during an emergency. Examples are shown in Table 3-1.

Table 3-1  Procedure for Declaring Emergencies in Various Countries Country

Source of Law

Canada

Emergencies Act

Germany

United Kingdom

Levels of Emergency

War International threat Public order Public welfare Emergency Acts Defense-related (constitutional emergencies and statutory International tension components) Domestic uprising Natural catastrophes Civil Contingencies War Act Serious terrorist threat Event threatening serious damage to human welfare of the environment

Who Can Declare

Termination

Prime Minister

After 90 days, unless extended by the PM or revoked by the PM or Parliament Bundestag or when emergency conditions cease

Bundestag [Parliament]; if nation attacked, defense emergency automatic Monarch After 7 days unless Privy Council Prime extended by Parliament Minister

A Focus on France In recent years, France has relied extensively on its national emergency laws. After the terrorist attacks in Paris in November 2015, in which 130 people were killed and hundreds more wounded, President Francois Hollande declared a formal state of emergency. Under French law, a state of emergency allows police to make house arrests and conduct searches without a warrant, seize weapons even if legally owned, enforce curfews, and engage in surveillance without a court order.

Chapter 3 l The Reach of Congressional Power  45

Like the three other countries in the above chart, French law provides for several distinct types of emergency response: a “state of siege,” in the event of threat from war or insurrection; a grant of “extraordinary powers” to the President when “the proper functioning of the constitutional public authorities is interrupted;” and a “state of emergency,” when there is imminent danger from “grave attacks on the public order” or a “public calamity.” The 2015 declaration marked the first time that authorities had sought a nation-wide state of emergency status since the 1960s, when police obtained expanded powers in an effort to suppress Algerian independence. An initial declaration of a state of emergency requires prior consultation between the President and the Constitutional Council (France’s highest court) and may last for only 12 days unless extended by Parliament. Although each extension must have a sunset date, the President may seek repeated extensions. In late 2015 and 2016, Parliament extended the state of emergency in 3-month installments. After Parliament extended the state of emergency into 2016, both the United Nations Human Rights Commissioner and Human Rights Watch called on France to tread more carefully lest the emergency law lead to widespread abuses of human rights in the name of security. The Paris Bar Association also adopted a resolution criticizing the repeated extensions of a state of emergency. Parliament issued a report in May 2016 revealing that police had conducted more than 3500 warrantless raids since the previous November, and 69 persons were then being held under house arrest.

“A Supermajoritarian Escalator” for the United States? Professor Bruce Ackerman of Yale Law School has proposed that Congress enact what he called “an emergency constitution” (even though it was actually a proposed statute). Referring to September 11, Professor Ackerman stated that “we panicked the first time terrorists struck and we will panic the next time.” He argued that the nation needs a stronger bulwark than it has to prevent enactment of “repressive laws that ease our anxiety by promising greater security”—only to fail when a future attack takes a different form, thus setting off demands for yet more repression. The core of Professor Ackerman’s idea is the enactment of laws that would create what he calls a “super-majoritarian escalator” to allow for intensified short-term security measures while making it difficult to adopt permanent laws that curtail individual liberty in harsh ways. Here is how it would work. Presidents would be authorized to declare an emergency on their own authority only for a week or two while Congress is considering the matter. Emergency powers would then automatically lapse unless a majority of both houses votes to continue them; this vote would be valid for 2 months. After those 2 months, the President must then return to Congress for reauthorization, and this time a supermajority of 60 percent would be required. After 2 months more, the supermajority will be set at 70 percent, and then 80 percent for every subsequent 2-month extension. What do you think of this proposal? In what ways does it differ from the NEA? From French law?

46  THE LAW OF EMERGENCIES

Critical Thinking Make a list of the most important factors to consider for assessing the strengths and weaknesses of the three foregoing models (the NEA, the supermajoritarian escalator, or the French approach) for emergency laws. Then outline your arguments for and against each.

The Legislative and Budgetary Process The process established in the NEA, with its back-and-forth between Congress and the President for the authorization of extraordinary powers, is highly unusual. The ordinary process for enacting legislation is much more deliberate (and often frustrating), and it governs all other federal emergency management and disaster relief laws. Of special importance is the budgetary process, also controlled by Congress, which has yet another, third process. The budget process is important because, in practice, the control of the federal government’s purse strings is perhaps the single most powerful tool that Congress has is to shape policy. As one example of how budget controls policy, consider the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (PKEMRA), enacted in the wake of the anthrax attacks of October 2001. This law authorized several billion dollars in public health spending to expand the national stockpile of emergency drugs, vaccines, and medical supplies and to provide grants to state and local governments for emergency preparedness planning. By providing these funds, PKEMRA enabled state and local health authorities to massively upgrade their preparedness and response capacities and, by enacting the eligibility criteria to receive the funding, shaped the emergency preparedness policy choices that were made throughout the nation. (Chapter 14 describes the kinds of policy mandates that resulted.) Does Congress have the authority under the Constitution to shape state and local policy through budget bills? See the section below on the Spending Power.

Nonbudget Bills With a few exceptions, legislation may be initiated in either Congressional chamber and ultimately must be passed in identical form by a majority of members of both chambers (51 in the Senate and 218 in the House) in order to go to the President for signature and to become law. Passage of a bill must occur within a time period during which there is no general election of new members. Because the makeup of the Congress (the entire House of Representatives and one-third of the Senate) is open to change every 2 years, each 2-year period is considered a distinct legislative cycle, somewhat confusingly also called a “Congress.” Every Congress consists of two 1-year sessions, beginning in January. If a bill is not passed within the time period of the Congress in which it has been introduced, the bill must be reintroduced in the next Congress (Fig. 3-2). When a bill is introduced (or “dropped”) in either chamber, the bill will be assigned a number based on its chronological place among all the bills introduced in that Congress. Thus the

Chapter 3 l The Reach of Congressional Power  47

FIGURE 3-2  H.R. 1081 (111th): To amend the Post-Katrina Emergency Management Reform Act of 2006. Source: https://www.govtrack.us/congress/bills/111/hr1081.

identical bill might be S. 35 in the Senate and H.R. 250 in the House. (If it fails to pass and is reintroduced in a new Congress, the same legislation will receive new numbers.) Once a bill is introduced, the House or Senate Parliamentarian refers the bill to one or more committees or subcommittees whose areas of concern relate to the substance of the proposed law. These are known as the “committees of jurisdiction.” The term “jurisdiction” is used to identify which committee has responsibility for ongoing oversight of the agency, including consideration of new bills related to that agency, and they usually have different names in each chamber. For example, the lead committees of jurisdiction for the Department of Homeland Security (DHS) are the Homeland Security and Government Affairs Committee in the Senate and the Homeland Security Committee in the House.

48  THE LAW OF EMERGENCIES

FIGURE 3-3  The Legislative Process.

Committees of jurisdiction are also known as “standing committees,” because they are presumptively permanent (although the members can vote to abolish, create, or change the names of standing committees). By contrast, each chamber also has “select committees,” created to study a particular topic and report back to the chamber. Select committees do not function as part of the general legislative process described below (Fig. 3-3). There is a Select Committee on Homeland Security in both the House and the Senate.

Homeland Security’s Committee Problem The term “committee of jurisdiction” may seem to imply that there is only one such committee for each Cabinet department, but that is not the case, especially for the Department of Homeland Security. Because it was created from the merger of 22 separate agencies, many of which reported to different committees and subcommittees in Congress, DHS began its bureaucratic life in 2003 with more than 100 committees of jurisdiction. There may be bipartisan agreement that this structure is unwieldy and wasteful, but there is also bipartisan recalcitrance by committee chairs to give up any share of the oversight role, which is generally accompanied by substantial influence over spending. Examples of the DHS Congressional logjam: The Federal Emergency Management Authority (FEMA) is part of DHS, but the primary oversight function for it in the House is split between the Homeland Security Committee and the Transportation and Infrastructure Committee. One of FEMA’s subunits—the National Flood Insurance Program—has entirely different committees of jurisdiction than either FEMA or its umbrella Cabinet department DHS. The National Flood Insurance Program is overseen by the Senate Committee on Banking, Housing, and Urban Affairs and by the House Committee on Financial Services. To DHS officials who must work with members of Congress, the landscape for legislation and oversight is a turf war run amok.

Chapter 3 l The Reach of Congressional Power  49

The leadership of the majority party in each house appoints the chair of each committee and subcommittee. The other party appoints the “ranking minority member” of each committee and each subcommittee, a position often referred to as “the ranking member.” Each committee and subcommittee includes a majority of members from the majority party. Once a bill has been referred to the appropriate committee (or subcommittee), the chair of that committee (or subcommittee) effectively controls the decision whether to move the legislation through the next stages. The committees of jurisdiction have broad powers, including consideration of bills that would change the substantive law (e.g., new provisions for prosecuting cyberhackers), create or continue programs and authorize budget amounts that can be spent on those programs (these are often referred to as authorization bills), and conduct oversight hearings if members wish to investigate actions taken by an agency in the Executive Branch. An authorization bill may establish a new federal program and set spending limits for it, but the program cannot begin until Congress appropriates the necessary funds, which is a separate stage. (See “Budget Bills” below.) The vast majority of the hundreds of bills that are introduced never progress past the stage of committee referral. Those that move forward are set for a hearing. Hearings are usually highly scripted events with carefully selected witnesses. Nonetheless, because hearings provide all committee members with the opportunity to ask questions in a public forum, dramatic or surprise exchanges sometimes occur during hearings. As a result, there is often media coverage of hearings on the most controversial legislation. If a bill is simple and noncontroversial, a committee may proceed directly to a vote on the bill. The session in which this occurs is called a “markup.” Members can seek amendments during the markup session. For most bills, there is an interim period, after the hearings, during which significant revisions of the bill can occur behind the scenes. The bill goes to markup after these negotiations conclude—or it may never get to markup if agreement cannot be reached on language acceptable to a majority of the members of the committee. The markup session ends with a vote by the committee on whether to send the bill forward for a vote by the full chamber. Committee staff members prepare a report summarizing the arguments for adoption; there may also be a minority report written by the bill’s opponents. Voting the bill out of committee, however, does not guarantee that it will get to the floor. In the House of Representatives, bills must first receive clearance from the House leadership, in the form of a “rule” from the House Rules Committee, before a floor debate and vote can be scheduled. In the Senate, the Majority Leader schedules when bills will be considered; there is no Rules Committee in the Senate. Once a bill does reach the floor, further amendments may be offered during debate. A transcript of the floor debate, together with committee reports, are published in the Congressional Record (Fig. 3-4). A bill must go through the entire process in each chamber (with a few, rare exceptions). If and when the bill finally makes its way through the second chamber, the language has usually changed from that adopted in the first chamber. At this point, the two bills will be sent to a “conference committee,” consisting of members of the relevant committees of jurisdiction of each chamber.

50  THE LAW OF EMERGENCIES

FIGURE 3-4  Sample title page of congressional record.

In the conference committee, the appointed Senators and Representatives will negotiate how to resolve the differences between the two versions of the bill. If the compromise process is successful, the conference committee will issue a new, usually blended version of the bill (called a “conference report”) and send it back to each chamber for final approval. Unless the conference report passes both chambers, the bill is dead. After passage in identical form by both houses of Congress, the final step before the bill can become law is its transmission to the President. The President has 10 days in which to sign or veto legislation. The President also can do nothing at all, which is tantamount to a veto and

Chapter 3 l The Reach of Congressional Power  51

thus is referred to as a “pocket veto.” If the bill is signed, it becomes law. If it is vetoed or the President does nothing, it goes back to Congress. At that point, Congress has one final option: a two-thirds majority vote in both houses will override a presidential veto.

The Terminology of Legislation The United States Code (“Code” or “U.S.C.”) contains the general and permanent laws of the United States, arranged into 54 broad “titles” or chapters according to subject matter. ● Statute refers to legislation that establishes a new law that is permanent until amended or repealed. A statute becomes part of the U.S. Code upon its enactment. ● The U.S. Code is an example of the category of statutory law (as opposed to case law or regulations). Each state also has its own statutory law. ● Act refers to any bill or joint resolution that has been enacted. All statutes are acts, but not all acts are statutes. For example, an Act to Designate [X date] as [Y holiday] may be passed by both houses of Congress and signed by the President, but it concerns a special occasion rather than a permanent part of federal law, and it will not be added to the U.S. Code. ● Authorization and appropriations bills are also acts, but not statutes. ●

Budget Bills Congress adopts the national budget in a process that is completely different from how it enacts other kinds of legislation. Each of the multiple steps is important because at each stage, decisions about cutting or adding funds for particular Executive Branch activities will powerfully shape policy. The process begins when departments and agencies develop their budget request for the following year. The fiscal year for the federal government runs from October 1 to September 30, and this initial budget proposal stage generally begins in the spring for next fiscal year. In other words, the planning begins a year and a half ahead of when the budget being planned would take effect. The internal budget requests are transmitted to the White House, specifically to a unit within the Office of the President called the Office of Management and Budget (OMB), which oversees the budget process for the entire Executive Branch. Based on these requests (which lead to extensive communications between the agencies and OMB) and the President’s decisions as to priorities, OMB develops an comprehensive proposed budget. The President submits this proposed budget to Congress, usually in early February, shortly after the State of the Union Address. One reason that this annual speech is so closely watched is that Presidents use it to signal their budget priorities. The President’s budget is then sent to the Budget Committee of each chamber. The House and Senate Budget Committees also receive input from the Congressional Budget Office, which was established to provide Congress with a source of expertise comparable to OMB. The Budget Committees hold hearings and jointly adopt a concurrent resolution that

52  THE LAW OF EMERGENCIES

allocates spending authority for the next fiscal year and aggregate spending and revenue levels for 5 years. The concurrent resolution goes to each chamber for a vote; there can be amendments during floor debate, and a joint committee negotiates differences. As with other bills, the goal is for both chambers to adopt the same language (and numbers). Unlike other legislation, however, the budget resolution is not sent to the President for signature. Instead, after a concurrent resolution is finalized, it moves to the Appropriations Committees in each chamber. The budget resolution sets only the limits for spending by each Department. During the appropriation process, sums are allocated for agency activities within the confines of the budget’s limits. Specific Appropriations Committees in the House and Senate consider the bills, usually in conjunction with the “views and estimates” of the committees of jurisdiction for the respective agencies. Again, the process involves hearings, markups, committee votes, and floor consideration. When the President has signed all the appropriations bills, the government has a budget for the coming fiscal year.

Timeline of Budget Process in a Sample Year (Assuming No Delays) April 2017

Summer 2017 Fall 2017 Last Monday in November Winter 2017–2018 Early February 2018 Mid to late February 2018 March to April 15, 2018 Summer 2018 September 2018 October 1, 2018

Cabinet Departments and Agencies beginning planning their proposed budgets for 2018–2019, for which they will request inclusion in the President’s budget Departments and Agencies submit their budget requests to OMB Proposed budgets are reviewed by OMB “Passback Day”—OMB returns budgets to Departments and Agencies, negotiations begin between agencies and OMB OMB prepares the final President’s budget proposal, which identifies priorities State of the Union Address President’s proposed budget is made public and submitted to the Budget Committee in each chamber Deliberations by Budget Committees and passage of a joint resolution Deliberations by Appropriations Committees Enactment of budget by both chambers; signature by President Beginning of fiscal year 2019; new budget takes effect

As you doubtless know from the news, there are years when Congress has not met its deadlines for enacting a budget. It is this failure that creates the risk of a government shutdown; without finalization of the appropriations process, government activities must cease. (There are exceptions for certain essential functions.) Alternatively, Congress may enact a “Continuing Resolution,” which extends the budget allocations for the year ending into the next fiscal year.

Congressional Power under the Spending Clause and Federal Grants to States When we think of federal government spending, we often think of the expenses of the federal government itself. A substantial chunk of the federal budget, however, is allocated for grants

Chapter 3 l The Reach of Congressional Power  53

to state and local governments. Roughly 15 percent of the federal budget flows to state and local governments through grants. From the state perspective, federal grants comprise from one-quarter to one-third of state expenses. As is evident from these figures, state governments could not continue to operate at their current levels of service provision without the monies received through the Congressional budget process. When Congress appropriates funds for various programs that provide grants to the states, it also establishes requirements for how the programs operate. (See discussion in Chapter 5.) In the area of education, for example, there is no explicit authority in Article I for Congress to set student achievement criteria for schools. Yet schools may be required to demonstrate that their students meet certain test levels in order to qualify for federal funding. This allows Congress to exercise a great deal of control indirectly that it could not exercise directly. Theoretically, states could decline federal funding and not have to satisfy the eligibility criteria. Practically, however, the possibility of obtaining federal funds will provide enough incentive that state and local agencies, such as school systems, will adopt and strive to meet the national goals. Should it be constitutional for the Congress to exercise this kind of indirect power over states? The Supreme Court answered that question in the following case:

South Dakota v. Dole United States Supreme Court, 1987 Chief Justice Rehnquist delivered the opinion of the court. Petitioner South Dakota permits persons 19 years of age or older to purchase beer containing up to 3.2% alcohol. In 1984 Congress enacted 23 U.S.C. § 158, which directs the Secretary of Transportation to withhold a percentage of federal highway funds otherwise allocable from States “in which the purchase or public possession … of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.” The State sued in United States District Court seeking a declaratory judgment that § 158 violates the constitutional limitations on congressional exercise of the spending power. … Here, Congress has acted indirectly under its spending power to encourage uniformity in the States’ drinking ages. … [W]e find this legislative effort within constitutional bounds even if Congress may not regulate drinking ages directly. The Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” Art. I, § 8, cl. 1. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” [This Court has] determined that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Thus, objectives not thought to be within Article I’s “enumerated legislative fields,” may nevertheless be attained through the use of the spending power and the conditional grant of federal funds. The spending power is of course not unlimited, but is instead subject to several general restrictions articulated in our cases. The first of these limitations is [that, in] considering whether

54  THE LAW OF EMERGENCIES

a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously …, enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Third, our cases have suggested … that conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs.” … Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion. Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective. When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact. … Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power. …

Critical Thinking As we saw in Chapter 1, it is a bedrock principle of American law that Congress can legislate only on those subjects as to which it has powers that are enumerated in Article I of the Constitution. The Supreme Court implicitly acknowledges in Dole that Congress has no Article I power to directly order the states to set certain speed limits on the highways within their jurisdiction. Is invocation of the Spending Clause power too easy a way around the doctrine of limited, enumerated powers? Or is it necessary for a 21st century national government to function? What are the deeper policy interests at stake in this case? Although the Court in Dole accords broad deference to decisions by Congress on how to exercise its spending powers, it also identifies three criteria by which to judge whether Congress has crossed the line. What are they? Are they sufficient? What if the penalty under this program had been to lose all federal funds for highway construction?

Summary Every 4 years, candidates for President love to make campaign promises that they will repeal law X or pass law Y or cut one category of taxes or increase other taxes. In truth, although Presidents obviously have great impact on lawmaking, they cannot do any of these things. Only Congress can enact or repeal a law or change the nation’s tax structure. But it would sound silly

Chapter 3 l The Reach of Congressional Power  55

for a Presidential hopeful to promise dramatic change and then acknowledge that nothing will happen unless the committees of jurisdiction, the budget committees, and the appropriations committees can be persuaded to cooperate. Who would rush to vote for someone who conditioned promises of grand reform on the tedium of Congressional processes? That slow process is the reality, however. From this chapter, you have learned about the specific process of interaction between the head of state and the legislature during an emergency, both in the United States and elsewhere. In addition, you have gotten a taste of what is required for nonemergency federal laws to change, as well as a more concrete sense of how important the Congressional power over appropriations can itself change policy through a carrot rather than a stick. You should be starting to understand the dynamics of how the legislative and executive branches interact in the field of emergency management.

Important Terms Apportionment Authorization and appropriation ● Committee of jurisdiction ● Conference report ● Continuing resolution ● Dropping a bill ● Mark-up ● Pocket veto ● Proclamation of emergency ● Ranking member ● ●

Review Questions 1. What is the difference between the National Emergencies Act and the International Emergency Economic Powers Act? 2. How does the Federal Register differ from the Congressional Record? 3. What time period does the word “Congress” signify? 4. What is the difference between a select committee and a standing committee? 5. Explain how budget decisions determine broad policy questions. What are the advantages and disadvantages of effectively coordinating many state policies through the Congressional budget process?

4 The Judiciary Introduction The U.S. judiciary system perfectly embodies the principles of separation of powers and federalism. Regarding separation of powers: Just as Article I of the Constitution established the legislative branch (Congress) and Article II established the executive branch headed by the President, Article III established the third branch: the federal court system. Article III literally creates “the judicial power of the United States.” Federalism also is central to American courts, reflected in the fact that there are actually two judicial systems in the United States: federal and state. (The constitution of each state establishes the state’s court system.) The organization of this chapter is based on the two broad social functions served by courts: first, providing a process for dispute resolution, and second, generating the creation of new law through its resolution of particular disputes. In the first two parts of the chapter, you will learn the nuts and bolts of how courts are organized in the United States, both by hierarchy and by geography. In the third part, you will learn the basic principles governing the relationship between the federal and state courts. The final part of the chapter explains the second function of courts: the creation of law. The concept behind the first function—dispute resolution—is self-evident, but the details can be complicated. Judges and juries decide concrete cases between two (or sometimes more) parties. If a party to the dispute fails to comply with the judgment that is entered at the end of the case, the party who won the judgment can force compliance through mechanisms such as an order finding the recalcitrant party in contempt of court, which can result in steep fines or even incarceration. The complexities of dispute resolution often arise from the fact that each state and territory has an independent judicial system with separate powers, discussed later. The second function—the creation of law—grows out of the product of all those disputes that are resolved: an evolving set of principles that are applied to future cases which raise the same or similar questions of law and which arise from a context of similar facts. This kind of law is referred to as “case law,” as distinct from “statutory law,” the product of the legislative processes described in Chapter  3. Although only a modest introduction to an enormous branch of law, this chapter should help you in reading and understanding the court decisions found throughout the book. The keys to unlocking that understanding lie in the concepts of precedent and analogical reasoning which you will study in the final section of this chapter.

Federal Courts: Structure, Geography, and Jurisdiction Colonial courts were established before the Revolutionary War and continued afterwards as state court systems. During the period of the Articles of Confederation, those remained the only courts. One of the prime motivators for the abandonment of the confederacy system and The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00004-8 © 2018 Elsevier Inc. All rights reserved.

57

58  THE LAW OF EMERGENCIES

FIGURE 4-1  Levels of the Federal Court System http://courts.mi.gov/education/learning-center/educator-resources/curriculum/PublishingImages/MICourtSystem.jpg.

adoption of the Constitution was the need to establish a unified nation-wide court system. The framers wanted at least some judges to develop expertise in interpreting and applying national laws, who could also handle disputes between states or between a state and the United States without being too closely linked to political leaders in any specific state. There was also concern about judges needing to curtail possible jury prejudice against outsiders, for example, the risk that a Virginian would be treated unfairly in a Connecticut court. At that time, the overwhelming bulk of disputes concerned land titles, property, contracts, or personal injuries. These were essentially local matters that the state courts could handle well. Thus the Framers took a minimalist approach. Article III created the federal judicial system but named only one specific court—the U.S. Supreme Court—and left it to the Congress to establish as many “such inferior courts” as it might deem necessary. In the Judiciary Act of 1789, the first Congress created the basic framework for the full federal court system that continues through today (Fig. 4-1). The first level of the federal judiciary consists of the trial courts, called District Courts, of which there are 94. It is at this level that a case is filed, a judge rules on preliminary motions that test whether there is a viable claim, and the parties may reach a settlement or, if not, a trial is conducted. Each state has at least one District Court; more populous states have several. There is only one District Court for Connecticut, for example, while California has Northern, Southern, and Central Districts and New York has Northern, Southern, Eastern, and Western Districts. Each District consists of a group of judges, which can number as few as two in the smallest states and as many as 60 in California. The nationwide total of District Court judges as of 2014, the most recent date for which we have data, is 627. When each case is filed, it is assigned to one District Court judge. The U.S. Courts of Appeals are organized by regions called Circuits. You may have heard an appellate court referred to by number, for example, as the “Fifth Circuit.” A case that has been appealed from a District Court is assigned to a panel of three Court of Appeals judges, who will decide issues raised by the party that lost the judgment in the trial court. At this level, there are

Chapter 4 l The Judiciary  59

FIGURE 4-2  Circuits in Federal Courts of Appeals.

oral arguments based on briefs, but there are no trials or testimony from witnesses. The number of judges in each circuit varies. The Ninth Circuit is the largest with 29 judges, while only 6 judges comprise the full bench of the First Circuit. The nationwide total of Circuit Court judges as of 2014 was 169. In addition, there is one additional Court of Appeals—the Federal Circuit— with 12 judges, which hears appeals in cases involving patents, international trade, and certain claims against the government (Fig. 4-2). A party that loses at the trial court level can always appeal to the Court of Appeals for the circuit in which the District Court is located. The U.S. Supreme Court, by contrast, may or may not hear an appeal from the circuit level. The docket of the Supreme Court is limited primarily to cases in which different circuits have reached opposite results on the same legal issue or cases raising issues that the Court considers to be especially important. Review in the Supreme Court is sought in approximately 7000 cases each year, but typically is granted in only about 75. If the Court accepts a case (called granting a writ of certiorari, which means “bring up the case” in Latin), the parties file briefs, and the nine Justices of the Court hear the oral argument. (Transcripts and audio recordings of the arguments are available at www. supremecourt.gov.) One obvious question that arises when there are two court systems in the same country is which cases go into which system. In addition to creating the federal judiciary, Article III also sets limits on the subject matter jurisdiction of federal courts. “Subject matter jurisdiction” refers to the legal authority to decide cases involving certain issues or claims.

60  THE LAW OF EMERGENCIES

Article III 1. The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges … shall hold their Offices during good Behaviour…. 2. The judicial Power shall extend to all Cases … arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; … to Controversies to which the United States shall be a Party; —to Controversies between two or more States; between Citizens of different States … and between the Citizens [of a State], and foreign States, Citizens or Subjects….

Operating within this language in Article III, Congress has delineated various categories of cases that may be brought in federal courts. The three most common types of federal civil (as opposed to criminal) cases are as follows: Federal Question—Cases in which the plaintiff asserts a claim that is based on a provision of federal law (the Constitution, a statute, or a regulation) or a treaty ● Diversity of Citizenship—Cases in which the plaintiff(s) and defendant(s) are citizens of different states and more than $75,000 is at stake ● Federal Government Party—Cases in which the United States is either a plaintiff or defendant. ●

In addition to the provisions of the Judiciary Act, which has been amended many times since 1789, Congress has sometimes built the question of federal court jurisdiction into the underlying statute that creates the particular right of action. For example, federal antitrust and securities regulation laws specify that cases to enforce those laws can be brought only in federal court. Notice that these categories of federal court subject matter jurisdiction are extremely limited. Thousands upon thousands of lawsuits—including breach of contract, most corporate law, and negligence claims—fall outside the boundaries of federal court jurisdiction unless all the plaintiffs live in a different state than all the defendants or unless a specific federal statute grants jurisdiction. The state court system provides the default venue for where a person can file a lawsuit on almost any claim. Only cases that fall within the specific criteria for federal courts can be filed in the federal system. Criminal cases operate on a parallel track. If the accused is charged with violation of a federal criminal law (generally tied to interstate or international activity), the prosecutor in the U.S. Attorney’s office for that District brings the case in the federal system. Each U.S. Attorney’s office is a satellite of the U.S. Department of Justice and reports to the Attorney General. Federal court judges are nominated by the President and confirmed by the Senate. Unless impeached for wrongdoing and convicted by the Senate, every federal judge has life tenure and cannot be removed from office.

State Courts: Structure and Jurisdiction State court systems all have trial courts and at least one level of appellate review. The highest level court in each state is known as “the court of last resort.” In some states, the system is considerably more complex than the three-level pyramid of federal courts, sometimes involving

Chapter 4 l The Judiciary  61

different routes of appeal for criminal versus civil cases, or for specific categories of claims. This is true, for example, in Texas (Fig. 4-3). The names and functions of the various components of state court systems vary enormously, and can be confusing. In New York, legislators gave the name of “Supreme Court” to the lowest

FIGURE 4-3  Texas State Court System.

62  THE LAW OF EMERGENCIES

State courts come in many names Supreme court Criminal division

Superior court

Small claims court

Court of appeals

Family court

District court Appellate division

FIGURE 4-4  Examples of State Court Names.

level trial courts. The highest court in New York is its Court of Appeals. In other states, trial courts may be called “Superior Courts” or the “Court of Common Pleas.” In addition, many states have specialized courts such as Family Court, Small Claims Court, or Probate Court (Fig. 4-4). The nonspecialized trial-level courts in state systems are referred to as courts of general subject matter jurisdiction because they have authority over many more types of claims than do federal courts. They are the default option where almost anyone can bring almost any type of claim. With a few exceptions, all federal law claims can be filed in state court as well as in federal court. But the reverse is not true: it is rare that claims based on state law can be filed in federal court (generally only when there is an anchor federal law claim in the case or when the parties satisfy the requirements for diversity of citizenship). Note that so far we have been discussing the jurisdiction of federal versus state court systems at the moment that a lawsuit is filed. Is there any other point at which a case can enter the federal system? Yes, two. First, if a plaintiff chooses to file in state court but the case satisfies the jurisdictional criteria for federal court, then the defendant usually can “remove” the case to the federal District Court in the District where the case was filed. The idea behind this provision is that if either party has a right to have the case heard by a federal judge, the law provides a mechanism for the defendant to exercise her right. (The plaintiff always gets the first shot at choosing where to file a case.) Second, if a case goes all the way up the state court system and involves a question of federal law, the party who lost in the state’s highest court can seek review in the U.S. Supreme Court of the federal question. In this way, although state courts are empowered to adjudicate claims based on federal law, the possibility is preserved that the nation’s highest federal court will have the final word on any question of federal law. The U.S. Supreme Court does not settle questions of purely state law.

Chapter 4 l The Judiciary  63

One of the most important points of difference between federal and state court systems is the processes for selection of judges. Federal judges are appointed and have life tenure. State court judges are often elected, a practice that has drawn much criticism but which endures. Consider the misgivings expressed by former Supreme Court Justice Sandra O’Connor:

Judicial Selection … We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. See … Bright & Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases (citing statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty than are judges who do not run for election). Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so. Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can require substantial funds. See Scotland, Financing Judicial Elections, 2000: Change and Challenge (reporting that in 2000, the 13 candidates in a partisan election for 5 seats on the Alabama Supreme Court spent an average of $1,092,076 on their campaigns); American Bar Association, Report and Recommendations of the Task Force on Lawyers’ Political Contributions, pt. 2 (July 1998) (reporting that in 1995, one candidate for the Pennsylvania Supreme Court raised $1,848,142 in campaign funds, and that in 1986, $2,700,000 was spent on the race for Chief Justice of the Ohio Supreme Court). Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns, a limitation unrelated to judicial skill, the cost of campaigning requires judicial candidates to engage in fundraising. Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups. [A] study by the public interest group Texans for Public Justice found that 40 percent of the $9,200,000 in contributions of $100 or more raised by seven of Texas’ nine Supreme Court justices for their 1994 and 1996 elections “came from parties and lawyers with cases before the court or contributors closely linked to these parties”. Even if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary. See Greenberg Quinlan Rosner Research, Inc., and American Viewpoint, National Public Opinion Survey Frequency Questionnaire (describing survey results indicating that 76 percent of registered voters believe that campaign contributions influence judicial decisions [and] that two-thirds of registered voters believe individuals and groups who give money to judicial candidates often receive favorable treatment); Barnhizer, “On the Make”: Campaign Funding and the Corrupting of the American Judiciary (relating anecdotes of lawyers who felt that their contributions to judicial campaigns affected their chance of success in court).

64  THE LAW OF EMERGENCIES

Despite these significant problems, 39 States currently employ some form of judicial elections for their appellate courts, general jurisdiction trial courts, or both. Judicial elections were not always so prevalent. The first 29 States of the Union adopted methods for selecting judges that did not involve popular elections. [B]eginning with Georgia in 1812, States began adopting systems for judicial elections. From the 1830s until the 1850s, as part of the Jacksonian movement toward greater popular control of public office, this trend accelerated, and by the Civil War, 22 of the 34 States elected their judges. By the beginning of the 20th century, however, elected judiciaries increasingly came to be viewed as incompetent and corrupt, and criticism of partisan judicial elections mounted. In 1906, Roscoe Pound gave a speech to the American Bar Association in which he claimed that “compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench.” In response to such concerns, some States adopted a modified system of judicial selection that became known as the Missouri Plan (because Missouri was the first State to adopt it for most of its judicial posts). Under the Missouri Plan, judges are appointed by a high elected official, generally from a list of nominees put together by a nonpartisan nominating commission, and then subsequently stand for unopposed retention elections in which voters are asked whether the judges should be recalled. If a judge is recalled, the vacancy is filled through a new nomination and appointment. This system obviously reduces threats to judicial impartiality, even if it does not eliminate all popular pressure on judges. The Missouri Plan is currently used to fill at least some judicial offices in 15 States. … Republican Party of Minnesota v. White (2002).

Intersystem Dynamics How do the federal and state court systems co-exist? Generally, quite well, probably because there are reasonably clear rules of engagement. Clarity is necessary because there are cases in which a federal court will be adjudicating a question of state law, usually when the case falls within the criteria for jurisdiction based on diversity of citizenship; and similarly, state courts adjudicate questions of federal law because most federal claims can be brought in either federal or state courts. It would be a nightmare if one could obtain different outcomes, based on different interpretations of the same question of law, in the two systems. The Supreme Court acted to end this danger with its 1938 decision in Erie Railroad Co. v. Tompkins. There the Court held that federal courts would be bound by state court interpretations of any state law questions in the case. In that situation, the goal is for the federal court to produce the same result that the parties would obtain in the relevant state court. Likewise, if a state court is hearing a question of federal law, it is bound by the prior interpretations of federal courts on the same question. What if there is a conflict between federal and state law? The Supremacy Clause in Article VI leaves no uncertainty: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall

Chapter 4 l The Judiciary  65

be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” For example, if Congress enacts a law prohibiting taxation of goods that are shipped between states, a state law seeking to impose a state tax on goods shipped into or out of its borders would be pre-empted, or declared invalid, because of its conflict with a federal law. Justice Stevens described the relationship this way: Federal law is enforceable in state courts…because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislatures. The Supremacy Clause [of the Constitution] makes those [federal] laws “the Supreme Law of the Land,” and charges state courts with coordinate responsibility to enforce that law… “[T]he courts of the two jurisdictions are not foreign to each other, nor to be treated as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.” Howlett v. Rose (1990), quoting Claflin v. Houseman (1876)

A few examples: Paul (P) purchases a used car from Don’s Dealership (DD), a local business. P soon realizes that his car payments are much higher than he had expected and discovers that the loan he took from DD was extracting a higher interest rate than had been stated in the document he signed. P learns from his lawyer that there are both state and federal laws that prohibit consumer fraud, and he could sue under either or both. 1. Can P sue D in state court on both claims? Yes—of course he can sue there based on the state consumer protection law, but he can also include his federal law claim because state courts have general (broad) subject matter jurisdiction. Like most federal laws, the enforcement of this one (we will assume) has not been explicitly limited to federal court, so it can be litigated in state court as well. 2. Could P sue D in state court only on the federal law claim? Yes, for the same reason. 3. Can P sue D in federal court on both claims? Yes—of course he can sue there based on the federal law, but he can also include the state law claim because there is an anchor federal law question. (If federal courts could not adjudicate state law claims in cases like this, there would be enormous inefficiency: P would be forced to bring two suits, one in each system.) 4. Can P sue D in federal court only on the state law claim? No—if there is no anchor claim based on federal law, the federal court would not have jurisdiction. Would the answer be different if P lived in Virginia and DD was located across the state line in North Carolina? Possibly, because there might be federal court jurisdiction based on diversity of citizenship if the amount in controversy was more than $75,000. 5. Assume that P v. D is filed in federal court, and P wins on both claims. Under the federal antifraud law, the cap on damages is $50,000. Under the state law, P is entitled to money damages up to $100,000. Can the federal judge extend the federal cap to the state law claim because the case is in federal court? No—the relief available is considered part of the substance of the claim, and federal courts must apply substantive state law in awarding remedies available under state law.

66  THE LAW OF EMERGENCIES

Case Law, Precedent, and Stare Decisis Disputes produce lawsuits, and lawsuits produce law. Exactly how does that process happen? When a jury or a judge announces a verdict, no “new law” is being made because verdicts are simply a declaration of which party won. Verdicts do not include a statement that explains the reasoning behind the outcome (why a certain party won), and thus do not create precedent. But when a judge, or a panel of judges, issues an opinion applying previous law to a new set of facts presented by the case under consideration, then the evolutionary development of legal principles is underway. The product is embodied in court opinions and is called case law.

What is stare decisis? The literal translation of this Latin phrase is “to stand by that which is decided.” The principle behind the phrase is essential to the evolution of law. The Supreme Court in Planned Parenthood v. Casey summarized the necessity of stare decisis and the criteria for identifying those rare instances when a precedent should be overruled: …[T]he very concept of the rule of law … requires such continuity over time that a respect for precedent is, by definition, indispensable. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was, for that very reason, doomed… [To determine whether a prior ruling should be overturned, we ask] whether [the decision’s] central rule has been found unworkable; whether [overruling it would cause] serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law’s growth in the intervening years has left [the case’s] central rule a doctrinal anachronism discounted by society; and whether [its] premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.

The most common kind of reasoning process used by judges in applying precedent is reasoning by analogy. The process involves researching whether there is binding precedent that answers the question at hand, which often leads to the identification of cases that have declared a rule to be applied in future cases and in which the facts are similar but not identical in their facts to the present case. For example, if silence or omission in a loan agreement as to the total cost of a loan (including fees and interest) constitutes fraud, should the use of very tiny type in the parts of the contract that specify the extra costs also be considered fraud? Or is complete omission required, not just tiny type? In determining which if any prior case is sufficiently analogous to control the outcome in a new case, the judge will assess whether the differences or similarities are most important in light of the overall purposes and functions of the particular principle of law. What is key is that material facts must be similar, i.e., facts that are essential to the legal question. Materiality depends on context. The fact that A and B are half brothers may be inconsequential in a breach of contract case, for example, but essential to the resolution of a lawsuit over the validity of a will.

Chapter 4 l The Judiciary  67

A Hypothetical Case George and Margarita Washington own two homes that border on the Nirvana National Park. They live in one in one of the houses and George’s parents live next door in the other house. A huge fire broke out in the park several miles away from their homes. The U.S. Firefighter Service (USFS) responded to the scene, and the Washington family members could see USFS aircraft flying in the distance. On the third night of the fire, George and Margarita heard a horrible noise and saw an explosion as a USFS plane crashed into their second house. Believing that George’s parents were inside, they were horrified as well as surprised. George ran toward his parents’ home as Margarita frantically telephoned for help. As George approached the burning home, he saw his parents returning in their car from a trip into the nearby town. He collapsed in relief. Neither George nor Margarita suffered physical harm that night, but they experienced nightmares for several weeks, and each sought psychological care. George and Margarita later learned that the plane crash was the result of errors by a USFS pilot. A lawyer told them that they could sue the USFS in federal court based on the following federal statute: Any party injured by the activities of the USFS in the control of fires on federal land shall be entitled to recover damages to the same extent as is permitted by the law of the state where the land is located; and such party shall have the right to bring suit against the USFS. Nirvana National Park and the Washingtons’ homes are all located in the state of Hamilton. On what basis will there be subject matter jurisdiction in a federal court? Here, there are two bases: the plaintiffs’ claims arise from a federal statute (federal question jurisdiction) and the defendant USFS is a federal agency.

The lawyer explained that three court decisions were critical to their success. First, in a 1999 case, Adams v. Quincy, the Hamilton State Supreme Court ruled that its state law would allow a cause of action for an injury known as intentional infliction of emotional distress, which occurs when someone intentionally engages in actions that cause foreseeable emotional harm to another person. ● In 2003, the (imaginary) U.S. Court of Appeals for the Thirteenth Circuit applied the Adams v. Quincy rule in a firefighting case called Madison v. Monroe, holding that the USFS was liable for intentional infliction of emotional distress when its communications office knowingly issued a false statement to the public warning that a particular neighborhood was in “extreme danger,” even though it was not, because the USFS official in charge was irritated that some residents had made fun of USFS color-coded alert announcements. As a result, there was panic among the residents. In its decisions in Adams, the Thirteenth Circuit said, “While the law normally requires that there must have been physical injury ●

68  THE LAW OF EMERGENCIES

for a plaintiff to recover damages, in part because emotional injuries alone are difficult to quantify, many states, including Hamilton, have allowed recovery also when there has been intentional, egregious action by a defendant resulting in emotional harm.” ● In 2014, the Hamilton State Court of Appeals (the state’s intermediate level appeals court) extended the scope of state law to include recovery for negligent as well as intentional acts that caused emotional distress. This case was called Jackson v. Pierce, and it involved a car accident. In Jackson, the court allowed recovery by the parents of a child who was hit when a driver failed to look behind his car before backing up. The decision cited Adams and stated that “The principle of allowing damages to a party who has experienced genuine and severe emotional anguish should not be limited to situations where the harm was intentional, but should also include negligently inflicted distress, because in both situations the party not at fault has suffered an injury that the law recognizes.” George and Martha sued USFS, but U.S. District Court Judge Tanya Jefferson ruled against them. Judge Jefferson’s opinion concluded that the Court of Appeals opinion in Madison v. Monroe was binding on her as a federal district judge, and the court in Madison had specifically limited its ruling to a situation of intentional infliction of distress. Judge Jefferson held that she was not bound by Jackson v. Pierce because it was not a ruling of Hamilton’s highest court. In this instance, Judge Jefferson has used one of the most common forms of judicial reasoning. First, she has reviewed the Adams-Madison line of cases and reached a conclusion about the limits established by the claim of infliction of emotional distress. Here, she found that the definitive articulation of state law limited legal recognition of injury to intentional acts by a defendant. Second, she has reviewed the facts presented by the case before her and concluded that the new situation is most closely analogous to the Jackson case, because the pilot’s actions were negligent rather than intentional. Thus she concluded that the state law of Hamilton did not recognize a cause of action for what happened to the Washingtons. Reasoning by analogy depends on the determination that the case at hand is similar in its material facts to the prior case law. Is the trial judge’s opinion in the Washington case an example of precedent? Yes, but barely—it is the weakest form of precedent because it is from the lowest level court in the federal system. The authority of this judge is the same as, and no more than, that of any of the other District Court judges. Her opinion has no binding effect on the other District Court judges. In fact, a case presenting essentially the same facts could come before a different trial judge the next day, and that judge could rule in the opposite way from the first judge. If the first judge’s opinion is especially well reasoned, however, the second judge may elect to follow it. The first opinion is not binding, but it may be persuasive. To continue the story, let us return to the point when District Court Judge Jefferson ruled for the Defendant, the USFS. The Washingtons file an appeal, and the case goes to the U.S. Court of Appeals for the Thirteenth Circuit. The Washingtons are now called the Appellants, because they are seeking review, and the USFS is the Appellee. Both sides file briefs, and the case is scheduled for oral argument before a three-judge panel.

Chapter 4 l The Judiciary  69

Imagine that the Thirteenth Circuit rules for the Washingtons, thus reversing the court below. In so doing, the Court of Appeals disagreed with its own prior ruling in Madison. The new Thirteenth Circuit opinion said in part, “Although the Jackson case, decided after Madison, never reached the Hamilton State Supreme Court, we believe that the Jackson opinion is controlling because the state’s highest court later adopted the same underlying principle of allowing recovery for negligently caused emotional harm in a 2016 case that involved malpractice by a therapist. Even though malpractice is technically a different form of injury with somewhat different elements, it can be considered a variation on negligence. Therefore, we find that Hamilton state law allows recovery for emotional distress caused by negligent, as well as intentional, acts.” So in addition to reversing a lower court, the panel also overruled a prior decision from the same level as itself. Is this new decision precedent? Yes. Each Court of Appeals ruling is binding on all District Court judges in the same circuit. Is it binding on District Court judges in a different circuit? No, although it may be persuasive for judges outside this circuit. What if the lawyer for USFS believes that the Washingtons were incredibly lucky and drew the only three judges in this Circuit who would agree with them? USFS would be likely to seek what is called rehearing en banc (before all the judges in a Circuit). If a majority of Thirteenth Circuit judges wish to rule on a particular case, the decision from the three-judge panel will be vacated, meaning essentially that it is erased as a precedent. The case will be reheard before all judges in the Circuit, and the ruling from the en banc court will substitute for the panel’s earlier ruling. Back to our hypothetical—Imagine that rehearing en banc is denied, so the ruling of the Thirteenth Circuit in favor of the Washingtons remains. The final stage will come if USFS seeks certiorari in the U.S. Supreme Court. The labels change again in the Supreme Court: USFS now becomes the Petitioner (because it is petitioning for review) and the Washingtons are known as the Respondents. The opinion of the U.S. Supreme Court will of course be precedent and will bind all courts on the particular question decided. The Supreme Court will usually either affirm or reverse the decision of the Court of Appeals, though it sometimes will vacate the decision and send the case back to the lower level court for further factual development or for consideration of questions that the Supreme Court finds were improperly left out. Multiply the set of cases—from Adams to Madison to Jackson to Washington—many times over, and that will give you a sense of how the substance of law can develop and grow over time, through the process of adjudication.

Summary As you use this book, you will read many court decisions—some from federal courts, some from state courts. This chapter lays the groundwork for you to know why some come from one system and some from the other, as well the structural differences between the two systems,

70  THE LAW OF EMERGENCIES

such as jurisdiction and the methods by which judges are selected. Most important, you should now understand how courts play an important not only in settling particular disputes but also in creating broader principles of law that will apply in future cases.

Important Terms Anchor federal claim Case law ● Diversity of citizenship ● Federal question ● Missouri Plan ● Precedent ● Reasoning by analogy ● Stare decisis ● Subject matter jurisdiction ● Supremacy Clause ● ●

Review Questions 1. How would you summarize the principles that are served by how the law allocates jurisdiction between federal and state court systems? 2. Critics sometimes assert that judges are engaged in “judicial activism.” Given what you know about how precedent can build on precedent, how would you define judicial activism?

5 The Domestic Use of Military Troops Introduction Since the founding of the Republic, the use of active duty military forces against Americans on our home soil has been a contentious issue. There is a strong tradition in the United States of civilian control of the military and of concern about the presence of a large standing army. One can see the Framers’ response to these concerns in the architecture of the Constitution. The Constitution provides that the President and Congress share control over the uniformed armed services by virtue of the different responsibilities assigned to each. In addition, the federal government shares control over the militia (now the National Guard) with the states. Article I, Section 8, assigns to Congress the power to raise, support, organize, and regulate the armed forces; to provide for the “calling forth” of the militia to execute federal law and suppress insurrections; and to provide for organizing, arming, and disciplining the militia while they are deployed in federal service. Article II, Section 2, specifies that the President shall be commander-in-chief of the armed forces and also provides the President with the general power to “take care that the laws be faithfully executed.” The Third Amendment specifically bars any branch of government from ordering that civilians allow soldiers to be quartered in their homes during peacetime. What began as state militias are now state National Guard units. The National Guard is a uniformed service that governors can use to keep and restore order and protect lives and property. Although governors have the authority to call out the National Guard when needed, the Constitution forbids states from maintaining standing armies (Article I, Section 10). In turn, however, it makes the federal government responsible for protecting states against invasion and insurrection (Article IV, Section 4). If there is foreign attack on American soil or if there is a domestic rebellion, the President can deploy military units to respond. The President also has the power to “call forth” National Guard units for assignment either in the United States or elsewhere, if needed.

History During the nation’s first century, the federal government’s use of military forces within the United States was episodic. In 1794, President Washington mobilized the militia (there were too few regular army troops available) to suppress the Whiskey Rebellion in Pennsylvania. Washington’s authority to send troops was the Calling Forth Act, which was written to expire after 3 years. In 1807, Congress passed the Insurrection Act delineating the situations in which the President could send federal troops to quell domestic disorders. The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00005-X © 2018 Elsevier Inc. All rights reserved.

71

72  THE LAW OF EMERGENCIES

In the years just before and after the Civil War, troops were sometimes deployed as part of civilian posses—to enforce the Fugitive Slave Law before the war and to enforce Reconstruction laws afterward. The source of this power was the Judiciary Act of 1789, under which U.S. marshals could call up members of the state militia to serve in a posse. [The U.S. Marshals Service is a unit within the Justice Department that is responsible for providing security in the federal courts and for serving papers and enforcing court orders, including making arrests.] The word “posse” is a shortened version of the Latin phrase “posse comitatus,” (pronounced com-ee-tay’-tus), which Black’s Law Dictionary defines as n. [Latin “power of the county”] A group of citizens who are called together to help the sheriff keep the peace or conduct rescue operations. Black’s Law Dictionary 2004

One example of the use of the militia for law enforcement purposes was to assist marshals at the polls in the 1876 presidential election. After the election, disputes arose over votes in

FIGURE 5-1  Ohio Governor James M. Cox’s Proclamation of Martial Law in 1913.

Chapter 5 l The Domestic Use of Military Troops   73

South Carolina, Louisiana, and Florida, where it was alleged that the military presence intimidated voters into supporting Republican candidates, including Rutherford B. Hayes. When the final count showed that Democrat Samuel Tilden had won the popular vote, a deal was struck in which southern Democrats agreed to deliver electoral votes sufficient to elect Hayes in return for a promise that federal troops would leave the southern states. Reconstruction ended, and less than 2 years later, Congress enacted the Posse Comitatus Act. Fig. 5-1 is an example of a proclamation of martial law. In this example, martial law was declared in 1913 in the aftermath of a flood.

The Posse Comitatus Act United States Code, Title 18 Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than 2 years, or both. Acting pursuant to the “expressly authorized” language, Congress has passed several laws that create exceptions to the PCA. The two most significant are the Insurrection Act, discussed later, and the Stafford Act, which deals with responses to natural disasters and is the subject of Chapter 9. Congress has also enacted authorization for the armed forces to share equipment with civilian law enforcement agencies. In addition to these specific exceptions, government officials and legal scholars have debated the extent to which the President may have “inherent authority” to use troops to enforce the law within the United States when emergency conditions seem to require an immediate response. (Recall President Truman’s unsuccessful invocation of “inherent powers” to seize the steel mills that was the subject of the Youngstown case in 1952.) Congress reaffirmed the PCA, although in hedged language, when it enacted the Homeland Security Act in 2002. Section 886 of that law is titled “sense of Congress reaffirming the continued importance and applicability of the [PCA].” It provides as follows: Homeland Security Act United States Code, Title 6 Section 466 (a) FINDINGS—Congress finds the following: … (3) The Posse Comitatus Act has served the Nation well in limiting the use of the Armed Forces to enforce the law. (4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency. … (b) SENSE OF CONGRESS.—Congress reaffirms the continued importance of [the PCA], and it is the sense of Congress that nothing in this Act should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws.

74  THE LAW OF EMERGENCIES

Critical Thinking Consider the language in (a)(3) above, beginning “or the President determines.” Is this a proper codification of the concept that the President has indeterminate “inherent powers”? What are the checks and balances on this kind of authority?

The Scope of the PCA What does the PCA mean when it prohibits “us[ing] any part of the Army or Air Force”? For starters, why only those two services? As a practical matter, the Navy may be less likely to be engaged in domestic law enforcement. For the sake of consistency, though, Defense Department regulations extend the prohibitions of the PCA to the Navy (of which the Marine Corps is a part). The Coast Guard is different, however. From its inception, the Coast Guard has been a uniformed service dedicated to domestic use; it has never been part of the Defense Department. It was originally part of the Treasury Department and is now part of the Department of Homeland Security (see Chapter 3). Thus there is no barrier to using the Coast Guard for law enforcement purposes. Whether the PCA applies to the National Guard depends on whether the Guard units in question have been federalized. (See sidebar.)

The Wounded Knee Standoff One of the most controversial modern uses of military troops for law enforcement purposes occurred in 1973, when President Nixon ordered Army and National Guard troops to end the occupation by Lakota Sioux Indians of a building on their reservation. In the 3-month confrontation that followed, two people were killed and one paralyzed by gunfire. The bitterness aroused by this action was deepened by the fact that it occurred at Wounded Knee, S.D., where Army troops in 1890 massacred more than 200 Sioux, including dozens of women, children, and elders. The litigation that followed the 1973 Wounded Knee standoff included criminal prosecutions of those thought to have led the group seizing federal property. The defendants countered that government officials themselves had violated the law by violating the PCA. A series of court decisions distilled the following three tests for whether the PCA had been violated: Whether civil law enforcement agents made direct active use of military personnel to execute the laws; Whether the use of military personnel pervaded the activities of civilian law enforcement actions; Whether military personnel subjected civilians to exercises of military power that were regulatory, prescriptive, or compulsory in nature.

●

●

●

A second category of cases arising from the 1973 Wounded Knee incident were civil suits brought by Native Americans for violation of their constitutional rights. The following case was one in which residents of the reservation sued federal officials. The appeals court reversed the trial court’s dismissal of their complaint.

Chapter 5 l The Domestic Use of Military Troops   75

Bissonette v. Haig U.S. Court of Appeals, 1985 This is an action for damages caused by defendants’ alleged violations of the Constitution of the United States. The complaint alleges, among other things, that the defendants seized and confined plaintiffs within an “armed perimeter” by the unlawful use of military force, and that this conduct violated not only a federal statute but also the Fourth Amendment. The use of federal military force, plaintiffs argue, without lawful authority and in violation of the Posse Comitatus Act, was an “unreasonable” seizure of their persons within the meaning of the Fourth Amendment. [The Fourth Amendment prohibits unreasonable searches and seizures.] We hold that the complaint states a claim upon which relief may be granted. The judgment of the District Court, dismissing the complaint with prejudice for failure to state a claim, will therefore be reversed, and the cause remanded for further proceedings consistent with this opinion. I. This case arises out of the occupation of the village of Wounded Knee, South Dakota, on the Pine Ridge Reservation by an armed group of Indians on February 27, 1973. On the evening when the occupation began, members of the Federal Bureau of Investigation, the United States Marshals Service, and the Bureau of Indian Affairs Police sealed off the village by establishing roadblocks at all major entry and exit roads. The standoff between the Indians and the law-enforcement authorities ended about ten weeks later with the surrender of the Indians occupying the village. In February 1975, the plaintiffs, most of whom at the time of the occupation were residents of the Pine Ridge Indian Reservation, brought this action in the District Court for the District of Columbia alleging that the defendants, who were military personnel or federal officials, conspired to seize and assault them and destroy their property in violation of several constitutional and statutory provisions. … II. In their amended complaint, plaintiffs … claim that they were unreasonably seized and confined in the village of Wounded Knee contrary to the Fourth Amendment and their rights to free movement and travel. … This case comes to us on appeal from a dismissal for failure to state a claim, and we therefore accept for present purposes the factual allegations of the complaint. … … We believe that the Constitution, certain acts of Congress, and the decisions of the Supreme Court embody certain limitations on the use of military personnel in enforcing the civil law, and that searches and seizures in circumstances which exceed those limits are unreasonable under the Fourth Amendment. … Reasonableness is determined by balancing the interests for and against the seizure. Usually, the interests arrayed against a seizure are those of the individual in privacy, freedom of movement, or, in the case of a seizure by deadly force, life. Here, however, the opposing interests are more societal and governmental than strictly individual in character. They concern the special threats to constitutional government inherent in military enforcement of civilian law. … Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital

76  THE LAW OF EMERGENCIES

Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces. The interest in limiting military involvement in civilian affairs has a long tradition beginning with the Declaration of Independence and continued in the Constitution, certain acts of Congress, and decisions of the Supreme Court. The Declaration of Independence states among the grounds for severing ties with Great Britain that the King “has kept among us, in times of peace, Standing Armies without Consent of our Legislature … [and] has affected to render the Military independent of and superior to the Civil power.” These concerns were later raised at the Constitutional Convention. Luther Martin of Maryland said, “when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.” … … [I]n Laird v. Tatum, statements the [Supreme] Court made … reaffirm … limitations [found in the Constitution and in statutes]: The concerns of the Executive and Legislative Branches … reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation’s history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied. The governmental interests favoring military assistance to civilian law enforcement are primarily twofold: first, to maintain order in times of domestic violence or rebellion; and second, to improve the efficiency of civilian law enforcement by giving it the benefit of military technologies, equipment, information, and training personnel. These interests can and have been accommodated by acts of Congress to the overriding interest of preserving civilian government and law enforcement. [Under the Insurrection Act] … the President may call upon the military only after having determined that domestic unrest makes it “impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings,” and he may do so only after having issued a proclamation ordering the insurgents to disperse. Those steps were not taken here. We believe that the limits established by Congress on the use of the military for civilian law enforcement provide a reliable guidepost by which to evaluate the reasonableness for Fourth Amendment purposes of the seizures and searches in question here. Congress has acted to establish reasonable limits on the President’s use of military forces in emergency situations, and in doing so has circumscribed whatever, if any, inherent power the President may have had absent such legislation. This is the teaching of Youngstown Sheet & Tube Co. v. Sawyer. There the President attempted to justify his seizure of the steel mills on grounds of inherent

Chapter 5 l The Domestic Use of Military Troops   77

executive power to protect national security. Justice Black, writing for the Court, rejected this assertion of executive authority, and in addition four of the five judges concurring in the Court’s opinion or judgment wrote separate opinions expressing the view that Congress had precluded the exercise of inherent executive authority by specifically refusing to give the President the power of seizure. …The legal traditions which we have briefly summarized establish that the use of military force for domestic law-enforcement purposes is in a special category, and that both the courts and Congress have been alert to keep it there. In short, if the use of military personnel is both unauthorized by any statute, and contrary to a specific criminal prohibition, and if citizens are seized or searched by military means in such a case, we have no hesitation in declaring that such searches and seizures are constitutionally “unreasonable.” We do not mean to say that every search or seizure that violates a statute of any kind is necessarily a violation of the Fourth Amendment. But the statute prohibiting (if the allegations in the complaint can be proved) the conduct engaged in by defendants here is, as we have attempted to explain, not just any act of Congress. It is the embodiment of a long tradition of suspicion and hostility towards the use of military force for domestic purposes. Plaintiffs’ Fourth Amendment case, therefore, must stand or fall on the proposition that military activity in connection with the occupation of Wounded Knee violated the Posse Comitatus Act. … [M]ilitary involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids, or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. In addition, … the mere furnishing of materials and supplies cannot violate the statute. … [T]he use of military personnel, planes, and cameras to fly surveillance and the advice of military officers in dealing with the disorder—advice, that is, as distinguished from active participation or direction—[these are also permitted]. The question becomes, then, whether the present complaint alleges more than these kinds of activities. … We of course have no way of knowing what plaintiffs would be able to prove if this case goes to trial, but the complaint, considered simply as a pleading, goes well beyond an allegation that defendants simply furnished supplies, aerial surveillance, and advice. It specifically charges that “the several Defendants maintained or caused to be maintained roadblocks and armed patrols constituting an armed perimeter around the village of Wounded Knee…” Defendants’ actions, it is charged, “seized, confined, and made prisoners [of plaintiffs] against their will…” These allegations amount to a claim that defendants’ activities, allegedly in violation of the Posse Comitatus Act, were “regulatory, proscriptive, or compulsory,” in the sense that these activities directly restrained plaintiffs’ freedom of movement. No more is required to survive a motion to dismiss. We hold, therefore, that plaintiffs’ first set of claims, alleging an unreasonable seizure in violation of the Fourth Amendment because of defendants’ confinement of plaintiffs within an armed perimeter, does state a cause of action. …

Critical Thinking What are the principles behind the longstanding American aversion to sending federal troops to maintain order? Are they still important?

78  THE LAW OF EMERGENCIES

The Dual Role of the National Guard The National Guard has a unique dual mission that consists of both federal and state roles. The President can activate the National Guard for participation in federal missions, either domestically or abroad. When federalized, the Guard units are commanded by the commander of the theater in which they are operating and, ultimately, by the President as commander in chief. When not federalized, the only federal mission of the National Guard is to maintain properly trained and equipped units that are available for prompt mobilization. For state missions, the governor, through the state adjutant general, commands Guard forces. Each state and territory has its own National Guard. The governor can call the National Guard into action during local or statewide emergencies, such as storms, fires, earthquakes, civil disturbances, or to support law enforcement. When National Guard units are under state command, they are not subject to the PCA and therefore can be used in law enforcement activities. The Militia Act of 1903 reorganized and renamed the various state militias into what is today the National Guard. The Army National Guard is part of the United States Army, and comprises almost

half of the Army’s available combat forces and approximately one-third of its support organization. The Air National Guard is part of the United States Air Force. The Army and Air Force National Guards are trained and equipped as part of their respective services, and use the same ranks and insignia. The Army and Air National Guards are very similar to the Army Reserve and Air Force Reserve, respectively. The primary difference lies in the level of government to which they are subordinated. The Army Reserve and Air Force Reserve are subordinated to the federal government while the National Guards are subordinated to the various state governments, except when called into federal service.

Weapons of Mass Destruction More recently, public fear about an attack using chemical, biological, or nuclear weapons has increased. In response, Congress enacted the following statute, geared to a scenario involving military assistance to federal law enforcement authorities, especially the Federal Bureau of Investigation:

EMERGENCY SITUATIONS INVOLVING CHEMICAL OR BIOLOGICAL WEAPONS OF MASS DESTRUCTION UNITED STATES CODE, TITLE 10 (382) (a) In general.—The Secretary of Defense, upon the request of the Attorney General, may provide assistance in support of Department of Justice activities relating to the enforcement of [criminal laws] during an emergency situation involving a biological or chemical weapon of mass destruction. Department of Defense resources, including personnel of the Department of Defense, may be used to provide such assistance if— (1) the Secretary of Defense and the Attorney General jointly determine that an emergency situation exists; and

Chapter 5 l The Domestic Use of Military Troops   79

(2) the Secretary of Defense determines that the provision of such assistance will not adversely affect the military preparedness of the United States. (b) Emergency situations covered.—In this section, the term “emergency situation involving a biological or chemical weapon of mass destruction” means a circumstance involving a biological or chemical weapon of mass destruction— (1) that poses a serious threat to the interests of the United States; and (2) in which— (A) civilian expertise and capabilities are not readily available to provide the required assistance to counter the threat immediately posed by the weapon involved; (B) special capabilities and expertise of the Department of Defense are necessary and critical to counter the threat posed by the weapon involved; and (C) enforcement of [criminal laws] would be seriously impaired if the Department of Defense assistance were not provided. (3) (A) Except as provided in subparagraph (B), the regulations may not authorize the following actions: (i) Arrest. (ii) Any direct participation in conducting a search for or seizure of evidence related to a violation of [criminal law]. (iii) Any direct participation in the collection of intelligence for law enforcement purposes. (B) The regulations may authorize an action described in subparagraph (A) to be taken under the following conditions: (i) The action is considered necessary for the immediate protection of human life, and civilian law enforcement officials are not capable of taking the action. …

Critical Thinking Compare the language of the act you have just read to the language of the Insurrection Act below. How does this law arguably alter the Insurrection Act’s requirements?

The Insurrection Act As noted above, the Insurrection Act predates the PCA, and thus was at least part of what Congress intended by its reference in the PCA to statutes that explicitly authorize deployment of federal troops for law enforcement purposes within the United States. The Insurrection Act has been invoked a number of times, including to enforce court orders desegregating schools and in response to widespread looting and violence. The most recent controversy over the Insurrection Act grew out of the failure of relief efforts immediately after Hurricane Katrina in 2005. Congressional hearings and agency reports sought to identify where and when the mistakes had been made, and some suggested that the President hesitated to send federal troops because he lacked clear authority under the PCA. At the same time, there was also widespread concern about and planning for a possible influenza pandemic reaching the United States. The Washington Post reported that Bush administration

80  THE LAW OF EMERGENCIES

officials wanted to insure that military units would be available for enforcement of quarantine orders, should that become necessary. In that context, Congress adopted an amendment to the Insurrection Act that diminished the control of governors over National Guard units and expanded the number of situations in which the President could deploy military forces to include natural disasters and health emergencies. The amendment was a small part of a much larger authorization bill, and passed without debate. When they realized what had occurred, all 50 governors urged Congress to repeal the new language. A year later, Congress did precisely that. The Insurrection Act now provides as follows:

The Insurrection Act United States Code, Title 10 § 331. Aid to State governments Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. §332. Use of militia and armed forces to enforce Federal authority Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. §333. Interference with State and Federal law The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. §334. Proclamation to disperse Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.

Chapter 5 l The Domestic Use of Military Troops   81

Critical Thinking Diagram the different preconditions for troop deployment and the different functions that troops are authorized to serve. Under the current language of the Insurrection Act, could federal troops be sent to enforce a quarantine order?

Martial Law There is a great deal of uncertainty about precisely what “martial law” means. In the midst of the post-Katrina rescue efforts, White House Press Secretary Scott McClellan announced that “martial law has been declared.” He was incorrect, but not alone in his confusion. Many people conflate martial law with any deployment of troops to quell disturbances. As the Supreme Court noted, “the term ‘martial law’ carries no precise meaning. The Constitution does not refer to ‘martial law’ at all, and no Act of Congress has defined the term. “ Duncan v. Kahanamoku (1946). Martial law does have one particular meaning, though—it signifies that military authority has replaced civilian authority, and that civilian courts have been supplanted by military tribunals. When Hawaii was placed under martial law for almost 3 years after the attack on Pearl Harbor, for example, local police forces were under the command of the military, as were the local courts. Although there is a consensus that a President could declare martial law in the event of an extreme emergency, it has happened only rarely in American history. Given their powers under the Insurrection Act (above) and the National Emergencies Act (see Chapter 3), Presidents have not sought the extraordinary powers associated with martial law except during the Civil War and World War II. In every national emergency since World War II, including September 11, civil authority has continued to function and there has been no serious suggestion that the President should impose martial law. At the state level, the issue of martial law has received more attention. Governors have imposed martial law—which can then be enforced by the National Guard—with much greater frequency than have Presidents. The following provides a summary description: Martial law authority in the states is delegated by statute to the state executive. In total, eighteen states statutorily provide for the governor to declare martial law. While the statutes contain much boilerplate, there are enough differences among them to provide a spectrum of martial law authority in the states. At one end of the spectrum, Washington empowers its governor to proclaim “complete martial law,” [defined as the “subordination of all civil authority to the military.”] The governor must be of the opinion that the “re-establishment or maintenance of law and order may be promoted.” The only condition is the presence of troops in the specific localities under martial law. The statute even permits “military tribunals” to try persons apprehended in such a locality, and for the limited suspension of habeas corpus. At the other end of the spectrum, Iowa allows its governor to “establish a military district under martial law” only when the general assembly is convened, which provides a

82  THE LAW OF EMERGENCIES

certain oversight function. When the general assembly is not in session, the governor can establish martial law “only after the governor has issued a proclamation convening an extraordinary session of the general assembly.” Iowa also provides by statute that any justice of the Iowa Supreme Court may transfer a pending civil or criminal case from the district under martial law to any other jurisdiction for adjudication. The majority of states fall somewhere in between these two extremes. J. C. Weida, 2004

Review References in the press to “martial law” are often incorrect because a precise legal term can be used in a sloppy way to indicate a number of different situations. As an exercise, watch a film that depicts the imposition of martial law, such as “The Siege.” Can you identify which points of law are correct and which are incorrect?

Important Terms Federalizing the National Guard Martial law ● Militia ● Posse comitatus ● Regulatory, prescriptive, or compulsory ● U.S. marshals ● ●

Review Questions 1. Which federal laws establish restrictions on the use of the military and what are the public policy concerns behind such restrictions? 2. What is the difference between the Army, the Army Reserve, and the National Guard? 3. What are the distinctive conditions associated with martial law? 4. What is the relationship between the Posse Comitatus Act and the Insurrection Act? Between the Insurrection Act and martial law? 5. How is the National Guard different from other uniformed services? How is the Coast Guard different from other services? 6. When can National Guard troops lawfully be used for law enforcement? 7. What kinds of activities must military commanders avoid to insure that they do not violate the Posse Comitatus Act?

6 Federal Agencies Introduction Relatively speaking, only a tiny number of persons work in the White House and Congress. The great bulk of civilian federal government employees work for one of the Departments that comprise the Cabinet, many of which have regional offices throughout the United States, or for one of the independent agencies. In this chapter, you will first learn how the Executive Branch is structured. We will then examine in detail two of the main functions of Cabinet Departments: the promulgation of regulations that have the effect of law and the administration and oversight of grants to state and local governments. Agencies execute and enforce the laws that Congress passes. They act pursuant to the statutory mandates established for them by the legislature. Their functions may include promulgation of regulations that spell out more specifically the requirements for public or private entities that have been established by various laws, oversight of the provision of services, adjudication of certain disputes, direct law enforcement, disbursement of funds, oversight of entities that receive funds, investigation of complaints, award of licenses, and many other activities that cannot easily be categorized. They exercise substantial authority over individuals, private sector entities, and state and local governments.

Overview Although federal agencies are part of the Executive Branch, they are created by statutes, which have been enacted by Congress. The two traditional views of their role in government emphasize the relationship between agencies and either the Executive Branch or Congress. One view is that administrative agencies function as “transmission belts,” receiving inputs from Congress in the form of statutes and then implementing those legislative directives. The other view emphasizes the placement of agencies within the Executive Branch. The Secretary of each Department is nominated by the President and confirmed by the Senate. After confirmation, however, Congress plays no role in directly overseeing senior executive personnel. Heads of departments and their chief subordinates serve at the pleasure of the President. Currently there are 15 Cabinet departments that report to the President,1 most of which have component agencies, divisions, and bureaus. For example, the Department of Labor

1  In alphabetical order: Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs.

The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00006-1 © 2018 Elsevier Inc. All rights reserved.

85

86  THE LAW OF EMERGENCIES

has 18 subdivisions, including the Office of Safety and Health Administration, the Women’s Bureau, and the Bureau of Labor Statistics. The nomenclature can be confusing, because the term “agency” is often also used to describe a Cabinet Department—for example, references to the Department of Labor as an executive branch agency. (The Administrative Procedure Act defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”) Congress also has created a number of “independent agencies.” Senior members of such agencies must be nominated by the President and confirmed by the Senate, but Congress can place some limitation on the President’s power to control such individuals by requiring that their removal be based on “good cause.” The terms of service for Commissioners or Board members are also usually longer than the 4-year Presidential cycle, and hence members nominated by a Republican President may end up serving under a Democratic President and vice versa. The Equal Employment Opportunity Commission, the National Labor Relations Board, and the Securities and Exchange Commission are examples of this category of agencies. Often the position of Commission or Board Chair is one that is newly appointed by each incoming President, so as to assure that a majority of members are of the same party as the current President. Executive or independent, all agencies are created by Congressional mandate to carry out specific statutes. And while agencies often play an advisory role to Congress (and sometimes a leading role) in the formulation of law, the bulk of the agencies’ work takes place after a bill becomes law. Statutes passed by Congress vary in specificity and often are intended to define federal policy broadly, by establishing or ending programs. Congress has relied on agencies often, and increasingly since the mid-20th century, to fill the gaps in its laws, adding specific context and content to the general policies announced by the legislature. The rationale behind this system of agency rulemaking is that legislators generally lack the time and expertise necessary to determine how policies will be most effectively administered and enforced. Congress cannot anticipate and address every factor that might arise in the application of a certain policy, nor would it be an efficient use of legislators’ time to belabor the details of every programmatic decision. For these reasons, in many areas of law, Congress explicitly charges one or more departments, or agencies within a department, to make rules that will give specific content and detail to the laws that it passes.

DHS as Case Study Like the other Cabinet-level departments of the federal government, the Department of Homeland Security (DHS) is organized into subcabinet components. The structural model parallels that of the President and the Cabinet. The top official is the Secretary of DHS. There is a Deputy Secretary, just as there is a Vice President. The Department contains its own equivalent to the Cabinet, called the subcabinet, which is composed of Under Secretaries and Assistant Secretaries. Just as the President has various high-level staff members, so does a Cabinet Secretary. The office of the Secretary includes a chief of staff, a general counsel, and a chief financial officer, as well as speechwriters and various assistants. DHS is organized as shown in Fig. 6-1.

U.S. DEPARTMENT OF HOMELAND SECURITY SECRETARY Chief of Staff

Executive Secretary

DEPUTY SECRETARY Military Advisor

MANAGEMENT Directorate

SCIENCE & TECHNOLOGY Directorate

NATIONAL PROTECTION & PROGRAMS Directorate

POLICY

GENERAL COUNSEL

LEGISLATIVE AFFAIRS

PUBLIC AFFAIRS

INSPECTOR GENERAL

HEALTH AFFAIRS

INTERGOVERNMENTAL AFFAIRS

INTELLIGENCE & ANALYSIS

OPERATIONS COORDINATION & PLANNING

CITIZENSHIP & IMMIGRATION SERVICES OMBUDSMAN

CHIEF PRIVACY OFFICER

CIVIL RIGHTS & CIVIL LIBERTIES

DOMESTIC NUCLEAR DETECTION OFFICE

FEDERAL LAW ENFORCEMENT TRAINING CENTER

Chief Financial Officer

U.S. CUSTOMS & BORDER PROTECTION

U.S. CITIZENSHIP & IMMIGRATION SERVICES

U.S. COAST GUARD

FEDERAL EMERGENCY MANAGEMENT AGENCY

U.S. IMMIGRATION & CUSTOMS ENFORCEMENT

FIGURE 6-1  The U.S. Department of Homeland Security Organizational Chart 2015. Source: https://www.dhs.gov/sites/default/files/publications/Department%20Org%20Chart.pdf.

U.S. SECRET SERVICE

TRANSPORTATION SECURITY ADMINISTRATION

88  THE LAW OF EMERGENCIES

The Powers of Federal Agencies Rules issued by agencies are known as regulations. Regulations are much like statutes in that they specify actions that private or public entities can, must, or cannot take. All regulations are developed pursuant to a statute enacted by Congress, which delegates authority to an agency to deal with the many particular issues and concerns that arise in any field, and that are too numerous for Congress to address in all their details. Moreover, administrative agencies employ experts within their respective fields. One of the chief rationales for delegating authority to agencies is that they can draw on this expertise more efficiently than Congress would be able to. Regulations are general requirements generated in order to enforce statutes. They are not determinations of particular disputes. For example, a federal agency may issue a rule or regulation as to how nuclear waste should be disposed of. If a company that produces nuclear waste was fined for failure to comply with the rule and then challenged the fine, the agency’s administrative law judges would adjudicate that dispute. The adjudicatory decision would settle the question of whether that company was properly fined; it would not set regulatory policy (although it might be internal agency precedent). Federal courts hear the appeals from agency adjudications. Although they are an important component of administrative law, this book will not address this topic in detail because it tends to be of relatively less consequence in the field of emergency law. In addition to regulations, agencies also issue a range of more informal but important documents. These may take the form of interpretive letters, policy manuals, agency guidance memos, or internal agency handbooks. These may be interpretations of the statute that the agency is implementing or they may be interpretations of the agency’s own regulations. They are considered to be “subregulatory” because they do not go through the formal rulemaking process. Courts accord less deference to interpretative guidance than to regulations. Even though agencies have the authority to promulgate regulations that are effectively laws, they are subject to significant checks on their power. The first venue for review is the courts. Parties affected by the regulations can challenge the validity of the regulations in court as soon as the final version is published. The courts then must decide whether the regulations are substantively within the statutory authority that Congress gave the agency when it passed the law. The courts also will decide whether the agency has followed all the necessary procedural rules in promulgating the regulations. (The body of law that courts apply in deciding these two types of questions is called “administrative law.”) Even if agency regulations are not challenged immediately, parties subsequently affected by the regulations can challenge the regulations on both substantive and procedural grounds when the regulations are applied against them. Second, if Congress is unhappy with the policy content of regulations from a Department or agency, it has many possible courses of action from which to choose. It can repeal or amend the law pursuant to which the regulation was issued. It can arrange for Cabinet Secretaries and other high officials to testify before a Congressional committee, in public, and face hostile questioning. And, through the budget process, it can eliminate the funding for the Department or agency to implement certain regulations.

Chapter 6 l Federal Agencies  89

Coordination of Agencies Within the Executive Branch Within the Executive Branch, agency actions are coordinated and harmonized through the Office of Information and Regulatory Affairs (OIRA) (pronounced oh-eye-ra), which is part of the Office of Management and Budget (OMB), and which reports to the President. Using Executive Orders, presidents have established guidelines to be used by all agencies within the Executive Branch in weighing the benefits and disadvantages of possible regulations. President Clinton’s Executive Order 12866, still in use, requires review of any proposed regulation that will have a major impact on the economy, environment, health, communities or other government agencies, or that will raise novel legal or policy issues. In addition, Executive Order 12866 requires each agency to submit an annual regulatory plan, which describes each major regulation under consideration or in the development process. OIRA circulates these plans among all federal agencies, in order to identify possible conflicts between agency positions. OIRA also convenes a regulatory working group that meets several times a year to discuss coordination and to hear input from state and local government officials and from the public.

The Process of Rule-Making The Administrative Procedures Act (APA), enacted in 1946 to make the regulatory process uniform among government agencies, contains the ground rules for how agencies carry out their duties. The APA applies only to federal agencies, but every state has its own version of the APA for state-level regulations. Most of the state laws are closely modeled on the federal law. The APA defines “rule” as [T]he whole or a part of an agency statement of general or particular applicability and future effect, designed to implement, interpret, or prescribe law or policy … The Department of Justice expanded on this definition, and described rule-making as [A]gency action which regulates the future conduct of either groups of persons or a single person; it is essentially legislative in nature, not only because it operates in the future but because it is primarily concerned with policy considerations. Agencies are required to follow a detailed procedure—called “APA rule-making”—when they develop and issue these regulations. Basically, this procedure requires an agency to publish the “terms or substance” of a proposed rule or a “description of the subjects and issues involved.” In practice, most agencies publish a full set of proposed regulations in the Federal Register in a Notice of Proposed Rulemaking (NPRM). The agency also must publish the procedure it will use to accept comments on the proposed regulations. At a minimum, the agency must accept and consider written comments. If it wishes, the agency also may choose to hold public hearings on the proposed regulations.

90  THE LAW OF EMERGENCIES

What Is the Federal Register? Published every weekday, the Federal Register includes official documents of the White House and federal agencies, including proposed and final regulations and executive orders. It serves a function for the Executive Branch comparable to that served for Congress by the Congressional Record.

After “notice and comment,” the agency publishes its final set of regulations in the Federal Register. All agencies also make their regulations available on their websites. Once regulations have been promulgated under this procedure, they carry the full force of law and constitute an extremely important mechanism by which many laws are applied and implemented. The APA also provides that affected persons may challenge regulations in court if the agency failed to follow the required procedure. If litigation is undertaken, the courts will defer to an administrative regulation interpreting that law as long as the regulation is a reasonable interpretation of the law.

The Administrative Procedure Act U.S. Code Title 5 § 553. Rule making … (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— 1. a statement of the time, place, and nature of public rule making proceedings; 2. reference to the legal authority under which the rule is proposed; and 3. either the terms or substance of the proposed rule or a description of the subjects and issues involved. … (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. … (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date … (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. … § 706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

Chapter 6 l Federal Agencies  91

(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Law Professors Lisa Heinzerling and Mark Tushnet have described the functions served by this process as follows (Fig. 6-2): The notice-and-comment rule-making process is a hybrid of expertise and democratic accountability. The agency relies on its expertise to identify a problem to target and to develop a proposal. The public’s comments largely reflect a concern for public accountability, but also reflect a concern for expertise—both the possibility that the agency’s experts will have some sort of bias and the availability of different expertise outside the agency. And it can be argued that the reasoned elaboration with which the agency defends its rule following public comments itself serves as an accountability device.

APA Rule-making Congress creates a program and authorizes agency to regulate

Agency identifies need for a new rule

Agency drafts rule

Proposed rule is published in Federal Register

Agency considers comments

Public has at least 30 days to comment on proposed rule

FIGURE 6-2  APA rule making.

Final rule is published in Federal Register

Final rule is codified in next edition of the code of Federal Regulations

92  THE LAW OF EMERGENCIES

The APA in Action The following case illustrates the complexity that can arise during efforts by a federal agency to regulate in an evolving environment, against the resistance of—or in collaboration with— powerful stakeholders. It involves the question of which kinds of seatbelts and airbags should be required in automobiles. Its origins go back to the National Traffic and Motor Vehicle Safety Act of 1966, which directed the Secretary of Transportation to issue motor vehicle safety standards. Therein began the saga of regulatory action on passenger safety devices. You may take seatbelts for granted today, but disputes over these regulations continued through the administrations of five Presidents, as auto industry lobbyists and public interest advocates battled behind the scenes.

Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Insur. Co. United States Supreme Court, 1983 Justice White delivered the opinion of the Court.…… The regulation whose rescission is at issue bears a complex and convoluted history. Over the course of approximately 60 rulemaking notices, the requirement has been imposed, amended, rescinded, reimposed, and now rescinded again. Johnson Administration As originally issued by the Department of Transportation in 1967, Standard 208 simply required the installation of seatbelts in all automobiles. It soon became apparent that the level of seatbelt use was too low to reduce traffic injuries to an acceptable level. The Department therefore began consideration of “passive occupant restraint systems”—devices that do not depend for their effectiveness upon any action taken by the occupant except that necessary to operate the vehicle. Two types of automatic crash protection emerged: automatic seatbelts and airbags. The automatic seatbelt is a traditional safety belt, which when fastened to the interior of the door remains attached without impeding entry or exit from the vehicle, and deploys automatically without any action on the part of the passenger. The airbag is an inflatable device concealed in the dashboard and steering column. It automatically inflates when a sensor indicates that deceleration forces from an accident have exceeded a preset minimum, then rapidly deflates to dissipate those forces. The life-saving potential of these devices was immediately recognized, and in 1977, after substantial on-the-road experience with both devices, it was estimated by [the National Highway Traffic Safety Administration (NHTSA)—the component within the Department of Transportation responsible for this issue—] that passive restraints could prevent approximately 12,000 deaths and over 100,000 serious injuries annually. Nixon Administration In 1969, the Department formally proposed a standard requiring the installation of passive restraints. In 1970, the agency revised Standard 208 to include passive protection requirements,

Chapter 6 l Federal Agencies  93

and in 1972, the agency amended the standard to require full passive protection for all front seat occupants of vehicles manufactured after August 15, 1975. In the interim, vehicles built between August 1973 and August 1975 were to carry either passive restraints or lap and shoulder belts coupled with an “ignition interlock” that would prevent starting the vehicle if the belts were not connected. … In preparing for the upcoming model year, most car makers chose the “ignition interlock” option, a decision which was highly unpopular, and led Congress to amend the Act to prohibit a motor vehicle safety standard from requiring or permitting compliance by means of an ignition interlock or a continuous buzzer designed to indicate that safety belts were not in use. The[se] 1974 Amendments also provided that any safety standard that could be satisfied by a system other than seatbelts would have to be submitted to Congress where it could be vetoed by concurrent resolution of both houses. Ford Administration The effective date for mandatory passive restraint systems was extended for a year until August 31, 1976. But in June 1976, Secretary of Transportation William Coleman initiated a new rulemaking on the issue. After hearing testimony and reviewing written comments, Coleman extended the optional alternatives indefinitely and suspended the passive restraint requirement. Although he found passive restraints technologically and economically feasible, the Secretary based his decision on the expectation that there would be widespread public resistance to the new systems. He instead proposed a demonstration project involving up to 500,000 cars installed with passive restraints, in order to smooth the way for public acceptance of mandatory passive restraints at a later date. Carter Administration Coleman’s successor as Secretary of Transportation disagreed. Within months of assuming office, Secretary Brock Adams decided that the demonstration project was unnecessary. He issued a new mandatory passive restraint regulation, known as Modified Standard 208. The Modified Standard mandated the phasing in of passive restraints beginning with large cars in model year 1982 and extending to all cars by model year 1984. The two principal systems that would satisfy the Standard were airbags and passive belts; the choice of which system to install was left to the manufacturers. … Over the next several years, the automobile industry geared up to comply with Modified Standard 208. Reagan Administration In February 1981, however, Secretary of Transportation Andrew Lewis reopened the rulemaking due to changed economic circumstances and, in particular, the difficulties of the automobile industry. Two months later, the agency ordered a one-year delay in the application of the standard to large cars, extending the deadline to September 1982, and at the same time, proposed the possible rescission of the entire standard. After receiving written comments and holding public hearings, NHTSA issued a final rule that rescinded the passive restraint requirement contained in Modified Standard 208. …

94  THE LAW OF EMERGENCIES

The Department of Transportation … argues that under [the “arbitrary and capricious” standard], a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute. We do not disagree… The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. … The ultimate question before us is whether NHTSA’s rescission of the passive restraint requirement of Standard 208 was arbitrary and capricious. We conclude … that it was. We also conclude … that further consideration of the issue by the agency is therefore required. We deal separately with the rescission as it applies to airbags and as it applies to seatbelts. Airbags The first and most obvious reason for finding the rescission arbitrary and capricious is that NHTSA apparently gave no consideration whatever to modifying the Standard to require that airbag technology be utilized. Standard 208 sought to achieve automatic crash protection by requiring automobile manufacturers to install either of two passive restraint devices: airbags or automatic seatbelts. There was no suggestion in the long rulemaking process that led to Standard 208 that if only one of these options were feasible, no passive restraint standard should be promulgated. Indeed, the agency’s original proposed standard contemplated the installation of inflatable restraints in all cars. Automatic belts were added [in 1971] as a means of complying with the standard because they were believed to be as effective as airbags in achieving the goal of occupant crash protection. At that time, the passive belt approved by the agency could not be detached. Only later [in 1974] at a manufacturer’s behest, did the agency approve of the detachability feature—and only after assurances that the feature would not compromise the safety benefits of the restraint. Although it was then foreseen that 60% of the new cars would contain airbags and 40% would have automatic seatbelts, the ratio between the two was not significant as long as the passive belt would also assure greater passenger safety. The agency has now determined that the detachable automatic belts will not attain anticipated safety benefits because so many individuals will detach the mechanism. Even if this conclusion were acceptable in its entirety, standing alone it would not justify any more than an amendment of Standard 208 to disallow compliance by means of the one technology which will not provide effective passenger protection. It does not cast doubt on the need for a passive restraint standard or upon the efficacy of airbag technology. … Given the effectiveness ascribed to airbag technology by the agency, the mandate of the Safety Act to achieve traffic safety would suggest that the logical response to the faults of detachable

Chapter 6 l Federal Agencies  95

seatbelts would be to require the installation of airbags. At the very least this alternative way of achieving the objectives of the Act should have been addressed and adequate reasons given for its abandonment. But the agency not only did not require compliance through airbags, it did not even consider the possibility in its 1981 rulemaking. Not one sentence of its rulemaking statement discusses the airbags-only option. … The automobile industry has opted for the passive belt over the airbag, but surely it is not enough that the regulated industry has eschewed a given safety device. For nearly a decade, the automobile industry waged the regulatory equivalent of war against the airbag and lost-the inflatable restraint was proven sufficiently effective. Now the automobile industry has decided to employ a seatbelt system which will not meet the safety objectives of Standard 208. This hardly constitutes cause to revoke the standard itself. Indeed, the Motor Vehicle Safety Act was necessary because the industry was not sufficiently responsive to safety concerns. The Act intended that safety standards not depend on current technology and could be “technology-forcing” in the sense of inducing the development of superior safety design. If, under the statute, the agency should not defer to the industry’s failure to develop safer cars, which it surely should not do, a fortiori it may not revoke a safety standard which can be satisfied by current technology simply because the industry has opted for an ineffective seatbelt design. … Seatbelts Although the issue is closer, we also find that the agency was too quick to dismiss the safety benefits of automatic seatbelts. NHTSA’s critical finding was that, in light of the industry’s plans to install readily detachable passive belts, it could not reliably predict “even a 5 percentage point increase as the minimum level of expected usage increase.” … Rescission of the passive restraint requirement would not be arbitrary and capricious simply because there was no evidence in direct support of the agency’s conclusion. It is not infrequent that the available data does not settle a regulatory issue and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion. Recognizing that policymaking in a complex society must account for uncertainty, however, does not imply that it is sufficient for an agency to merely recite the terms “substantial uncertainty” as a justification for its actions. The agency must explain the evidence which is available, and must offer a rational connection between the facts found and the choice made. … In this case, the agency’s explanation for rescission of the passive restraint requirement is not sufficient to enable us to conclude that the rescission was the product of reasoned decisionmaking. …We start with the accepted ground that if used, seatbelts unquestionably would save many thousands of lives and would prevent tens of thousands of crippling injuries. … [T]he safety benefits of wearing seatbelts are not in doubt and it is not challenged that were those benefits to accrue, the monetary costs of implementing the standard would be easily justified. We move next to the fact that there is no direct evidence in support of the agency’s finding that detachable automatic belts cannot be predicted to yield a substantial increase in usage. The empirical evidence on the record, consisting of surveys of drivers of automobiles equipped with passive belts, reveals more than a doubling of the usage rate experienced with manual belts. Much of the agency’s rulemaking statement—and much of the controversy in this case—centers on the conclusions that should be drawn from these studies. The agency maintained that the

96  THE LAW OF EMERGENCIES

doubling of seatbelt usage in these studies could not be extrapolated to an across-the-board mandatory standard because the passive seatbelts were guarded by ignition interlocks and purchasers of the tested cars are somewhat atypical. … …NHTSA opines that “it cannot reliably predict even a 5 percentage point increase as the minimum level of increased usage.” But this and other statements that passive belts will not yield substantial increases in seatbelt usage apparently take no account of the critical difference between detachable automatic belts and current manual belts. A detached passive belt does require an affirmative act to reconnect it, but—unlike a manual seat belt—the passive belt, once reattached, will continue to function automatically unless again disconnected. Thus, inertia—a factor which the agency’s own studies have found significant in explaining the current low usage rates for seatbelts—works in favor of, not against, use of the protective device. Since 20 to 50% of motorists currently wear seatbelts on some occasions, there would seem to be grounds to believe that seatbelt use by occasional users will be substantially increased by the detachable passive belts. Whether this is in fact the case is a matter for the agency to decide, but it must bring its expertise to bear on the question. The agency is correct to look at the costs as well as the benefits of Standard 208. The agency’s conclusion that the incremental costs of the requirements were no longer reasonable was predicated on its prediction that the safety benefits of the regulation might be minimal. Specifically, the agency’s fears that the public may resent paying more for the automatic belt systems is expressly dependent on the assumption that detachable automatic belts will not produce more than “negligible safety benefits.” When the agency reexamines its findings as to the likely increase in seatbelt usage, it must also reconsider its judgment of the reasonableness of the monetary and other costs associated with the Standard. In reaching its judgment, NHTSA should bear in mind that Congress intended safety to be the preeminent factor under the Motor Vehicle Safety Act … ….[W]e … conclude that the agency has failed to supply the requisite “reasoned analysis” in this case.

Critical Thinking What was the basis for the Supreme Court’s finding that the agency’s decisions were arbitrary? What else should the agency have done to engage in “reasoned decision-making”?

Grant Administration and Review One of the major activities of federal agencies generally—and of the Department of Homeland Security specifically—is the administration of the millions of dollars in grants that Congress makes available to state and local governments and to private entities. FEMA, which is part of DHS, administers the Stafford Act grants, for example, which provide the bulk of recovery funds after the President issues a proclamation of national emergency (see Chapters  3 and 11). Many state and local officials spend a great deal of their day-to-day work time fulfilling the oversight duties that recipients of these grants must perform in order to retain their eligibility

Chapter 6 l Federal Agencies  97

for funds. State governments may function as both recipients and grantors, since states may use federal monies as sources of re-grants to local authorities. Most federal grants to states are formula grants, meaning that they are available to all states that meet the criteria for the grants. Congress establishes a formula—usually based on population—for dividing the funds that are appropriated for the particular grant program. Formula grants are often of significant duration, and they include both categorical and block grants. Categorical grant programs are, as the name suggests, more specific as to which programs they can be used for, whereas block grants tend to be amounts made available to states over which they have much more discretion. Disaster recovery grants might be categorical, covering relocation and housing costs, for example, or block grants allowing a state to use the funds for a variety of expenses related to disaster costs. A state might receive a certain amount of money as a block grant and then use it to fund smaller categorical grants to localities. Formula grants are often renewable. The other significant type of federal grants to states is called project, rather than formula, grants. Project grants establish a fund with a limited number of possible awards, for which states compete, with only a limited number of the eligible applicants chosen as recipients. A grant program for 15 pilot projects in a certain field would be an example of such an approach. Project grants tend to be of shorter duration than formula grants (Table 6-1). Grant oversight can take many forms because the eligibility criteria can be complex. Inspection and auditing responsibilities may accrue to state or local government administrators, to private service providers who are being paid or reimbursed under the terms of a grant, and to the individual, organizational, or corporate entities that are the beneficiaries of the funding. In all the categories, funds may be made available for future expenses or for reimbursement of expenses already incurred (Table 6-2). The following two cases give you a sense of how the mechanisms operate on the ground that are used by federal agencies to police whether grant funds are being spent properly. Table 6-1  Intergovernmental Grantmaking Type of Grant

Allocation Principle

Use by Grantee

Degree of Oversight

Examples

Categorical

Formula

Agency checks

Federal highway funding

General Revenue Sharing Fixed Amount

Formula

Within specific program area General, with limited restrictions Within designated program area

Project

Recipient selected through competitive application process

Formula

For specific purpose

Oversight Oversight; may include provision of technical assistance

Block grants such as the Community Development Block Grant program Grants for medical research

98  THE LAW OF EMERGENCIES

Table 6-2  Department of Homeland Security: Total Funds Awarded by Type—FY 2016 Award Type

Funds Awarded

Number of Transactions

Contracts Grants Loans Other Financial Assistance

$13,392,424,488 $9,779,451,465 $0 $3,387,433,508

85,877 11,814 13 7258

$3,387,433,508 $0

$9,779,451,465

$13,392,424,488

Contracts

Gaints

Loans

Other financial assistance

City of Newark, N.J. v. U.S. Dep’t of Labor U.S. Court of Appeals for the Third Circuit, 1993 Garth, Circuit Judge:… In the early 1980s the Comprehensive Employment and Training Act of 1973 was repealed by the Job Training Partnership Act of 1982 (“JTPA”). As the Department of Labor (“DOL”) wound down its CETA programs following the passage of the JTPA, DOL’s Office of the Inspector General (“OIG”) commissioned the certified public accounting firm of Lucas Tucker & Company to conduct an audit of the City of Newark’s CETA records. The audit, which focused on three CETA grants awarded to Newark in October of 1982, and which covered the period of August 1, 1983 through May 31, 1984, served two primary purposes: first, to determine whether Newark had taken corrective action pursuant to a prior “Special Purpose Review” and, second, to determine the balance of CETA funds remaining in Newark’s accounts in order to ensure that excess funds were returned to DOL. Due to Newark’s apparent failure to keep adequate records, the Tucker auditors could not reconcile the CETA records kept at the Mayor’s Office of Employment Training (“MOET”)

Chapter 6 l Federal Agencies  99

with the records of the City Treasurer, and could not, therefore, determine Newark’s CETA fund balance as of May 31, 1984. The auditors also advised DOL to examine Newark’s failure to record cash receipts and disbursements in its general ledger after December 31, 1983, and the failure to record expenditures in the ledger after March 31, 1984. Finally, the auditors recommended that a certain undocumented expenditure be examined. Upon reviewing the Tucker report, a DOL Grant Officer made several “findings” regarding the Newark accounts and CETA funds owed to DOL. All but two of those findings, numbers 1 and 4, were resolved by stipulation of partial settlement between the parties. Finding 1 of the Grant Officer’s Final Determination, dated February 7, 1985, disallowed Newark’s claim of $464,450 in CETA costs, due to the City’s failure to record receipts, disbursements and expenditures in the general ledger, and due to several other allegedly inadequate or improper accounting practices. The $464,450 disallowance was reduced to $350,557 through the parties’ Third Stipulation of Partial Settlement. The Grant Officer based this disallowance on [a federal regulation] which requires recipients to maintain records identifying the source and application of CETA funds. In Finding 4 the Grant Officer disallowed a claim of $430,000, because an accrued expenditure in that amount was entered in the general ledger without documentary support. This determination was based on OMB Circular A-102, which requires a grant recipient’s financial management system to provide for “source documentation” in support of accounting records. Pursuant to Newark’s administrative appeal of the Grant Officer’s Final Determination, a hearing was held before a DOL administrative law judge on January 24–25, 1989. On June 4, 1992 the ALJ affirmed the Grant Officer’s Final Determination, as adjusted by the parties’ partial settlement agreement, and ordered Newark to repay to DOL $780,557 … out of non-federal funds. … Once DOL established a prima facie case before the ALJ, the burden shifted to Newark to prove that the City complied with CETA and that act’s regulations. Newark argues that DOL failed to establish a prima facie case because the Tucker auditors “never attempted to trace the expenditures [at issue] into the bank accounts where the funds were transferred.” However, whether the funds were traceable or not is immaterial to the disposition of this case. Rather, the issue before the ALJ was whether Newark had failed to comply with CETA’s reporting and documentation requirements. We hold that the ALJ’s determination that Newark had failed to so comply was supported by substantial evidence…

City of Houston, Tex. v. Dept’t of Housing and Urban Development U.S. Court of Appeals for the District of Columbia, 1994 Harry T. Edwards, Circuit Judge, filed the opinion for the Court. On August 9, 1986, the city of Houston, Texas, was awarded a $21.6 million Community Development Block Grant (“CDBG”) for the fiscal year 1986. The award was made by the Department of Housing and Urban Development (“HUD”), which administers the grant program. Approximately four months after it made the grant, HUD notified Houston that it was reducing the amount of its CDBG by $2.6 million, because of the city’s failure to meet spending

100  THE LAW OF EMERGENCIES

targets. HUD subsequently reallocated the $2.6 million to other CDBG program participants during the succeeding fiscal year. By Act of Congress, the appropriation covering the disputed $2.6 million CDBG funds expired on September 30, 1988… Houston is a so-called “entitlement city” under the CDBG program, meaning that it receives an annual grant from CDBG funds appropriated each year by Congress. Once a grant to an entitlement city is approved, it is ordinarily provided in the form of a letter of credit, which is increased annually by the amount of the grant. The grantee draws on the letter of credit during the year, and funds not used in one year can be carried over to the next. In the instant case, HUD penalized Houston because the city allegedly failed to disburse its CDBG funds in timely fashion, and so had a large backlog of grant monies in its letter of credit account. HUD’s 1986 “Monitoring Report” found that Houston’s credit balance ratio—the ratio of the year-end balance in the city’s account to its yearly grant—stood at 2.8, meaning that Houston had almost three years’ worth of CDBG monies that had not been allocated to eligible programs. On August 9, 1986, HUD awarded Houston $21,699,000 in CDBG monies for fiscal year 1986, which ran from July 1, 1986, through June 30, 1987. In order to promote timely expenditure of the 1986 CDBG, HUD imposed special conditions on that grant. Houston’s 1986 CDBG required the city to meet a set schedule for spending the funds in each quarter; if the city failed to meet this condition, HUD would reduce the grant in the following quarter by the amount which the city fell below the target figure. By letter dated December 22, 1986, HUD notified Houston that it was reducing the city’s 1986 grant by $2,660,486 because the city had failed to meet its first quarter spending target by that amount. HUD “de-obligated” this amount from Houston’s letter of credit on December 30, 1986. During fiscal 1987, HUD reallocated the $2.6 million it had recovered from Houston in the previous fiscal year to hundreds of cities across the nation, as is required by Section 106 of the Housing and Community Development Act of 1974 (“CDBG Act”). By Act of Congress, the 1986 appropriation authorizing HUD to disburse the CDBG funds at issue in this case expired on September 30, 1988. Houston filed suit in the District Court on April 4, 1989, alleging that HUD’s reduction of its CDBG without a hearing [its right to a pre-reduction hearing]. CDBG grantees are subject to two monitoring provisions. Section 104(e) of the CDBG Act requires HUD to review each grantee at least annually to determine “whether the grantee has carried out its activities … in a timely manner, … and whether the grantee has a continuing capacity to carry out those activities in a timely manner,” and permits HUD to make “appropriate adjustments in the amount of the annual grants.” Section 111 of the Act, in contrast, provides that after notice and opportunity for hearing, HUD may terminate, reduce, or limit CDBG payments to a grantee which “has failed to comply substantially” with the CDBG program. In [a prior case], this court held that Section 111, which provides for a hearing, covers HUD actions purporting to sanction grantees for past substantial noncompliance, while Section 104(e), which has no explicit procedural requirements, is intended to ensure that current grants will be spent in compliance with the CDBG program. In the instant case, Houston alleges that, because HUD’s sanctions related to the city’s past failures to disburse its CDBG monies, a hearing was required under Section 111. HUD counters that it proceeded under Section 104(e), because the conditions it attached to Houston’s 1986 CDBG addressed only its rate of expenditure of a current grant. …

Chapter 6 l Federal Agencies  101

[The court did not reach the merits of Houston’s claim because it decided] that this case was mooted by the expiration of the relevant appropriation…“[I]t is an elementary principle of the budget process that, in general, a federal agency’s budgetary authority lapses on the last day of the period for which the funds were obligated. At that point, the unobligated funds revert back into the general Treasury.” [The court found that the Houston did not file its complaint in this case until after budgetary authority had lapsed and thus there were no funds available with which to reimburse the city even if HUD’s ruling had been incorrect.]

Summary Administrative agencies are sometimes called the “fourth branch” of government. Think about the three established branches of government and the functions that they perform. One can argue that agencies perform those same functions in microcosm. They make law in the form of regulations. They adjudicate certain kinds of disputes about the applicability of regulations. And, most obviously, they execute the law. Many of the most contentious issues involving agencies center on the question of whether there are adequate checks and balances on their power, or, in the alternative, whether a national government in the 21st century could function without such a structure.

Important Terms Arbitrary and capricious standard APA ● Federal Register ● Guidance ● Notice-and-comment rule-making ● OIRA ● OMB ● Regulations ● ●

Review Questions 1. When courts are reviewing the process used by an agency to develop the content of regulations, what is the benchmark or standard for validity? 2. What does OMB do? 3. What broader purposes are served by the steps in the APA rule-making process?

7 State and Local Governments Introduction In Chapter 1, we analyzed some of the fundamental aspects of how the Constitution structures our government, including the principle of separation of powers between the three branches of government and the principle of federalism, under which states retain a substantial measure of sovereignty. The fact that separated powers and federalism are built into the system of government provides checks and balances against the risk that excessive power will be concentrated in any one institution. Emergencies pose some of the biggest challenges to this protection. A similar dynamic operates within each state government. Each state has its own constitution, and there is significant variance in details among these 50 charters of government. Although the exact text varies, however, each state constitution also provides for separated powers among the three branches. As we will see from the cases below, the pressure to expand the authority of the executive—i.e., the Governor—is enhanced during emergencies at the state level as well. Moreover, although local units of government within a state do not retain the same level of authority that the states do within the United States, there is usually some degree of local independence of action. State statutes set the parameters for the scope of state versus local power. In this chapter, you will learn the legal frameworks for how state and local governments respond to emergencies and disasters (other than public health emergencies, covered in Chapters 13 and 14); the role of structural constitutional issues, such as separation of powers, at the state level; the division of authority between states and localities; and how a state emergency management agency is organized.

STATE AND LOCAL VIEWPOINTS In times of natural catastrophe or civil disorder, immediate and decisive action by some component of state government is essential. The legislative … power can of course be exercised … In practice, however, the ravages of nature … usually necessitate prompt governmental response. Since the executive is inherently better able than the legislature to provide this immediate response, state chief executives have frequently been given substantial discretionary authority in the form of emergency powers to deal with anticipated crises. Consequently, when public emergencies arise, the center of governmental response is usually the governor’s office. Cougar Business Owners Ass’n v. State, 1982 (internal citation omitted)

Even though Grand Forks had experienced periodic flooding of the Red River of the North, the City Attorney’s office had only minimal involvement with prior flood activities. All of that changed in April The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00007-3 © 2018 Elsevier Inc. All rights reserved.

103

104  THE LAW OF EMERGENCIES

of 1997. Following a fierce winter which thrust eight blizzards upon the community, include a severe ice storm and blizzard during the first week of April, while flood fighting efforts were well underway, the Red River continued to rise past its predicted crest of 49 feet. [It] ultimately crested at 54.11 feet, but not until its flood waters had rendered the municipal water treatment plant inoperable, breached dikes and flood walls, flooded thousands of homes, destroyed businesses and memories alike, and caused the evacuation of virtually the entire population of two sister communities, East Grand Forks, Minnesota, and Grand Forks, North Dakota, having a combined population of approximately 60,000 residents. As if the destruction of the flood was not enough, the downtown business district in Grand Forks lost eleven buildings to a major fire… …[T]he realization of the need for city attorney involvement and coordination in disaster planning and response became painfully obvious. Like most city attorneys, I was aware of an ordinance contained within the city code that authorized certain emergency powers, and I was generally aware of the State’s emergency and disaster statutes. Not having had a prior reason to rely upon them, my knowledge was limited at best. The delicate art of practicing municipal law under conditions of hell and high water became reality. (Swanson, 2000)

Separation of Powers in an Emergency: The Governor and the Legislature Worthingon v. Fauver Supreme Court of New Jersey, 1982 To alleviate the potentially disastrous overcrowding of inmates in state and county correctional institutions, the Governor issued Executive Order No. 106 on June 19, 1981. In promulgating the order, the Governor invoked his emergency powers under the … Disaster Control Act. This temporary emergency measure granted to the Commissioner of Corrections the authority to direct that county correctional facilities house prisoners sentenced to state institutions. The Commissioner was also given the power to redistribute such prisoners among the county facilities. Atlantic County challenges the statutory and constitutional validity of this emergency measure. We hold that the Governor’s Order is authorized by the Disaster Control Act and does not violate the constitutional principle of separation of powers. I It is commonly acknowledged that overcrowding in prisons causes grave problems. Rehabilitative programs and recreation become disrupted or nonexistent. As crowding increases, frustration and anger emerge, causing tempers to flare and fights to erupt. Lack of space makes it difficult if not impossible to segregate prisoners for disciplinary and other purposes. Overcrowding can contribute to riots. According to the Commissioner of Corrections, prison overcrowding first became a serious problem in New Jersey in 1975. Although ameliorated somewhat from 1978 to 1980, the problem

Chapter 7 l State and Local Governments  105

lately has reached crisis dimensions. This has been caused in large part by an increase in the number and length of custodial sentences. At the time this suit was filed, the state prison population was well in excess of the system’s capacity. This necessitated housing approximately 480 offenders sentenced to state prison in county facilities because the overcrowded state institutions were physically unable to receive them. This in turn has created overcrowding in many county jails…. … Declaring overcrowding in state prisons to be an emergency, the [Executive] Order explained that the Department of Corrections “is physically unable to accept from the Sheriffs of the various counties the custody of inmates sentenced to the custody of the Commissioner of the Department of Corrections, as mandated by [New Jersey statute].” The Governor invoked the emergency powers of the Disaster Control Act on the grounds that “these unusual conditions endanger the safety, welfare and resources of the residents of this State, and threaten loss to and destruction of property, and are too large in scope to be handled entirely by regular operating services of either the counties or the New Jersey Department of Corrections.” Because of the “need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding,” the Order designated the Commissioner of Corrections as the sole authority empowered to allocate inmates among the various county facilities, and when possible, to move those prisoners to state institutions. … II …[W]e initially decide whether the Governor has the statutory power to issue [the executive order]. This involves a determination as to (1) whether the current crisis constitutes an emergency within the meaning of the Disaster Control Act, and (2) whether the means chosen by the Governor to address the emergency are authorized by the statute. A The challenged executive orders rely on the authority of the Disaster Control Act …The purpose of the act and the broad powers conferred on the Governor are clearly stated in [the New Jersey Code]: The purpose of this act is to provide for the health, safety and welfare of the people of the State of New Jersey and to aid in the prevention of damage to and the destruction of property during any emergency as herein defined by prescribing a course of conduct for the civilian population of this State during such emergency and by centralizing control of all civilian activities having to do with such emergency under the Governor and for that purpose to give to the Governor control over such resources of the State Government and of each and every political subdivision thereof as may be necessary to cope with any condition that shall arise out of such emergency and to invest the Governor with all other power convenient or necessary to effectuate such purpose. The Governor’s ample powers are further elaborated… The Governor is authorized to utilize and employ all the available resources of the State Government and of each and every political subdivision of this State, whether of men, properties or instrumentalities, and to commandeer and utilize any personal services and any privately owned property necessary to avoid or protect against any emergency subject to the future payment of the reasonable value of such services and privately owned property as hereinafter in this act provided.

106  THE LAW OF EMERGENCIES

Finally, the scope of the Governor’s authority to issue emergency orders is defined…: In order to accomplish the purposes of this act, the Governor is empowered to make such orders, rules and regulations as may be necessary adequately to meet the various problems presented by any emergency and from time to time to amend or rescind such orders, rules and regulations, including among other the following subjects: i. On any matter that may be necessary to protect the health, safety and welfare of the people or that will aid in the prevention of loss to and destruction of property. j. Such other matters whatsoever as are or may become necessary in the fair, impartial, stringent and comprehensive administration of this act. These sweeping provisions reveal three general, pertinent features of the act. First, the act vests the Governor with broad powers to provide for the health, safety and welfare of the people of the State during any “emergency.” Second, these powers include the authority to centralize control over the resources of the State government and its subdivisions, including the counties, “whether of men, properties or instrumentalities.” Third, a significant purpose of the act is the prevention of harm to life and property. B We now address whether the current prison overcrowding in New Jersey constitutes an “emergency” within the meaning of the Disaster Control Act. Section 33.1 of the act defines “emergency” and “disaster” as used in the statute. (1) “Disaster” shall mean any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be handled in its entirety by regular municipal operating services. (4) “Emergency” shall mean and include “disaster” and “war emergency” as above in this section defined. Plaintiffs argue that prison overcrowding is not an “unusual incident.” It is not “unusual” because it has been recognized as a major problem as early as 1977. It is also not an “incident” because it is not a sudden or unforeseen event. We reject this overly narrow interpretation of the scope of the act. Any grant of executive authority must be construed to accomplish the Legislature’s purpose. This is especially true when those statutes operate to protect the public health, safety and welfare, especially during emergencies. … [T]he Disaster Control Act …has permitted the Governor to handle a wide variety of crises, including storms, energy shortages, labor strikes, factory explosions, and water shortages. The Disaster Control Act must be understood in light of its purposes. It sought to protect the public by centralizing control over local government resources in situations whose remedies were beyond the authority and power of local government. A crisis can arise because of a failure to take action. Thus, it is not a necessary component of an “emergency” that it be sudden or unforeseen. Prison overcrowding is closely analogous to the recent water shortages, which arose over time and which were appropriately ameliorated by an emergency executive order. The question is not whether the incident emerged suddenly, but whether the scope of the present

Chapter 7 l State and Local Governments  107

crisis prevents local governments from safeguarding the people, property and resources of the State. … Recent disruptions in prisons across the country graphically illustrate the destructive potential inherent in prison overcrowding. They entail substantial loss of property and often loss of life. The record below demonstrates that our state and county facilities may be dangerously close to producing such a disaster. The prevention of such an occurrence is clearly a proper subject of executive emergency action under the statute. … There is sufficient evidence in the record to sustain a finding that the problem of prison overcrowding in New Jersey has reached dangerous proportions, and that there is a substantial likelihood of a disastrous occurrence in the immediate future. We therefore hold that the current crisis of prison overcrowding is an “emergency” under the Disaster Control Act and is a proper subject of emergency executive action. We now consider whether the measures taken by the Governor to alleviate that crisis are authorized by the statute. C In reviewing executive actions undertaken pursuant to delegated emergency powers, we must determine whether the actions are authorized by the statute. This involves, first, a determination of whether the Executive Order bears a rational relationship to the legislative goal of protecting the public. Second, the executive action must be closely tailored to the scope of the current emergency situation. The nature of the (statutory) power determines what may be done and the nature of the emergency restricts the how of its doing, i.e., the means of execution. The executive orders in question empower the Commissioner of Corrections to allocate state prisoners to county correctional facilities and to redistribute such prisoners among the counties. These remedial measures are specifically authorized by the Disaster Control Act. The act gives the Governor emergency power to issue orders and centralize control over the resources of the political subdivisions of the State government. It further authorizes him “to utilize and employ all the available resources of the State Government and of each and every political subdivision of this State, whether of men, properties or instrumentalities * * * ” County jails are certainly “resources” of “political subdivisions” of the State within the meaning of the act. The plain language of the statute clearly authorizes the Executive Orders issued in the current emergency. … D We next consider whether the measures prescribed by these orders are rationally related to the legitimate governmental interest in protecting the public and whether they are closely tailored to the magnitude of the current emergency. There can be no question that centralization of power to allocate prisoners among the various state and county facilities is a rational means of alleviating the problem of overcrowding in our prisons. Since it is undisputed that some county jails have significant excess capacity, it is rational to empower the Commissioner to make use of those facilities to relieve the overburdened prisons. Thus, the measures imposed by the executive orders are clearly related to the statutory ends of protecting life and property. We must determine, therefore, whether the executive orders are tailored to the magnitude of the current crisis. While the Disaster Control Act grants broad authority to the Governor to deal with an emergency, his powers under that statute are not without limit. These emergency powers represent an extraordinary delegation of authority by the Legislature to the Executive. Because

108  THE LAW OF EMERGENCIES

of the extraordinary nature of that authority, the executive orders must not only bear a rational relationship to the goal of protecting the public, but their scope must not exceed the extent of the emergency. The statutory validity of executive actions pursuant to emergency power will depend on the nature of the emergency and the gravity of the threat to the public. Thus, a more serious emergency may justify greater responsive measures… [Here] the threat of damage is extensive and the exercise of emergency power rather limited, it can hardly be disputed that the measures authorized by the executive orders are properly tailored to the magnitude of the current emergency. … IV The final issue is whether the executive orders violate the constitutional principle of separation of powers under the State Constitution. This involves consideration of (1) whether the orders represent a usurpation of legislative power by the executive branch; (2) whether the enabling legislation represents an unconstitutional delegation of legislative power to the executive; and (3) whether the legislative delegation of power or the executive implementation of the orders impermissibly encroaches on the proper sphere of the judiciary. … The purpose of the constitutional separation of powers is to prevent oppressive action by the government. Its premise is that the concentration of unlimited power inevitably results in tyranny. Separation serves to maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch. The doctrine thus represents a fundamental and indispensable bulwark against despotism. The purpose of the doctrine is to restrain public power, not to restrict the legitimate operation of representative democracy. Rigid classification of the duties and powers of each branch is therefore neither possible nor desirable. … [T]he delegated authority [under the Disaster Control Act] includes the power to utilize the available resources of the counties. Thus, the executive action is not in derogation of the authority of the Legislature. … In this case, the Legislature has specifically delegated the authority to the Governor to utilize the resources of the counties to protect the public in emergencies. The Legislature retains the power to amend the Disaster Control Act to take away executive power to utilize the county jails in the current crisis. It may also enact legislative solutions to the current problem. Because the Legislature has not relinquished this corrective power, there is no reason to believe that the executive orders have impaired its essential functions.

Critical Thinking How is the delegation of legislative power related to the separation of powers principle? At one point the court finds that the prison overcrowding problem presents “a substantial likelihood of a disastrous occurrence in the immediate future.” Do you agree that the facts as described in the opinion satisfy that standard? Even if they arguably do not, why might the court apply a lenient standard of review? Does the statutory language permit this approach?

Chapter 7 l State and Local Governments  109

Separation of Powers in an Emergency: The Governor and the Courts The National Tax-Limitation Committee v. Schwarzenegger California Court of Appeal, 2003 …Under the California Emergency Services Act, the Governor is empowered to proclaim a state of emergency when he finds that certain conditions exist. The [California Emergency Services] Act further provides: “The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.” On January 17, 2001, pursuant to his powers under the Act, former Governor [Gray] Davis proclaimed a state of emergency to exist based on the following findings: “[S]hortages of electricity available to California’s utilities have today resulted in blackouts affecting millions of Californians; and “[U]nanticipated and dramatic increases in the price of electricity have threatened the solvency of California’s major public utilities, preventing them from continuing to acquire and provide electricity sufficient to meet California’s energy needs; and “[T]he California Public Utilities Commission, the Independent Systems Operator and the Electricity Oversight Board have advised that the electricity presently available from California[‘]s utilities is insufficient to prevent widespread and prolonged disruption of electric service within California; and “[T]his energy shortage requires extraordinary measures beyond the authority vested in the California Public Utilities Commission; and “[T]he imminent threat of widespread and prolonged disruption of electrical power to California’s emergency services, law enforcement, schools, hospitals, homes, businesses and agriculture constitutes a condition of extreme peril to the safety of persons and property within the state which, by reason of its magnitude, is likely to be beyond the control of the services, personnel, equipment, and facilities of any single county or city; …” In an exercise of his emergency powers, former Governor Davis then ordered the Department of Water Resources (the Department) to “enter into contracts and arrangements for the purchase and sale of electric power with public and private entities and individuals as may be necessary to assist in mitigating the effects of this emergency.” In connection with this order, the Governor suspended “the provisions of the Government Code and the Public Contract Code applicable to state contracts, including but not limited to, advertising and competitive bidding requirements.” On June 13, 2002, [Lewis] Uhler, the president of The National Tax-Limitation Committee, wrote to the Governor and asked that he “proclaim the termination of [his] emergency powers

110  THE LAW OF EMERGENCIES

immediately” because “[t]he energy crisis has long since subsided.” The Governor refused to do so. Accordingly, on October 9, 2002, plaintiffs filed a petition for a writ of mandate against the Governor and the A writ or mandate or mandamus is a court order issued to a government official directing him to take action required by law, but which he has failed or refused to do. Department, alleging that “California is no longer in the midst of a ‘power crisis’ and [the Governor] is mandated to terminate his emergency powers, relating thereto, as a matter of law.” Plaintiffs requested a writ of mandate “requiring [the Governor] to terminate his declaration of an energy emergency and the exercise of all powers flowing therefrom, including, but not limited to, the purchase of electricity or the negotiation of contracts therefore.” The Governor [argued that] the Act provides for termination of a state of emergency only by the Governor or the Legislature, and therefore the court was barred by the separation of powers doctrine. The trial court agreed, stating that “this is not the type of case that is appropriate for judicial review…. [¶] … [I]t is … a legislative or a decision of the Governor as to … whether or not there is still an emergency situation due to an energy shortage.”… The California Emergency Services Act recognizes and responds to a fundamental role of government to provide broad state services in the event of emergencies resulting from conditions of disaster or of extreme peril to life, property, and the resources of the state. Its purpose is to protect and preserve health, safety, life, and property. A state of emergency may be proclaimed by the Governor under the conditions proscribed for any area affected. The act confers broad powers on the Governor to deal with emergencies. For example, during a state of emergency, the Governor may suspend any regulatory statute or statute proscribing the procedure for conduct of state business, or suspend the orders, rules or regulations of any state agency, if these would prevent, hinder or delay the mitigation of the effects of the emergency. The Governor may command or utilize private property or personnel deemed by him necessary in carrying out his responsibilities, paying for its reasonable value … The state is not liable for any claim based upon discretionary functions. The Governor is empowered to make expenditure from any fund legally available to deal with the conditions of a state of emergency… …[T]he Governor has the power to proclaim a state of emergency when he finds: (1) that a rapid, unforeseen shortage of energy has caused the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state; (2) that the energy shortage requires extraordinary measures beyond the authority vested in the California Public Utilities Commission; and (3) that local authority is inadequate to cope with the emergency… It follows, as a matter of parity, that the Governor likewise is entitled to exercise his discretion in later determining whether and when “conditions warrant” termination of the state of emergency—for example, because one or more of the conditions prerequisite to declaring the state of emergency in the first place has ceased to exist. In other words, the Governor’s duty to terminate a proclaimed state of emergency arises only when the Governor has determined that

Chapter 7 l State and Local Governments  111

“conditions warrant” termination of the state of emergency. That foundational determination is committed to the sound discretion and judgment of the Governor under the Act. Arguing that “mandamus cannot lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner,” the Governor contends his “authority to declare the … end of a state of emergency” cannot be controlled by a writ of mandate because he [alone] has the discretion to determine when conditions warrant termination of the state of emergency… [The discretion is broad, but not limitless. To successfully challenge its exercise, plaintiff ] must show the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal standards. Where only one choice can be a reasonable exercise of discretion, a court may compel an official to make that choice. It follows … that while the Governor may have no … duty to terminate a state of emergency until he determines, in the exercise of his discretion, that conditions warrant such an action, mandamus will lie to correct an abuse of discretion by the Governor in making that foundational determination. If, under the facts, the only choice that would be a reasonable exercise of the Governor’s discretion would be to determine that conditions warrant termination of the state of emergency, then a writ of mandate can compel him to make that choice. … Under the foregoing analysis, the question here is whether, based on the facts plaintiffs alleged in their petition, the only reasonable choice before the Governor was to determine that conditions warrant terminating the state of emergency. We conclude the answer to that question is “yes.”… This statute provides immunity from tort liability; it does not “immunize” the Governor from a writ of mandate properly issued to compel him to correct an abuse of his discretion under the Act. …

Tort is the name given to a body of law that establishes the principles under which a person may recover damages for having caused harm, whether intentionally or by negligence. Thus, while the Governor could not be sued for [monetary] damages alleged to have resulted from his discretionary decision not to terminate the state of emergency, it does not follow that his decision cannot be reviewed for abuse of discretion under the court’s traditional power to issue writs of mandate. Accordingly, the Governor’s immunity argument fails. …

Critical Thinking The Schwarzenegger case illustrates that courts, as well as legislatures, have a role to play in containing the expansive scope of a governor’s powers during a state of emergency. If the state legislature believed that this decision gave the courts too much power, what options would the legislature have to redress the balance?

112  THE LAW OF EMERGENCIES

State Government v. Local Government in an Emergency State of Missouri v. Pruneau Missouri Court of Appeals, 1983 …The facts and legal history of this case are unusual, to say the least, and raise serious questions as to who has the authority and responsibility to take lawful emergency measures, including commandeering, seizing, and using property not their own, to alleviate the effects of disasters, either natural or man-made. On December 4, 1982, Kenneth J. Rothman, Acting Governor of Missouri, [issued Executive Order 82-23, which] declared Wayne, Bollinger and Butler counties to be disaster areas by reason of heavy rainfall followed by severe flooding. The order recited that the safety and welfare of the citizens of those counties required an invocation of … the powers of the governor during an emergency, the definition of which term includes a natural disaster, such as a flood of major proportions. Those emergency powers include the right, during the period that the state of emergency exists or continues, to “seize, take or requisition to the extent necessary to bring about the most effective protection of the public” certain things, such as communications systems, fuel, and facilities for housing, feeding, and hospitalization of the people. The statute also authorizes the governor to enforce and put into operation any plan relating to disasters, to assume direct operational control of all emergency forces and volunteers, and to take action and give direction to state and local agencies as “may be reasonable and necessary for the purpose of securing compliance with the provisions of this law and with the orders, rules and regulations made pursuant thereof.” Executive order 82-23 went on to authorize that the approved “Missouri Comprehensive Emergency Preparedness and Disaster Relief Plan” be activated, and authorized the use of “such agencies, personnel and equipment of the State as may be necessary for the preservation of life, property and the restoration of public facilities in those counties.” It also specifically authorized and ordered several state agencies, including the [Missouri Highway and Transportation] Commission, to utilize the personnel and equipment of their agencies “in support of local government as may be deemed appropriate under the circumstances” during the period the order was in effect… On December 10, 1982, Wayne County …, filed a petition in the Circuit Court of Wayne County asking for relief consisting of a court order in the nature of mandamus directing nine defendants, who were members or employees of the Commission “for their cooperation and for the loan of 3 motor graders, 3 dump trucks, and 1 front end loader, together with their operators, for utilization by plaintiff for the ensuing five-day period or until further Order of this Court, and for such other and further relief as the Court deems proper and just in the circumstances.” The petition recited that the state of Missouri owned, and that the Commission operated, certain equipment for the use and benefit of the people of Missouri, and that a part of that equipment, including motor graders, dump trucks and front end loaders, and operators for the same, were in Wayne County. It further recited that because of the flood, much of the county-maintained road

Chapter 7 l State and Local Governments  113

system was unusable, and that Wayne County did not have the equipment and personnel to repair the roads for evacuation and rescue purposes, and to permit the Wayne County residents served by the roads to travel them to obtain food, water, and other supplies. The petition stated that “Plaintiffs have requested assistance through the District Engineer, who has responsibility for the Wayne County area regarding defendants’ equipment, but defendants, through their District Engineer, have failed and refused and continue to fail and refuse to provide said equipment [the motor graders, dump trucks, and front end loaders] and operators, in violation of law.” The petition did not state what law defendants were violating, and did not state what … duty defendants had, if any, to furnish the demanded equipment and operators to Wayne County or its county court. The petition closed by stating the county had no adequate remedy at law except the requested court order, and that it needed the equipment and operators “for the purposes of emergency repairs of public and county roadways and thoroughfares, as to plaintiff seems necessary in its discretion.” The filing of the petition triggered a series of events which, in retrospect, seem incredible. On the same day that the petition was filed, before service was obtained upon defendants, and without notice to them, Judge Pruneau … ordered the defendants, upon receipt of the writ and petition, to provide County Judge Boyer, as the chief executive officer of Wayne County, with three motor graders, three dump trucks, one front end loader and competent operators for the equipment, for utilization by Wayne County “untill [sic] further Order of a Court of competent jurisdiction is entered disolving [sic] this Order or until a peremptory Writ of Mandamus may be entered after a hearing to resolve the issues which affect the rights of all parties.” … On Saturday, December 11, armed with the order, Boyer, Bearden, and an accompanying entourage of deputy sheriffs, newsmen, and county employees, without notice to any of the defendants, proceeded to two storage sheds north of Piedmont, Missouri, entered the buildings by means of acts that would constitute felonies if not committed under legal authority (breaking latches of locked doors), and removed two motor graders, two dump trucks, and a front end loader, the property of the Commission, from the sheds. Boyer, Bearden, and their associates evidently used the equipment that day in repairing county roads, and returned it to the sheds that evening. During the night, Commission employees removed the equipment from the county, fearing a repetition of the incident. … The only real question here is whether the trial judge had jurisdiction to issue the preliminary order and peremptory writ of mandamus, under which the members of the county court claimed authority to commandeer, seize and use property which did not belong to Wayne County. … Seizure of property by the government, or any political subdivision thereof, has always been looked upon with deep suspicion by our people, and, in fact, is constitutionally prohibited, unless done under the auspices of due process of law. Respondents claim that they were justified in taking the Commission’s property for their own use because such action was necessary, due to the existence of an emergency. This argument has been used down through the history of mankind to justify every sovereign act which in the bright light of reason and calm debate might be said to be excessive or repressive. Such sovereign acts have included the imposition of martial law, establishment of curfews, and suspension of the writ of habeas corpus, but never have any of such acts been justified in this country, after the establishment of the constitutional guarantees of due process, unless such acts are specifically authorized by the constitution and laws of the sovereign state.

114  THE LAW OF EMERGENCIES

The general assembly of Missouri, recognizing that there must be a coordinated effort to cope with natural and man-made disasters, passed into law the Civil Defense Act. As a part of this act, the governor, as the chief executive officer of the state, has general direction and authority over disaster control operations and may assume direct control over all or part of a disaster response if local capabilities are exhausted. He is generally authorized to direct the cooperation of state agencies and officials and local political subdivisions in performing emergency functions. Under specified conditions, the governor or the legislature may declare the existence of a state of emergency. In the event that he does so, the governor, under emergency powers granted him by law, may, as mentioned earlier, put emergency response plans into operation, control emergency forces and operations, and seize certain types of property. No such power is given to a political subdivision such as Wayne County. The powers of political subdivisions … do not include the right to seize the property of others for their own use. The provision that political subdivisions may “expend funds, make contracts, obtain and distribute equipment, materials, and supplies for civil defense purposes” may not possibly be construed as an authorization to seize property. Furthermore, the contention … that because a state of emergency existed,… the county was entitled to the equipment in question on demand … is not supported by either law or logic. No right is given a county to commandeer the Commission’s employees and equipment for use in repairing the county roads. There is nothing in the statute relied on which could even be remotely construed to justify the seizing and use of Commission property by Wayne County officials on the basis of a unilateral decision by the county court that such action was “necessary.” The statute in question directs the officers and personnel of all state agencies to cooperate with and extend their services and facilities regardless of their usual functions and services “to the governor and to the disaster organizations of the state upon request.” It alters neither the discretionary evaluation of the emergency situation to be made by the governor or his designated agents under the guidelines of the regulations heretofore referred to, nor the need for a specific directive to be given to the appropriate state agency as to the extent of aid to be given to political subdivisions. Local government is authorized to utilize the services, equipment and supplies of the agency so directed to combat the emergency, but there is nothing in the statute that permits, even by implication, a political subdivision to commandeer and use property as was done here. …

Statutory Grant of Municipal Authority Despite the facts of Pruneau, most local government officials don’t resort to weekend raids to respond to emergencies. The special powers that municipalities have during emergencies are usually specified in state statutes. For example, the North Carolina state code provides in § 14-288.12: (a) The governing body of any municipality may enact ordinances designed to permit the imposition of prohibitions and restrictions during a state of emergency. (b) The ordinances authorized by this section may permit prohibitions and restrictions: (1) Of movements of people in public places; (2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate;

Chapter 7 l State and Local Governments  115

(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages; (4) Upon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline; and (5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

Critical Thinking The President and Governor can commandeer property; local officials cannot (unless a state statute gives them that power). Do you think there is a stronger case for enactment of a law that allows local governments to seize private property during an emergency, rather than state government property, as occurred in Pruneau? A weaker case? Why?

State-to-State Assistance Agreements In 1992, Hurricane Andrew devastated Florida. Then Governor Lawton Chiles sought assistance not only from FEMA, but also from neighboring states. In order to make the process easier in the future, he led the Southern Governors Association in creating a formal mechanism to simplify the sharing of resources between states. This agreement among states evolved into the Emergency Management Assistance Compact (EMAC), and was ratified by Congress in 1996. The EMAC system is a streamlined and effective mutual assistance network. In 2005, resources deployed through EMAC accounted for more than 50 percent of out-of-state personnel sent to the Gulf Coast in the wake of Katrina. The categories of personnel who were mobilized through EMAC included search and rescue teams, healthcare professionals, fire and hazmat personnel, law enforcement officers, and animal rescue workers (National Emergency Management Association, 2008). In order to join EMAC, a state must adopt legislation that ensures that all EMAC members are operating under the same rules. All 50 states plus the District of Columbia, Puerto Rico, the Virgin Islands and Guam have enacted this legislation. Maryland’s EMAC law, for example, can be found in Section 14-602 of its Public Safety Code. The model for EMAC legislation consists of 15 articles, each of which sets forth a binding obligation between the states. One of the most important provisions of EMAC, Article 5 of the model, deems persons who are licensed professionals in one member state to be licensed when rendering assistance during an emergency in another member state: Whenever any person holds a license, certificate or other permit issued by any state evidencing the meeting of qualifications for professional, mechanical or other skills, such person may render aid involving such skill in any party state to meet an emergency or disaster; and such state shall give due recognition to such license, certificate or other permit as if issued in the state in which aid is rendered.

116  THE LAW OF EMERGENCIES

An important caveat: EMAC does not provide for recognizing the licensure of individuals who travel on their own, without being sent as part of the EMAC process. Other articles cover compensation, benefits, and liability. Article 8 requires that each state is responsible for payment of compensation and death benefits relative to the members of its own team, on the same terms as if the injury or death had occurred in the home state. Article 6 provides that persons providing aid and assistance are considered employees of the state where the aid is rendered for purposes of tort liability. (See Chapters 18 and 19 for more detail on liability.) What about the use of military personnel? National Guard units can be deployed for law enforcement purposes if they are acting under the command of the state’s governor, but not if they have been federalized and are operating under command of the President. Into what category does the National Guard fall when it has been sent from one state into another pursuant to an agreement between governors? Under EMAC, National Guard units sent interstate can be used only for humanitarian purposes, not for law enforcement or military functions. The EMAC process requires two steps for activation. First, a governor must formally declare a disaster or emergency pursuant to state law. Second, that state (the “requesting state”) must request assistance through EMAC’s national coordinating group. “Assisting states” deploy resources, and, after the crisis is over, the requesting state will reimburse certain expenses of the assisting states. While the operation is underway, the NIMS/ICS system functions as the operational template.

Critical Thinking The legal framework underlying the EMAC system guarantees that some issues are handled uniformly by all the states, in all emergencies. However, it doesn’t prevent states from entering into additional agreements with each other. What other sorts of arrangements might states want to make with other states?

Maryland as a Case Study Since every state is different, the following section describes how the laws of a typical state have established institutions and procedures for emergencies. Under the Maryland Emergency Management Act, the Governor has the authority to declare “that an emergency has developed or is impending due to any cause.” (§ 14-107(a)(1)) The Act defines an “emergency” as the threat or occurrence of a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion, and any other disaster in any part of the State that requires State assistance to supplement local efforts in order to save lives and protect public health and safety; or an enemy attack, act of terrorism, or public health catastrophe. (§14-101(c))

Chapter 7 l State and Local Governments  117

The state of emergency continues until the governor (i) finds that the threat or danger has passed or the emergency has been dealt with to the extent that emergency conditions no longer exist, and (ii) terminates the state of emergency by executive order or proclamation. (§14-107)

A state of emergency may not continue for longer than 30 days without renewal by the Governor, and the General Assembly may terminate a state of emergency by joint resolution at any time. (There is a separate statute providing for gubernatorial powers in a “public emergency,” which includes civil disturbances and energy emergencies; and also a catastrophic public health emergency act.) The Maryland Emergency Management Act requires that a declaration of emergency by the governor contain “the nature of the emergency, the area threatened, and the conditions that have brought about the state of emergency or that make possible the termination of the state of emergency.” (§14-107(b)(1)) The Governor of Maryland has various powers under Article II of the state constitution: he or she is the chief executive of the state, commander-in-chief of the Maryland National Guard,

Governor

Ultimate chief executive of MEMA

Adjutant General

Appointed by the Governor. Responsible for state’s armories and property. Appoints the Director of MEMA

Maryland Emergency Management Agency Director

Carries out the emergency management program. Coordinates the response to a threat or emergency

Local Director of Emergency Management

Subject to control of Mayor and Governor’s general power. Includes programs and positions recommended by MEMA to meet federal and state standards

FIGURE 7-1  MEMA chain of command.

118  THE LAW OF EMERGENCIES

Chief of Staff Director Public Information Office

National Capital Area Liason

Deputy Director for Operations

Preparedness Divison

Mitigation and Recovery

Chief of Operations

Exercise and Training

Planning

Critical Infrastructure Program

Regional offices

FIGURE 7-2  MEMA organizational chart.

and responsible for insuring the faithful execution of state laws. A declaration of a state of emergency provides the governor with these additional powers: ● ● ● ● ●

To suspend statutes or rules or regulations of state agencies or of local governments To compel evacuations To authorize state use of private property To provide temporary housing To appropriate and manage funds necessary to respond to the emergency.

Responsibility for implementation of the state’s emergency plan lies with the Maryland Emergency Management Agency (MEMA), which is part of the Maryland Military Department. The adjutant general, who is appointed by the Governor, is the head of the department. During emergencies, however, the director of MEMA reports directly to the Governor. Together with other units in the Military Department, MEMA operates the Maryland Joint Operations Center (MJOC), which monitors events in the state for signs of natural or other emergencies and functions as a communications hub during an emergency (Figs. 7-1 and 7-2).

Summary State governments, like the federal government, have a series of independent and distinctive powers and responsibilities during an emergency. Their structural organization parallels that of the national government. In the following chapter, we will see how the roles of the various actors are coordinated in the face of emergency.

Chapter 7 l State and Local Governments  119

Important Terms ● ● ● ● ●

Commandeer property Delegation of legislative power Immunity from tort liability Political subdivision of a state Writ of mandate or mandamus

Review Questions The bedrock policy question raised in this chapter is how to balance the powers needed by a governor during an emergency with sufficient checks and balances against abuses of that power. Do you agree with the following argument by Law Professor Jim Rossi: The constitutional case for a presumption of executive authority is stronger at the state level than at the national level. At a minimum, such a presumption should encompass broader lawmaking powers (including [suspension of statutes and] agency rulemaking), and generally should be sufficiently triggered by all interstate crises, not just attacks. Such executive authority would include not only general authority to issue executive orders but also broad rulemaking authority (subject to a state’s administrative process) that exceeds extant legislative delegations to the executive. This presumption would both stand to enhance political legitimacy during times of crisis and have a strong legal basis in state constitutions. Why or why not?

8 Response Coordination and Incident Command Systems Introduction So far in this book, we have been examining different areas of law one by one, as well as various structures and functions of government at the federal and state levels. This chapter will start the process of putting it all together, by looking at how the pieces should synchronize in real time when emergency and disaster responses are underway. Specifically, we will explore the legal rules and operational structures that govern how multiple agencies and levels of government work together in disaster relief and learn how the federal government’s system for organizing assistance has evolved into an all-hazards approach. We have already discussed the mechanism under several laws for declaration of an emergency and the kinds of powers and resources that each declaration triggers. As you read the next section, which describes how all the pieces came together in the response to the attacks on New York on September 11, consider how the multiple declarations of emergency combined to produce a massive response to a devastating event.

The September 11 Response In re: World Trade Center Disaster Site Litigation U.S. District Court, Southern District of New York, 2006 Hellerstein, District Judge. In the aftermath of the attacks, government leaders at the local, state and federal levels took immediate action to secure physical assistance and funding for the recovery effort at the World Trade Center site. The Mayor of the City of New York, the Governor of the State of New York, and the President of the United States all declared states of emergency, authorizing and directing government agencies and officials to undertake those measures necessary to assist the City of New York in its process of recovery. Pursuant to the authority granted him under [state law], the Mayor of the City of New York, Rudolph W. Giuliani, issued a Mayoral Order on September 11, 2001, proclaiming a local state of emergency based on the danger to public safety posed by the attacks. In declaring a state of emergency, the Mayor directed “the Police, Fire and Health Commissioners and the Director of Emergency Management to take whatever steps are necessary to preserve the public safety and The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00008-5 © 2018 Elsevier Inc. All rights reserved.

121

122  THE LAW OF EMERGENCIES

to render all required and available assistance to protect the security, well-being and health of the residents of the City.” In subsequent proclamations, and pursuant to [state law] allowing for suspension of local laws and regulations during states of emergency, the Mayor directed that local regulations governing the leasing of real property to the City be suspended so as to “permit the immediate leasing of office and other space for use by City agencies in order to continue to provide essential services and critical functions of the City.” The Proclamation of Emergency was renewed by Mayoral Order every five days, as mandated by [state law], throughout the duration of the recovery and cleanup efforts at the World Trade Center site, through the end of June 2002. A disaster emergency was also declared for the State of New York by Executive Order of Governor George E. Pataki on September 11, 2001, pursuant to the authority granted him under the New York State and Local Natural Disaster and Man-Made Disaster Preparedness Law (“Disaster Act”). Noting the “unspeakable atrocities” that occurred in New York City, Washington D.C., and Pennsylvania, Governor Pataki “direct[ed] the implementation of the State Disaster Preparedness Plan and authorize[d]” various state agencies to take “all appropriate actions to assist in every way all persons killed or injured and their families, and protect state property and to assist those affected local governments and individuals in responding to and recovering from this disaster, and to provide such other assistance as necessary to protect the public health and safety[.]” On September 14, 2001, President George W. Bush, acting pursuant to the National Emergencies Act, declared the existence of a national state of emergency “by reason of the terrorist attacks at the World Trade Center … and the Pentagon, and the continuing and immediate threat of further attacks on the United States.” The declaration was deemed effective as of September 11, 2001. The declaration served also to activate provisions of the Stafford Act. Pursuant to the Presidential declaration of a national emergency, the Director of the Federal Emergency Management Agency (“FEMA”), Joe M. Allbaugh, declared that a national emergency existed in the State of New York and, in the interest of ensuring the provision of federal assistance, authorized FEMA “to allocate from funds available for these purposes, such amounts as [are] necessary for Federal disaster assistance and administrative expenses.” The City Asserts Control and the Recovery Operation Commences The City response began mere moments after the terrorist attacks on New York City. American Airlines Flight 11 crashed into One World Trade Center at 8:40 a.m. By 8:50 a.m. on September 11, the City, initially through the Fire Department, had established its Incident Command Post and had asserted control over the World Trade Center complex and the surrounding areas. The rescue and recovery efforts at the site were thereafter coordinated through the City Office of Emergency Management (“OEM”), with the Fire Department designated as the incident commander for the site, and with the City Department of Design and Construction (“DDC”) assuming total control over all aspects of safety, construction, demolition, and cleanup activities at the site. On September 12, 2001, the DDC set up a temporary command center at Public School IS 89 in lower Manhattan, immediately to the north of the World Trade Center site, and commenced daily meetings to organize rescue and recovery efforts. Of utmost concern to the DDC was

Chapter 8 l Response Coordination and Incident Command Systems  123

securing the World Trade Center site and limiting access to the area. Together with other City agencies, including the OEM, the DDC established stringent protocols determining “not only who would have access to the site, but also how that access would take place and under what constraints.” The City further enlisted the Port Authority of New York and New Jersey (the “Port Authority”) to assist in maintaining the security of the perimeter and to report observed safety protocol discrepancies. The City also engaged private contractors for the recovery effort. On September 15, 2001, FEMA confirmed that contracts could be awarded without need for competitive bidding under the emergency conditions existing after September 11. Requirements for competitive bidding having been waived, and pursuant to the Declarations of Emergency issued at the City, State and Federal levels, the DDC engaged [several construction companies] to provide the work necessary for removal and demolition services. The efforts of [these] contractors were coordinated, and supervised through the DDC at twice daily meetings held at the temporary command center, and by numerous visits to the worksite. By September 14, 2001, the DDC had divided the site into four quadrants with a primary contractor assigned as a “construction manager” for each individual quadrant. The primary contractors acted as supervisors for their individual quadrants, with responsibility for enforcing applicable regulations and ensuring compliance. … In the initial days and weeks following September 11, the City and its contractors, together with public utilities, worked also to restore essential services to the City. The September 11 attacks resulted in the immediate loss of power to all of lower Manhattan and in the destruction of critical components of the gas and steam infrastructure. The Con Edison substations, which had been located directly beneath World Trade Center Seven, were destroyed by fire and by the building’s ultimate collapse, resulting in a critical disruption of services to Lower Manhattan. Con Edison assumed sole responsibility for restoring electric, gas and steam services and related facilities that were damaged or destroyed due to the events of September 11. The Verizon Building, located at 140 West Street, also sustained severe structural damage, crippling the phone system. Other critical services, such as the transportation system running through the World Trade Center site, were also destroyed and disrupted. The Development of Health and Safety Standards at the Site Conditions at the World Trade Center site, particularly the hazards posed by the dust and contaminants that enveloped lower Manhattan for weeks following the attacks, posed significant dangers to the rescue and recovery workers. In the months following September 11, and continuing to the close of operations at the site in June of 2002, the Occupational Safety and Health Administration (“OSHA”) reported levels of various contaminants, including dioxin and asbestos, in excess of OSHA’s permissible exposure limits. The debris pile itself, containing what remained of two 110-story towers of concrete and steel, created its own volatile, unstable, and inherently dangerous worksite. Implementation and enforcement of viable and responsive health and safety standards was therefore essential. The workers at the site were presented with a dangerous environment, below and surrounding their work activities, threatening their health and safety…

124  THE LAW OF EMERGENCIES

The Role of Federal Agencies The enormity of the task necessitated the involvement of, and cooperation with, federal agencies. Although the City, through the DDC, assumed primary control over the site, several federal agencies, including FEMA, OSHA, the EPA and the United States Army Corps of Engineers (“Army Corps”), participated in the rescue and recovery effort. These various agencies would ultimately play an active role in the efforts at the World Trade Center, most particularly through their attendance at meetings addressing overall concerns of worker health and safety and through their assistance in developing and enforcing appropriate health and safety protocols responsive to such concerns. The Activation of Federal Assistance [President Bush’s September 14 declaration of a state of emergency activated the Stafford Act.] Activation of the Stafford Act … allowed for implementation of the course of federal assistance provided pursuant to the framework outlined in the Federal Response Plan (“FRP”). The FRP, an agreement among twenty-seven federal agencies, “establishes a process and structure for the systematic, coordinated, and effective delivery of federal assistance to address the consequences of any major disaster or emergency declared under the [Stafford Act].” Specifically, the FRP sets forth a “Basic Plan,” presenting “the policies and concept of operations that guide how the Federal Government will assist disaster-stricken State and local governments.” The Basic Plan provides that, upon exhaustion of local resources and at the request of the affected local government, FEMA shall operate as the lead federal agency for coordinating an appropriate federal response, providing for both technical and financial assistance. The FRP further coordinates the structure and nature of federal assistance by grouping the types of federal assistance most likely to be utilized by overwhelmed state and local governments into twelve separate Emergency Support Functions (“ESFs”). Each individual ESF is headed by a primary agency “designated on the basis of its authorities, resources, and capabilities in the particular functional area,” and assisted by one or more other federal agencies acting in a supporting capacity. As the lead agency in charge of coordinating any federal response pursuant to a declaration of emergency, FEMA is authorized to activate “some or all of the ESFs, as necessary.” Pursuant to activation of the FRP, and FEMA’s subsequent activation of the relevant ESFs, OSHA, the EPA and the Army Corps each provided technical and physical assistance to the City of New York in their respective areas of expertise and authority. Federal financial assistance was also provided throughout the duration of the recovery effort with FEMA promising to cover the cost of all operations at the World Trade Center Site… The Rescue and Recovery Effort Comes to a Close From the time that the rescue and recovery operation began at the World Trade Center site in the moments following the September 11 attacks, to the close of operations in June of 2002, work at the site never ceased, continuing twenty-four hours a day, seven days a week, including holidays, with the exception only of Veteran’s Day 2001. Despite the enormity of the task, however, work

Chapter 8 l Response Coordination and Incident Command Systems  125

progressed at a rate that many could not have imagined and, as early as April of 2002, the transition of control over the site from the DDC to the Port Authority was being designed and implemented. On May 10, 2002, control over Seven World Trade Center was returned to the Port Authority. The turnover of control as to the remainder of the World Trade Center complex followed shortly thereafter, on June 30, 2002, with the Port Authority once again assuming complete responsibility for the site. Although control has officially been returned to the Port Authority, work at the site continues to this day with efforts now turned to the completion of all steps necessary to rebuilding…

Critical Thinking Identify the actions and resource available enabled by each of the multiple declarations that followed the attack.

Developing a Comprehensive Response Plan After September 11, Congress and the President sought to enhance national preparedness to respond to disasters of all sorts. One outcome was the creation of the Department of Homeland Security (see Chapter  5), which merged a number of agencies from different departments, each of which had been responsible for some aspect of preparedness or response. The following Presidential Directive set forth the lines of command and communication in light of the new bureaucratic structure.

Homeland Security Presidential Directive (HSPD) 5 The White House, February 28, 2003 Subject: Management of Domestic Incidents Policy …(3) To prevent, prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies, the United States Government shall establish a single, comprehensive approach to domestic incident management. The objective of the United States Government is to ensure that all levels of government across the Nation have the capability to work efficiently and effectively together, using a national approach to domestic incident management. In these efforts, with regard to domestic incidents, the United States Government treats crisis management and consequence management as a single, integrated function, rather than as two separate functions. (4) The Secretary of Homeland Security is the principal Federal official for domestic incident management. Pursuant to the Homeland Security Act of 2002, the Secretary is responsible for coordinating Federal operations within the United States to prepare for, respond to, and recover from

126  THE LAW OF EMERGENCIES

terrorist attacks, major disasters, and other emergencies. The Secretary shall coordinate the Federal Government’s resources utilized in response to or recovery from terrorist attacks, major disasters, or other emergencies if and when any one of the following four conditions applies: (1) a Federal department or agency acting under its own authority has requested the assistance of the Secretary; (2) the resources of State and local authorities are overwhelmed and Federal assistance has been requested by the appropriate State and local authorities; (3) more than one Federal department or agency has become substantially involved in responding to the incident; or (4) the Secretary has been directed to assume responsibility for managing the domestic incident by the President. (5) Nothing in this directive alters, or impedes the ability to carry out, the authorities of Federal departments and agencies to perform their responsibilities under law. All Federal departments and agencies shall cooperate with the Secretary in the Secretary’s domestic incident management role. (6) The Federal Government recognizes the roles and responsibilities of State and local authorities in domestic incident management. Initial responsibility for managing domestic incidents generally falls on State and local authorities. The Federal Government will assist State and local authorities when their resources are overwhelmed, or when Federal interests are involved. The Secretary will coordinate with State and local governments to ensure adequate planning, equipment, training, and exercise activities. The Secretary will also provide assistance to State and local governments to develop all-hazards plans and capabilities, including those of greatest importance to the security of the United States, and will ensure that State, local, and Federal plans are compatible. (7) The Federal Government recognizes the role that the private and nongovernmental sectors play in preventing, preparing for, responding to, and recovering from terrorist attacks, major disasters, and other emergencies. The Secretary will coordinate with the private and nongovernmental sectors to ensure adequate planning, equipment, training, and exercise activities and to promote partnerships to address incident management capabilities. … Tasking (14) The heads of all Federal departments and agencies are directed to provide their full and prompt cooperation, resources, and support, as appropriate and consistent with their own responsibilities for protecting our national security, to the Secretary, the Attorney General, the Secretary of Defense, and the Secretary of State… (15) The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Incident Management System (NIMS). This system will provide a consistent nationwide approach for Federal, State, and local governments to work effectively and efficiently together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity. To provide for interoperability and compatibility among Federal, State, and local capabilities, the NIMS will include a core set of concepts, principles, terminology, and technologies covering the incident command system; multiagency coordination systems; unified command; training; identification and management of resources (including systems for classifying types of resources); qualifications and certification; and the collection, tracking, and reporting of incident information and incident resources. (16) The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Response Plan (NRP). The Secretary shall consult with appropriate Assistants to the President (including the Assistant to the President for Economic Policy) and the Director of the Office of Science and Technology Policy, and other such Federal officials as may be appropriate, in developing and implementing the NRP. This plan shall integrate Federal Government domestic

Chapter 8 l Response Coordination and Incident Command Systems  127

prevention, preparedness, response, and recovery plans into one all-discipline, all-hazards plan. The NRP shall be unclassified. If certain operational aspects require classification, they shall be included in classified annexes to the NRP. The NRP replaced the Federal Response Plan mentioned in the September 11 case. In 2008, the National Response Framework replaced the NRP. (a) The NRP, using the NIMS, shall, with regard to response to domestic incidents, provide the structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers and for exercising direct Federal authorities and responsibilities, as appropriate. (b) The NRP will include protocols for operating under different threats or threat levels; incorporation of existing Federal emergency and incident management plans (with appropriate modifications and revisions) as either integrated components of the NRP or as supporting operational plans; and additional operational plans or annexes, as appropriate, including public affairs and intergovernmental communications. (c) The NRP will include a consistent approach to reporting incidents, providing assessments, and making recommendations to the President, the Secretary, and the Homeland Security Council. … (18) The heads of Federal departments and agencies shall adopt the NIMS within their departments and agencies and shall provide support and assistance to the Secretary in the development and maintenance of the NIMS. All Federal departments and agencies will use the NIMS in their domestic incident management and emergency prevention, preparedness, response, recovery, and mitigation activities, as well as those actions taken in support of State or local entities. The heads of Federal departments and agencies shall participate in the NRP, shall assist and support the Secretary in the development and maintenance of the NRP, and shall participate in and use domestic incident reporting systems and protocols established by the Secretary. … (20) Beginning in Fiscal Year 2005, Federal departments and agencies shall make adoption of the NIMS a requirement, to the extent permitted by law, for providing Federal preparedness assistance through grants, contracts, or other activities. The Secretary shall develop standards and guidelines for determining whether a State or local entity has adopted the NIMS. …

Critical Thinking Based on what you have learned, identify the sources of law that give the President the authority to issue this directive.

128  THE LAW OF EMERGENCIES

THE NATIONAL INCIDENT MANAGEMENT SYSTEM The National Incident Management System (NIMS) establishes standardized incident management protocols and procedures that all responders—Federal, State, and local—should use to conduct and coordinate response actions. It sets forth a “core set of doctrine, concepts, principles, terminology, and organizational processes to enable effective, efficient, and collaborative incident management at all levels” of government. The NIMS provides a common, flexible framework within which government and private entities at all levels can work together to manage domestic incidents of any magnitude. In March 2004, the Secretary of Homeland Security approved the NIMS and sent a memorandum to officials at all levels of the government asking for continued cooperation and assistance in further developing and implementing the NIMS. The central component of the NIMS is the Incident Command System (ICS) (Fig. 8-1). The ICS grew out of conflicts experienced by federal, state, and local firefighting units when responding to wildfires in the western United States in the 1970s.

FIGURE 8-1  Structure of Incident Command System.

Chapter 8 l Response Coordination and Incident Command Systems  129

… The ICS provides a means to coordinate the efforts of individual responders and agencies as they respond to and help manage an incident. The ICS organization, the structure and size of which can be tailored to the complexity and size of any given incident, comprises five major functional areas—Command, Planning, Operations, Logistics, and Finance/Administration. … ICS requires that a command system be established from the onset of incident operations, thereby ensuring a unified command and the efficient coordination of multiagency and multijurisdictional efforts. Recognizing that most incidents are managed locally, the command function under ICS is set up at the lowest level of the response, and grows to encompass other agencies and jurisdictions as they arrive. Some incidents that begin with a single response discipline (e.g., fire or police department) within a single jurisdiction may rapidly expand to multi-discipline, multijurisdictional incidents requiring significant additional resources and operational support. The concept of unified command is both more important and more complicated when local, State, and Federal commanders are required to coordinate their efforts. ICS clarifies reporting relationships and eliminates confusion caused by multiple, and potentially conflicting, directions and actions. The National Response Plan requires senior officials from multiple levels of government to come together at a single location to establish a common set of objectives and a single incident plan. This group, referred to as the “Unified Command,” provides for and enables joint decisions on objectives, strategies, plans, priorities, and public communications… [Federal-State-Local Coordination] After a Stafford Act declaration, FEMA, on behalf of the Federal government, receives State requests for assistance and fulfills them by tasking other Federal departments or agencies with the appropriate expertise or resources to meet the specific needs. This is often referred to as a “pull” system for Federal assistance because local and State governments must identify needs and make specific requests for assistance before the Federal government can deliver—they “pull” assistance from the Federal government. Equally important to understanding the current “pull” system is the method in which Federal assistance is delivered to those in need—relying on the State as an intermediary between the Federal government and any other entity. In many cases, the Federal government will satisfy a State request by providing commodities or assets to the State. In so doing, the Federal government is helping the State meet the needs of their local governments and first responders, as well as various operational components of the State. The Federal government does not always directly deliver its assistance to local governments or others in need. The State’s role has been compared to retail sales in terms of organization, delivery, and management. Under this description, the Federal government’s role is comparable to wholesale. This generally works well and should continue in the majority of instances. However, in some instances the State and local governments will be overwhelmed beyond their ability to satisfy their traditional roles in this system. Indeed, in some instances, State and local governments and responders may become victims themselves, prohibiting their ability to identify, request, receive, or deliver assistance. This is the moment of catastrophic crisis—the moment when 911 calls are no longer answered; the moment when hurricane victims can no longer be timely evacuated or evacuees can no longer find shelter; the moment when police no longer patrol the streets, and the rule of law begins to break down. (Hurricane Katrina—Lessons Learned, 2003)

130  THE LAW OF EMERGENCIES

Critical Thinking As we learned from Katrina, “all pull and no push” does not always work. Is there any constitutional barrier to assigning more responsibility and initiative to the federal government? If not, what factors produce such reluctance?

DEFENDING THE NATIONAL RESPONSE PLAN The first test of the National Response Plan came in 2005, when Hurricane Katrina devastated New Orleans and much of the Gulf Coast. Whatever else went wrong—and many things did—the federal response was poorly managed. Professor Michael Greenberger argues that the fault lay not in the plan, but in how it was executed: It is now widely acknowledged that the NRP was triggered quite belatedly during Katrina. On a practical basis, however, there is every indication that it was never implemented as intended, i.e. there was almost certainly no central federal operations unit composed of cabinet or sub-cabinet level representatives sitting in an executive operations center communicating on a real-time basis with state and local government. Instead, the federal response, even after the NRP was enacted, was mostly ad hoc, and to the extent it was centralized, the federal representatives were not sufficiently high level. … [T]he NRP is a well-thought out, all hazards plan that addresses the necessity of a delicate balance between different levels of government. If implemented as intended, with true coordination of between stakeholders from all levels of government in a classic war room-like setting, the NRP should end the false dichotomy about whether state and local units or the federal government supervises the response and recovery effort. (Greenberger, 2006)

The National Response Framework (NRF) In March 2008, the Department of Homeland Security replaced the NRP with a new and very similar document that it calls the National Response Framework, in part to emphasize that the set of priorities and functions it outlines is less of a specific plan than a framework to guide operations in many different types of situations. The NRF is designed to be fully or partially implemented, depending on the scale of the event. Like the NRP before it, it is geared toward translating the NIMS template into specific allocations of responsibility. HSPD-5 is still in effect. Drawing on lessons from Katrina, the NRF modified the NRP’s heavy emphasis on the secondary nature of federal responsibilities, as compared to state and local relief activities. Official policy still includes “a basic premise … that incidents are generally handled at the lowest jurisdictional level possible.” However, the DHS also states: Following a catastrophic event, segments of State, tribal, and local authorities as well as NGOs [non-governmental organizations, such as the Red Cross] and the private

Chapter 8 l Response Coordination and Incident Command Systems  131

sector may be severely impacted. The Federal Government will employ a proactive Federal response to expedite resources to the impacted area. In rare instances…, the Federal Government may temporarily assume certain roles typically performed by [other levels of government]. For example, … the Federal Government may establish a unified command structure … As soon as State, tribal or local authorities reestablish the incident command structure, the Federal Government will transition to its normal role [of ] support[]… (DHS, National Response Framework: Frequently Asked Questions)

Because a massive catastrophe could impede the ability of a governor to follow the normal process for seeking federal assistance, the NRF has created a new category of event: “catastrophic incident.” A catastrophic incident is defined as any natural or manmade incident, including terrorism, that results in extraordinary levels of mass casualties, damage or disruption severely affecting the population, infrastructure, environment, economy, national morale, and/or government functions. (NRF, 2008)

Once the DHS Secretary determines that a catastrophic incident has occurred or is likely to occur, federal resources can be immediately sent to the area. The NRF also designates lead federal agencies for various functions and types of events. (These are called “emergency support functions.”) For example, FEMA is the lead agency for emergency management, emergency assistance, mass care, and search and rescue. The Army Corps of Engineers is the lead agency for public works and engineering, and DHS is in charge of communications. Law enforcement responsibility rests with the Department of Justice. If military troops are utilized, they retain their separate chain of command, and are not subject to direction by the officials operating under the NRF and NIMS.

On the Ground Although the overall approach to disaster response can quickly start to sound like alphabet soup, it is not that complicated. An Incident Command System (ICS) is simply a standardized management system that is built on modular units, the complexity of which can be scaled up or down depending on the extent of the problem. It establishes a common structure and vocabulary for all the agencies, at all levels, of government that are involved in a response. It can be used in a situation as simple as that involving several agencies from one jurisdiction— for example, local police and fire departments. Or it can be scaled up to accommodate multiple agencies from multiple jurisdictions, as in a large-scale emergency. NIMS is essentially one kind of an ICS. Central to the ICS/NIMS approach is the concept of unified command. Unified command, another standardized management approach, means that rather than have a silo-like approach in which each agency or jurisdiction operates independently, a collaborative structure is set up. If police, fire, and social services departments were all responding to a plane

132  THE LAW OF EMERGENCIES

crash, for example, representatives from each of those agencies would be working literally together, in the same location (an incident command post), and jointly making decisions, rather than proceeding with each agency issuing directions for the workers within its control without consultation with the other agencies. The lead person on site in charge of an agency’s operations would be the agency’s incident commander. Together, the incident commanders would make decisions. If no other level of government was involved, then the mayor, for example, might appoint one overall incident commander. In response to a large-scale disaster, the modular approach would scale up to accommodate the greater complexity and larger number of persons and entities involved. For example, all local agency leaders would report to the local incident commander; all state agency leaders would report to the state incident commander, and so forth. The incident commanders representing federal, state, and local operations would collaborate in the unified command. However, each agency would retain its full scope of legal authority and responsibility.

The Best of Both Effective response requires strong vertical lines in our organizations. Hierarchy provides the critical, unifying structure to the capacity of complex organizations. But effective response also requires strong horizontal relationships to put that capacity to work. We need to organize vertically and to work horizontally. Donald F. Kettl, University of Pennsylvania

Emergency at the Airport Airports are major hubs of global mobility, key assets of the national and global economy. They are also community assets that may be used in federal, state, and local emergencies as important logistical hubs for response and management. As fixed, public structures with millions of people passing through them annually, they are prime targets for terrorist attacks. It is difficult to get a general picture of the complex, overlapping agencies/authorities in charge of managing emergencies, and security at major US airports, as a quote from the director of public safety and security at Portland International Airport puts it: “If you’ve seen one airport, you’ve seen one airport.” Coordination is essential when preparing for emergency events; these are tested on regular drills. The attacks of September 11, 2001, resulted in the most sweeping changes as a federalized security system was put in place. Airport security had always been a joint public–private undertaking, but after 9/11 emphasis shifted to public operations. Beyond the threat of terrorism, other critical events such as the 2003 SARS epidemic and Hurricane Katrina in 2005 have led to changes in US airport policies, organization, operations, and structure, including changes in emergency response and readiness. Pursuant to the National Response Framework

Chapter 8 l Response Coordination and Incident Command Systems  133

(NRP), all disaster response starts locally and the response escalates to track the evolution of the incident. Disaster management at airports involves airports internally and airports in a community context. In addition to preparing for aircraft accidents, airports are required to plan for a variety of other human made or natural disaster scenarios, or “airport emergencies”: any occasion or instance, natural or human made, that warrants action to save lives and protect property and public health. The Federal Aviation Administration’s Code of Federal Regulations Part 139 requires that each airport holding an Airport Certificate “develop and maintain an Airport Emergency Plan (AEP) designed to minimize the possibility and extent of personal injury and property damage on the airport in an emergency.” There has been a gradual shift from the fire departments almost exclusive authority over emergency management (except for security) to professionalized airport emergency management. Some larger airports have emergency management departments with certified personnel who have undergone emergency management courses, as well as various FEMA Incident Command courses. The Incident Command function at these large airports is usually assigned to the Airport Operations department, with separate emergency management personnel. At first glance, it may seem like the TSA (post 9/11, under the DHS) protects all US airports by screening at security checkpoints, while U.S. Customs and Border Protection checks identity documents and immigration. However, airline terminals do not constitute a single security zone. Security at major US airports is handled by agents of overlapping jurisdictions, determining which federal, state, or local agency is responsible for security on various parts of the perimeter. JFK Airport is a good example of this complexity. The airports operator is the Port Authority of New York and New Jersey, which is run jointly by two states. Law enforcement is controlled primarily by the police department of the Port Authority (PAPD), it is in charge of coordinating security and emergency response, provides law enforcement, fire rescue, and emergency medical services to the airport. They can also call in the New York Police Department. The Chicago police department is the primary law enforcement agency at O’Hare and Midway International airports. Chicago police provide the command structure, armed officers, and specialized teams for explosives and active shooter response and work in close coordination with the FBI, TSA, US Customs and Border Control, aviation security officers, otherwise known as ASOs, and others to implement a multilayered approach for protecting the airports. A good example of the context specific nature of the presence of various agencies is the 2007 emergency response preparedness drill conducted at Boston Logan International Airport, pursuant to FAA Part 139 regulations. The Chief of the Massachusetts Port Authority Fire Rescue Department lead his airport team and other stakeholders in the drill. This exercise—involving a hijacked plane scenario—enabled the effective integration of a multitude of new stakeholders, including the Department of Homeland Security, Transportation Security Administration, Federal Air Marshals, United States Attorney, Massachusetts National Guard Air Wing, Northeast Air Defense System, North American Air Defense System, who joined 50 other agencies in executing the exercise.

134  THE LAW OF EMERGENCIES

LA Fire Dept .

FBI/or LA PD (LAX has a dedicated Airport Police force, part of LAPD)

LAWA Superintendent of Airport Operations

FIGURE 8-2  Three parallel agencies charged with assigning the “Incident Commanders” in the various emergency scenarios.

The following excerpt from the Los Angeles World Airports (LAWA) Emergency Plan (EP) provides another example of incident command structure and possible involved agencies. 1. During all fire or medical related emergencies, the senior Los Angeles Fire Department officer present will be in command at the scene. 2. During all emergencies involving bombings or bomb threats, the senior Federal Bureau of Investigation or Los Angeles Police Department officer present will be in command at the scene. 3. During all other airfield emergencies not involving responsibilities of the Los Angeles Police or Fire Departments or the Federal Bureau of Investigation, the LAWA Superintendent of Airport Operations, representing the Airport Manager will be in charge. Below is a simple illustration of these three parallel agencies charged with assigning the “Incident Commanders” in the various emergency scenarios (Fig. 8-2). For example in case of a bomb threat against an aircraft, Airport Police must immediately notify: LAPD, LA Fire Department, Airport Manager, Airport Operations, TSA, FBI, and the FAA Air Traffic Control Tower. The LA Fire Department is in charge of notifying EMS in all scenarios. The active shooter incident at LAX on Nov 1, 2013, put the system to a substantial test. LAWA assessed the incident response in a 2014 Review and concluded: “Success of emergency response: joint response from LAW Airport Police and LAPD; immediate substantial multiagency response from public safety agencies to LA Fire Department and local police; unified multiagency command established and maintained. Shortcomings: Emergency alert warning system needs upgrading, mass notification was lacking; multiagency response needs more knowledge and training in basic incident command principles.”

Is the ICS a Form of Law? As you have seen, the ICS originated as an initiative by firefighters in western states to improve operational efficiency and now has been adopted as a nationwide, all-hazards template by federal and state officials. Consider how it is used as a metric for legal liability in the following case:

Chapter 8 l Response Coordination and Incident Command Systems  135

Donna Prince L. v. Waters New York Supreme Court, Appellate Division, 2008. 850 NYS2d 803 Plaintiff commenced this action seeking damages for, inter alia, the wrongful death of her husband (decedent). Decedent, a volunteer firefighter, was killed while fighting a fire that started in the basement of a house located in the Town of Pompey. Plaintiff alleged that defendant County of Onondaga (County) is liable pursuant to the doctrine of respondeat superior* for decedent’s death, which was allegedly caused by the negligence of defendant Mike Waters, as the County’s Fire Control Coordinator, and that defendants are also liable pursuant to General Municipal Law § 205–a (hereafter §205-a). Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted the motion. We note at the outset that plaintiff has abandoned the wrongful death cause of action, inasmuch as she failed to oppose that part of defendants’ motion with respect to it and, indeed, has not addressed it on appeal. We agree with plaintiff, however, that the court erred in granting that part of defendants’ motion for summary judgment dismissing the §205-a cause of action, and we therefore modify the order accordingly. To establish their entitlement to summary judgment dismissing the §205-a cause of action, defendants had to establish as a matter of law “either that [they] did not negligently violate any relevant government provision or that, if [they] did, the violation did not directly or indirectly cause plaintiff’s injuries.” The type of statute, ordinance, or regulation that may give rise to liability pursuant to §205-a is one “found in a ‘well-developed body of law and regulation’ that ‘imposes clear duties.’” [Ed. Note: To support a cause of action under §205-a, a plaintiff law enforcement officer, inter alia, must identify the statute or ordinance with which the defendant failed to comply. Liability pursuant §205 will exist where there is negligent noncompliance with “any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus,” provided that the statute, ordinance, rule, order, or requirement cited is found in a “well-developed bod[y] of law and regulation” that “impose[s] clear duties.”] According to plaintiff, defendants failed to comply with the National Interagency Incident Management System–Incident Command System (NIIMS–ICS), adopted in New York by Executive Order as the State standard emergency command and control system. … [P]laintiff thereby identified a relevant government provision that may give rise to liability under §205-a. The NIIMS–ICS may form the predicate for liability pursuant to §205-a because it “ ‘mandates a reasonably defined and precedentially developed standard of care,’ and does not require the trier of fact to ‘second-guess [a firefighter’s] split-second weighing of choices.’” * * * * Note: “Respondeat superior” means literally “let the master answer.” The phrase is used to denote the legal doctrine under which an employer can be held liable for damages caused by an employee who is acting within the scope of the job position.

Critical Thinking The implication of a court using the ICS system as a standard of care is that agencies, at least in New York State, will determine that they must use it or else risk liability. What are the advantages and disadvantages of that result?

136  THE LAW OF EMERGENCIES

Summary The ICS and NIMS did not originate with the September 11 attacks, but the lessons learned from that complex and tragic event drove their adoption through a series of actions by the President, Congress, and DHS. The Donna Prince L. case indicates that the law of negligence and personal injuries may force even more careful adherence to these standards.

Important Terms ● ● ● ● ● ● ●

Catastrophic incident Domestic incident management Emergency Support Functions Incident Command System National Incident Management System National Response Framework Unified Command

Review Questions 1. See if you can diagram the structures for ICS, NIMS, and the NRF. How does the idea of unified command fit into these? 2. What kinds of complications might arise from this arrangement because military units like the National Guard are under a separate command structure? 3. How does the NRF’s category of “catastrophic incident” compare to the Stafford Act’s categories of “emergency” and “disaster”? To the National Emergency Act? To the declaration of a public health emergency? What function does the NRF category serve?

9 The Constitution and Individual Rights Introduction Our Constitution is not only a charter establishing the structure of our government, it is also a repository of individual rights and liberties. Many rights, like free speech and the right not to incriminate oneself, have become such staples of popular culture that we know them from TV or the movies, if nowhere else. Indeed, the United States has been described as a country with a culture of the Constitution, a set of norms—centered in beliefs in freedom, fairness, and equality—that permeates social life as well as the legal system. In this chapter, we can only touch the surface of constitutional law. We will begin with freedom of expression, and then move to the protections for liberty and equality in the Fourteenth Amendment. In addition to these substantive rights, we will examine the minimum procedural criteria for government action that curtails individual liberty. We will close the chapter by studying an ancient writ, habeas corpus, and specifically its use when governments take emergency action.

The Concept of Negative Liberty The U.S. Constitution is often referred to as a promise of “negative liberty.” What does that mean? “Negative liberty” embodies two related concepts. Both are included in the following description by the Supreme Court: The [Due Process] Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the state itself to deprive individuals of life, liberty or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. …Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes. (DeShaney v. Winnebago County, 1989)

First, the phrase “negative liberty” reflects the distinction between freedom from (negative), as opposed to freedom to (positive). The Constitution does not require the government to provide even basic necessities to the people, as constitutions in some other countries do. There is no federal constitutional right to food or health care or shelter, for example. The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00009-7 © 2018 Elsevier Inc. All rights reserved.

139

140  THE LAW OF EMERGENCIES

Second, the Constitution seeks to protect individuals from actions by government, but not from actions of private parties such as corporations. The overriding concern of the Framers was the fear that the powers of government could overwhelm and suppress the liberty of individuals. For that reason, the Constitution has been interpreted to protect individuals only from actions taken by some arm of government—federal, state, or local. This does not mean that no laws restrict the actions of private individuals or entities such as corporations. Congress has the power to enact, and frequently has enacted, statutes that regulate myriad forms of private conduct, such as antitrust laws or environmental protection laws, and that provide selected benefits, such as medical insurance for persons over 65 or food stamps for the poor. Because it is elected, Congress acts as an arm of “the democratic political processes” that the Court was referring to in the DeShaney quote above. As we know, statutes must fall within the scope of the powers allocated to Congress in Article I of the Constitution. This chapter will discuss only constitutional rights, not individual rights created by statutes passed by Congress, which will be the subject of Chapter 10. Many examples are drawn from health or emergency contexts, and we will see the importance of incorporating principles of individual liberty into the law of emergencies. Government agencies are almost always the primary actors in the response to an emergency, and whenever government action is involved, the Constitution applies and must be adhered to. What happens in situations in which government officials assert a claim to act outside the Constitution because of the urgency of the situation? Those are some of the problems that we will analyze.

Freedom of Expression Congress shall make no law … abridging the freedom of speech… The First Amendment is first in more ways than one. It is not simply the first in the list of rights added to the Constitution. It is in many ways the first and most fundamental principle of a democracy: that individuals can voice their opinions without fear that government will punish them for their views. Justice Kennedy described the basic concepts behind protection for speech and other forms of expression in a recent case (the citations in this excerpt are omitted): [A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” As a result, the Constitution “demands that content-based restrictions on speech be presumed invalid … and that the Government bear the burden of showing their constitutionality.” In light of the substantial and expansive threats to free expression posed by contentbased restrictions, this Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage … [based on] an ad hoc balancing of relative social costs and benefits.” Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expression] long familiar to the bar.’” Among these categories are advocacy intended, and likely,

Chapter 9 l The Constitution and Individual Rights  141

to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called “fighting words” [insults so harsh that they can be expected to trigger a violent response]; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent, although a restriction under the last category is most difficult to sustain. These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules… The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. (United States v. Alvarez, 2012)

This quotation provides insights into three key aspects of First Amendment law. First is the principle with which you should already be familiar: The government cannot censor speech because of the viewpoint or message that it expresses. This is, of course, the rock upon which constitutional law in this area is built. Restrictions that are based on content other than political viewpoint (advertising, for example) are also subjected to searching review, although courts are somewhat less stringent in those situations. Courts frequently categorize laws that regulate expressive activities as content-based or content-neutral, or viewpointbased or viewpoint neutral. The second main point of the quoted passage is that it furnishes a list of kinds of speech that are categorically excluded from First Amendment protection, such as defamation, fraud, or pornography depicting children. While there can be questions about whether particular examples of speech fall into or outside the boundaries of these categories, the list of categories that are excluded from First Amendment shelter has remained stable for some time. The third principle is the statement that for restrictions based on the content of the speech being restrained, “the Government bear[s] the burden of showing their constitutionality.” This refers to the understanding that the government will have the burden of persuading a judge or jury that the restrictions being challenged are justified. For highly protected forms of speech, such as political expression, the test for doing so is quite high: the government must demonstrate that the restriction is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that goal. In addition to what we learn from the passage by Justice Kennedy, two other important principles characterize the case law of First Amendment interpretation. First, location and context can be significant. For example, wearing a button that urges votes for candidate X when walking down the street is essentially immune from regulation as the expression of an individual’s political beliefs, but if a government employee wears the same button, regulation may be permissible because it is reasonable for the government acting as an employer to limit divisive speech in the workplace. Second, conduct as well as speech can be expressive. Picketing and protest marches are classic examples. When expressive conduct is involved, the analysis shifts slightly, but the focus remains on whether regulation is content- or viewpoint-neutral. Often, the courts examine whether laws create time, place, and manner rules that apply to everyone equally.

142  THE LAW OF EMERGENCIES

Clark v. Community for Creative Non-Violence U.S. Supreme Court, 1984 Justice White delivered the opinion of the Court. The issue in this case is whether a National Park Service regulation prohibiting camping in certain parks violates the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in connection with a demonstration intended to call attention to the plight of the homeless. We hold that it does not… The Interior Department, through the National Park Service, is charged with responsibility for the management and maintenance of the National Parks and is authorized to promulgate rules and regulations for the use of the parks in accordance with the purposes for which they were established. The network of National Parks includes the National Memorial-core parks, Lafayette Park, and the Mall, which are set in the heart of Washington, D.C., and which are unique resources that the Federal Government holds in trust for the American people. Lafayette Park is a roughly 7-acre square located across Pennsylvania Avenue from the White House. Although originally part of the White House grounds, President Jefferson set it aside as a park for the use of residents and visitors. It is a “garden park with a … formal landscaping of flowers and trees, with fountains, walks and benches.” The Mall is a stretch of land running westward from the Capitol to the Lincoln Memorial some two miles away. It includes the Washington Monument, a series of reflecting pools, trees, lawns, and other greenery. It is bordered by, inter alia, the Smithsonian Institution and the National Gallery of Art. Both the Park and the Mall were included in Major Pierre L’Enfant’s original plan for the Capital. Both are visited by vast numbers of visitors from around the country, as well as by large numbers of residents of the Washington metropolitan area. Under the regulations involved in this case, camping in National Parks is permitted only in campgrounds designated for that purpose. No such campgrounds have ever been designated in Lafayette Park or the Mall. Camping is defined as “the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or … other structure … for sleeping or doing any digging or earth breaking or carrying on cooking activities.”… Demonstrations for the airing of views or grievances are permitted in the Memorial-core parks, but for the most part only by Park Service permits. Temporary structures may be erected for demonstration purposes but may not be used for camping. In 1982, the Park Service issued a renewable permit to respondent Community for Creative Non-Violence (CCNV) to conduct a wintertime demonstration in Lafayette Park and the Mall for the purpose of demonstrating the plight of the homeless. The permit authorized the erection of two symbolic tent cities: 20 tents in Lafayette Park that would accommodate 50 people and 40 tents in the Mall with a capacity of up to 100. The Park Service, however, relying on the above regulations, specifically denied CCNV’s request that demonstrators be permitted to sleep in the symbolic tents… We assume that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that

Chapter 9 l The Constitution and Individual Rights  143

they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. It is true that a message may be delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative. Symbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech. (United States v. O’Brien) …The permit that was issued authorized the demonstration but required compliance with [the regulation] which prohibits “camping” on park lands, that is, the use of park lands for living accommodations, such as sleeping, storing personal belongings, making fires, digging, or cooking. These provisions, including the ban on sleeping, are clearly limitations on the manner in which the demonstration could be carried out. That sleeping, like the symbolic tents themselves, may be expressive and part of the message delivered by the demonstration does not make the ban any less a limitation on the manner of demonstrating, for reasonable time, place, or manner regulations normally have the purpose and direct effect of limiting expression but are nevertheless valid. Neither does the fact that sleeping, arguendo, may be expressive conduct, rather than oral or written expression, render the sleeping prohibition any less a time, place, or manner regulation. To the contrary, the Park Service neither attempts to ban sleeping generally nor to ban it everywhere in the parks. It has established areas for camping and forbids it elsewhere, including Lafayette Park and the Mall. Considered as such, we have very little trouble concluding that the Park Service may prohibit overnight sleeping in the parks involved here. …[I]t is not disputed here that the prohibition on camping, and on sleeping specifically, is content-neutral and is not being applied because of disagreement with the message presented. Neither was the regulation faulted, nor could it be, on the ground that without overnight sleeping the plight of the homeless could not be communicated in other ways. The regulation otherwise left the demonstration intact, with its symbolic city, signs, and the presence of those who were willing to take their turns in a day-and-night vigil. Respondents do not suggest that there was, or is, any barrier to delivering to the media, or to the public by other means, the intended message concerning the plight of the homeless. It is also apparent to us that the regulation narrowly focuses on the Government’s substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping—using these areas as living accommodations—would be totally inimical to these purposes, as would be readily understood by those who have frequented the National Parks across the country and observed the unfortunate consequences of the activities of those who refuse to confine their camping to designated areas… …If the Government has a legitimate interest in ensuring that the National Parks are adequately protected, which we think it has, and if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment as a reasonable regulation of the manner in which a demonstration may be carried out. [T]he prohibition against camping, with its ban on sleeping overnight, is a reasonable time, place, or manner regulation that withstands constitutional scrutiny…

144  THE LAW OF EMERGENCIES

Boos v. Barry U.S. Supreme Court, 1988 Justice O’Connor delivered the opinion of the Court. The question presented in this case is whether a provision of the District of Columbia Code, § 22-1115, violates the First Amendment… Petitioners are three individuals who wish to carry signs critical of the Governments of the Soviet Union and Nicaragua on the public sidewalks within 500 feet of the embassies of those Governments in Washington, D.C. Petitioners Bridget M. Brooker and Michael Boos, for example, wish to display signs stating “RELEASE SAKHAROV” and “SOLIDARITY” in front of the Soviet Embassy. Petitioner J. Michael Waller wishes to display a sign reading “STOP THE KILLING” within 500 feet of the Nicaraguan Embassy. All of the petitioners also wish to congregate with two or more other persons within 500 feet of official foreign buildings… …Section 22-1115 reads in pertinent part as follows: “It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party or organization … within 500 feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes … or to congregate within 500 feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of said District.” The first portion of this statute, the “display” clause, applies to signs tending to bring a foreign government into public odium or public disrepute, such as signs critical of a foreign government or its policies. The display clause applies only to the display of signs, not to the spoken word. The second portion of the statute, the “congregation” clause, addresses a different concern. It prohibits congregation, which District of Columbia common law defines as an assemblage of three or more people. Both of these prohibitions generally operate within a 500foot zone surrounding embassies or consulates owned by foreign governments, but the statute also can extend to other buildings if foreign officials are inside for some official purpose. Analysis of the display clause must begin with several important features of that provision. First, the display clause operates at the core of the First Amendment by prohibiting petitioners from engaging in classically political speech. We have recognized that the First Amendment reflects a “profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open,” and have consistently commented on the central importance of protecting speech on public issues. This has led us to scrutinize carefully any restrictions on public issue picketing. Second, the display clause bars such speech on public streets and sidewalks, traditional public fora that “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In such places, which occupy a “special position in terms of First Amendment protection,” the government’s ability to restrict expressive activity “is very limited.”

Chapter 9 l The Constitution and Individual Rights  145

Third, § 22-1115 is content based. Whether individuals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not. One category of speech has been completely prohibited within 500 feet of embassies. Other categories of speech, however, such as favorable speech about a foreign government or speech concerning a labor dispute with a foreign government, are permitted. Our cases indicate that as a content-based restriction on political speech in a public forum, § 22-1115 must be subjected to the most exacting scrutiny. Thus, we have required the State to show that the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” We first consider whether the display clause serves a compelling governmental interest in protecting the dignity of foreign diplomatic personnel. Since the dignity of foreign officials will be affronted by signs critical of their governments or governmental policies, we are told, these foreign diplomats must be shielded from such insults in order to fulfill our country’s obligations under international law. As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide “adequate ‘breathing space’ to the freedoms protected by the First Amendment.” (Hustler Magazine, Inc. v. Falwell) A “dignity” standard, like the “outrageousness” standard that we rejected in Hustler, is so inherently subjective that it would be inconsistent with “our longstanding refusal to [punish speech] because the speech in question may have an adverse emotional impact on the audience.” (Hustler Magazine) We are not persuaded that the differences between foreign officials and American citizens require us to deviate from these principles here. The dignity interest is said to be compelling in this context primarily because its recognition and protection is part of the United States’ obligations under international law. The Vienna Convention on Diplomatic Relations, which all parties agree represents the current state of international law, imposes on host states “[the] special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” As a general proposition, it is of course correct that the United States has a vital national interest in complying with international law. The Constitution itself attempts to further this interest by expressly authorizing Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Art. I, § 8… The need to protect diplomats is grounded in our Nation’s important interest in international relations. This [interest] is even more true today given the global nature of the economy and the extent to which actions in other parts of the world affect our own national security. Diplomatic personnel are essential to conduct the international affairs so crucial to the well-being of this Nation… At the same time, it is well established that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” Thus, the fact that an interest is recognized in international law does not automatically render that interest “compelling” for purposes of First Amendment analysis…

146  THE LAW OF EMERGENCIES

Petitioners initially attack the congregation clause by arguing that it confers unbridled discretion upon the police. In addressing such a facial overbreadth challenge, a court’s first task is to ascertain whether the enactment reaches a substantial amount of constitutionally protected conduct. In making this assessment, we consider the actual text of the statute as well as any limiting constructions that have been developed. The congregation clause makes it unlawful “to congregate within 500 feet of any [embassy, legation, or consulate] and refuse to disperse after having been ordered so to do by the police.” Standing alone, this text is problematic both because it applies to any congregation within 500 feet of an embassy for any reason and because it appears to place no limits at all on the dispersal authority of the police. The Court of Appeals, however, has provided a narrowing construction that alleviates both of these difficulties. The Court of Appeals, we must first observe, read the congregation clause as distinct from the display clause, so the constitutional infirmity of the latter need not affect the former. Second, the Court of Appeals followed the lead of several earlier decisions and concluded that the statute permits the dispersal only of congregations that are directed at an embassy; it does not grant “police the power to disperse for reasons having nothing to do with the nearby embassy.” Finally, the Court of Appeals further circumscribed police discretion by holding that the statute permits dispersal “only when the police reasonably believe that a threat to the security or peace of the embassy is present.”… So narrowed, the congregation clause withstands First Amendment overbreadth scrutiny. It does not reach a substantial amount of constitutionally protected conduct; it merely regulates the place and manner of certain demonstrations. Unlike a general breach of the peace statute, the congregation clause is site specific; it applies only within 500 feet of foreign embassies. Moreover, the congregation clause does not prohibit peaceful congregations; its reach is limited to groups posing a security threat. As we have noted, “where demonstrations turn violent, they lose their protected quality as expression under the First Amendment.” These two limitations prevent the congregation clause from reaching a substantial amount of constitutionally protected conduct and make the clause consistent with the First Amendment. Petitioners argue that even as narrowed by the Court of Appeals, the congregation clause is invalid because it is impermissibly vague. In particular, petitioners focus on the word “peace,” which is not further defined or limited… [The DC Statute] It is crafted for a particular context and given that context, it is apparent that the “prohibited quantum of disturbance” is whether normal embassy activities have been or are about to be disrupted. The statute communicates its reach in words of common understanding and it accordingly withstands petitioners’ vagueness challenge… We conclude that the display clause of § 22-1115 is unconstitutional on its face. It is a content-based restriction on political speech in a public forum, and it is not narrowly tailored to serve a compelling state interest. We also conclude that the congregation clause, as narrowed by the Court of Appeals, is not facially unconstitutional.

Chapter 9 l The Constitution and Individual Rights  147

Critical Thinking Are the two prior cases consistent? How would you state the principles of law that they share in common? Are they inconsistent in any ways? Which parts of the factual context in each case did the Court rely on to reach its conclusions?

Substantive Due Process: Liberty Both the Fifth and Fourteenth Amendments prohibit “deprivation of life, liberty, or property without due process of law.” Why the seeming redundancy? The Fifth Amendment initially applied only to the federal government, because the constitutions of the original 13 states were thought to provide sufficient protection for individual rights against infringement by the state governments. In the wake of the Civil War, Congress enacted and the states ratified the Fourteenth Amendment, which applies explicitly to the states. (See Appendix 1 for the text of these Amendments.) The phrase “due process” sounds like it could concern only procedural questions. So long as the process is fair—say a majority vote of legislators—one might think that an individual’s liberty rights can be taken away. The courts have made clear, however, that more than a fair process is required if the right is especially important, or what the courts consider “fundamental.” This aspect of constitutional law is called “substantive due process.” To quote the Supreme Court, “The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests.” (Lawrence v. Texas, 2003) The deprivation of physical liberty through confinement is the paradigmatic example of infringement of a fundamental right. Of course, all criminal laws that carry imprisonment as a possible penalty can lead to confinement, so we know that at least sometimes these infringements are allowed. “Determining that a person has a “liberty interest” under the Due Process Clause does not end the inquiry; whether [an individual’s] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” (Washington v. Glucksberg, 1997) How does a court balance an individual’s liberty interest against the state’s interest in taking some action that would diminish it? In almost every instance, the outcome of a case will turn on whether the liberty interest has been classified as a fundamental right. In other words, some liberty interests are more important than others, and, because of their importance, the government may not infringe them without showing that the infringement is narrowly tailored to achieving a compelling state interest. Criminal laws that protect against or punish genuine harm to third parties pass this test.

148  THE LAW OF EMERGENCIES

We know that physical liberty is a fundamental right and others are specified in the text of the Constitution, such as the right of free expression or the right to nonestablishment of religion. Others have been the product of judicial interpretation, such as the right to travel or the right to marry, which are nowhere mentioned in the Constitution. As the Supreme Court stated: In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry; to have children; to direct the education and upbringing of one’s children; to marital privacy; to use contraception; to bodily integrity, to abortion … [and] the traditional right to refuse unwanted lifesaving medical treatment. (Washington v. Glucksberg , 1997)

In a famous dissenting opinion in a 1961 birth control case that was later adopted as reasoning by a majority of the Court, Justice John Harlan II explained the logic behind identifying certain extra-textual rights as fundamental: Were due process merely a procedural safeguard, it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which … could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Thus the guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards against executive usurpation and tyranny, have in this country become bulwarks also against arbitrary legislation. … Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint… …[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary

Chapter 9 l The Constitution and Individual Rights  149

impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. … (Poe v. Ullman, 1961)

Because the protection afforded to fundamental rights is so strong and because many of the most important rights are not explicitly stated in the Constitution but instead have been identified through the process of judicial interpretation, substantive due process law has become quite politically controversial. In a 1989 case ruling that the liberty interest for a person desiring assistance in dying was not fundamental, then Chief Justice Rehnquist described how the Justices approached this area of law: We ha[ve] always been reluctant to expand the concept of substantive due process, because guideposts for responsible decision-making in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court. … Our Nation’s history, legal traditions, and practices provide the crucial guideposts for responsible decision-making … [T]the development of this Court’s substantive-dueprocess jurisprudence has been a process whereby the outlines of the “liberty” specially protected by the Fourteenth Amendment—never fully clarified, to be sure, and perhaps not capable of being fully clarified—have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in dueprocess judicial review. (Washington v. Glucksberg, 1997)

In deciding whether to classify a liberty interest as fundamental, courts ask whether the right in question is deeply rooted in the nation’s history and traditions and whether it is central to the concept of ordered liberty. Many of the most controversial debates about Constitutional interpretation converge at this point. To take a recent example, Justices who argued that samesex marriage could not be considered a fundamental right reasoned that it is a relatively new development, not rooted in history. The Justices who ruled that same-sex couples do have a fundamental right to marry prevailed. They concluded that the same reasons that make marriage a fundamental right for different-sex couples—the importance of the freedom to build one’s family outside the confines of what majorities might wish, such as inter-racial marriage— applied to same-sex couples as well. This philosophy is sometimes referred to as a belief in a “living Constitution,” or one that can evolve as new technologies and social practices emerge.

150  THE LAW OF EMERGENCIES

Comparing the Standards What analysis do the courts use if they find that a particular liberty interest is not fundamental? Let’s imagine that someone asserts his freedom to decide where to park his car, and thereby challenges a parking ticket issued because the meter ran out, because it penalizes his exercise of that freedom. A court would find that, although one does have a reasonable degree of freedom to decide where to park one’s car, that liberty interest does not rise to the level of a fundamental right. So the court would ask simply whether the government’s action was rationally related to a legitimate state interest. Managing parking patterns on city streets is a legitimate interest of government, and imposing reasonable time limits on parking is a rational way to further that interest. Therefore, such parking laws are constitutional. In summation, compare the two standards: To justify a government action infringing a fundamental right, the infringement must be narrowly tailored to achieve a compelling state interest. ■ To justify a government action infringing a lesser liberty interest, the infringement must be rationally related to a legitimate state interest. ■

On occasion, even a law curbing a fundamental interest will be upheld, despite the difficulty of meeting the more stringent standard. For example, the individual’s right to travel guarantees freedom of movement, and makes it impossible for government to stop Americans from leaving their hometown and relocating, for example. In an emergency, however, a nighttime curfew order would almost certainly be upheld because the order not to leave one’s home after dark would be limited in time and place (narrowly tailored) and would be necessary to protecting the public’s safety (a compelling interest). On the other hand, some government actions might be so arbitrary, or undertaken for improper reasons, that they would fail to meet even a rational basis standard. A curfew issued at the whim of a mayor would surely be struck down, even on rational basis review, if it lacked a connection to a public interest.

Equal Protection of the Law So far we have focused on the kinds of speech that government must permit and on the kinds of actions that individuals have a right to engage in. The Equal Protection Clause prohibits government from using certain classifications as to groups of people, when it passes or enforces laws. The paradigmatic example throughout American history has been race; racial classifications are so suspect, so imbued with a history of oppression, that they are virtually always prohibited. In San Francisco in 1900, the Equal Protection Clause, race discrimination and a panicked public converged when plague broke out in the city. The local board of health imposed a quarantine around the Chinatown neighborhood, in effect imprisoning everyone within the boundaries of the quarantine whether they were infected or not. Members of the Chinese– American community challenged the quarantine in federal court, producing the following decision:

Chapter 9 l The Constitution and Individual Rights  151

Jew Ho v. Williamson U.S. Court of Appeals, 1900 [W]hile the board of supervisors has quarantined a district bounded by streets, the operation of the quarantine is such as to run along in the rear of certain houses, and that certain houses are excluded, while others are included; that, for instance, upon Stockton street, in the block numbered from 900 to 1000, there are two places belonging to persons of another race, and these persons and places are excluded from this quarantine, although the Chinese similarly situated are included, and although the quarantine, in terms, is imposed upon all the persons within the blocks bounded by such streets. The evidence here is clear that this is made to operate against the Chinese population only, and the reason given for it is that the Chinese may communicate the disease from one to the other. That explanation, in the judgment of the court, is not sufficient. [In] Yick Wo v. Hopkins, [which] arose in this state, out of the operation of an ordinance of this city respecting Chinese laundries, the Supreme Court [stated]: [T]he facts shown establish an administration [of the ordinance] directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration … with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws … Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. … In the case at bar, assuming that the board of supervisors had just grounds for quarantining the district which has been described, it seems that the board of health, in executing the ordinance, left out certain persons, members of races other than Chinese. This is precisely the point noticed by the supreme court [in Yick Wo, that the law was administered] ‘with an evil eye and an unequal hand.’ … Therefore the court must hold that this ordinance is invalid and cannot be maintained, that it is contrary to the provisions of the fourteenth amendment of the constitution of the United States, and that the board of health has no authority or right to enforce any ordinance in this city that shall discriminate against any class of persons in favor of another.

Equal protection law has grown enormously in importance in the more than 100 years since Jew Ho was decided. The guiding principle is that all persons similarly situated should be treated alike. Today, the courts have developed a tiered analysis for equal protection claims that is similar to the two standards we saw for substantive due process claims. The three tiers of equal protection law are dependent on the nature of the characteristic upon which a law is classifying individuals. 1. Some classifications are characterized as inherently suspect. Government actions that classify persons based on those characteristics will be struck down unless the classification is narrowly tailored to achieve a compelling state interest. Race, alienage, and national origin fall into this category.

152  THE LAW OF EMERGENCIES

2. Others are subject to heightened or intermediate scrutiny because the Court has found that they are usually, but always, irrational. Sex discrimination falls into this category. To be upheld, the sex-based classification must bear a substantial relationship to an important governmental interest. 3. Lastly, there are the almost endless number of classifications that lawmakers must draw in order to govern—for example, a law that sets out different rules for landlords and tenants. For these, courts will use a rational basis test. To summarize: “The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” (Romer v. Evans, 1995)

The Three Equal Protection Tests When the law differentiates among Americans based on certain characteristics that have been associated with a history of discrimination, the courts will usually apply one of the two higher tier tests. This is a way for the courts to insure that legislators or other officials do not rely on unfair criteria for administering public programs. [W]hen a statute classifies by race, alienage, or national origin, [t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. … Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment. [W]hat differentiates sex from such non-suspect statuses as intelligence or physical disability … is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest. Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that

Chapter 9 l The Constitution and Individual Rights  153

characteristic are also subject to somewhat heightened review. Those restrictions will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest. We have declined, however, to extend heightened review to differential treatment based on age… While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. [W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant … to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” (Cleburne v. Cleburne Living Center, 1985)

In many ways, the cases that the Supreme Court has grouped under the weakest—rational basis—test can be the most confusing, because the Court will sometimes use a more searching version of this analysis when a classification appears to be based on other kinds of prejudice not covered in the first two tests. In a gay rights case, for example, the Court used the least powerful test but applied it with enough stringency to strike down the law. [E]ven in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. The laws [that we have upheld against equal protection challenges] were narrow enough in scope and grounded in a sufficient factual context for us to ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn [simply] for the purpose of disadvantaging the group burdened by the law. (Romer v. Evans, 1995)

Justice O’Connor described the situations when the Supreme Court will use what amounts to heightened rational basis as the standard of review: Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. We have

154  THE LAW OF EMERGENCIES

consistently held, however, that some objectives, such as a bare … desire to harm a politically unpopular group, are not legitimate state interests. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. … Moral disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. (Lawrence v. Texas, 2003)

Justice O’Connor’s reference to reluctance of courts to strike down economic regulations because of a presumption that harmful policies will eventually be altered by voters refers to the underlying philosophy behind judicial review. For almost a hundred years, the Supreme Court has adhered to the principle that courts should step in to invalidate legislation on Due Process or Equal Protection grounds only when fundamental rights are at stake or when prejudice against a minority group has infected the democratic process. Arguments over the boundaries of that principle—which rights are fundamental and which groups have been disempowered by prejudice—drive many of today’s political debates.

Discrimination Against Non-Citizens: A Test of the Tests One of the questions arising under Equal Protection law that has given the courts the most difficulty has been assessing when non-citizens can be subjected to differential treatment. Read the two cases below and see if you can identify all the factors that the Supreme Court has taken into account in determining what standard of review should be used when the federal government or a state government discriminates against non-citizens.

Mathews v. Diaz United States Supreme Court, 1976 Justice Stevens delivered the opinion of the Court. There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection. The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for

Chapter 9 l The Constitution and Individual Rights  155

one class not accorded to the other; and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country. In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government’s power to regulate the conduct of its own citizenry. The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is “invidious.” In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country. Congress may decide that as the alien’s tie grows stronger, so does the strength of his claim to an equal share of that munificence. The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens allowing benefits to some aliens but not to others is permissible. [The benefit in question was enrollment in the Medicare program upon turning 65, a health insurance system that covers all Americans 65 and older.] We turn to that question. For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to … the Federal Government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either [Congress] or the[President]. This very case illustrates the need for flexibility in policy choices rather than the rigidity often characteristic of constitutional adjudication. Appellees Diaz and Clara are but two of over 440,000 Cuban refugees who arrived in the United States between 1961 and 1972. And the Cuban parolees are but one of several categories of aliens who have been admitted in order to make a humane response to a natural catastrophe or an international political situation. Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. The[se] reasons … also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization. Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case the appellees have challenged two requirements first, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien’s entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it is unquestionably reasonable for Congress to make an alien’s eligibility depend on both the character and the

156  THE LAW OF EMERGENCIES

duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind. We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program. We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not. … Graham v. Richardson provides the strongest support for appellees’ position. That case holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. …[I]t is the business of the … Federal Government, rather than that of … the States…, to regulate the conditions of entry and residence of aliens. The equal protection analysis also involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government. Insofar as state welfare policy is concerned, there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are non-citizens as far as the State’s interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subcategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Furthermore, whereas the Constitution inhibits every State’s power to restrict travel across its own borders, Congress is explicitly empowered to exercise that type of control over travel across the borders of the United States. …

Bernal v. Fainter United States Supreme Court, 1984 Justice Marshall delivered the opinion of the Court. Petitioner, a native of Mexico, is a resident alien who has lived in the United States since 1961. He works as a paralegal for Texas Rural Legal Aid, Inc., helping migrant farm-workers on employment and civil rights matters. In order to administer oaths to these workers and to notarize their statements for use in civil litigation, petitioner applied in 1978 to become a notary public. Under Texas law, notaries public authenticate written instruments, administer oaths, and take out-of-court depositions. The Texas Secretary of State denied petitioner’s application because he failed to satisfy the statutory requirement that a notary public be a citizen of the United States…

Chapter 9 l The Constitution and Individual Rights  157

As a general matter, a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny. In order to withstand strict scrutiny, the law must advance a compelling state interest by the least restrictive means available. Applying this principle, we have invalidated an array of state statutes that denied aliens the right to pursue various occupations. [including state civil service jobs and licensure to practice law] We have, however, developed a narrow exception to the rule that discrimination based on alienage triggers strict scrutiny. This exception has been labeled the “political function” exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The contours of the “political function” exception are outlined by our prior decisions. …[W]e held that a State may require police to be citizens because, in performing a fundamental obligation of government, police “are clothed with authority to exercise an almost infinite variety of discretionary powers” often involving the most sensitive areas of daily life. …[W]e [also] held that a State may bar aliens who have not declared their intent to become citizens from teaching in the public schools because teachers, like police, possess a high degree of responsibility and discretion in the fulfillment of a basic governmental obligation. They have direct, day-to-day contact with students, exercise unsupervised discretion over them, act as role models, and influence their students about the government and the political process. [In a third case,] we held that a State may bar aliens from positions as probation officers because they, like police and teachers, routinely exercise discretionary power, involving a basic governmental function, that places them in a position of direct authority over other individuals. The rationale behind the political function exception is that within broad boundaries a State may establish its own form of government and limit the right to govern to those who are fullfledged members of the political community. Some public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination. … We have therefore lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and non-elective positions whose operations go to the heart of representative government. While not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny … we have concluded that strict scrutiny is out of place when the restriction primarily serves a political function… To determine whether a restriction based on alienage fits within the narrow political function exception, we devised … a two-part test. “First, the specificity of the classification will be examined: a classification that is substantially overinclusive or underinclusive tends to undercut the governmental claim that the classification serves legitimate political ends… Second, even if the classification is sufficiently tailored, it may be applied in the particular case only to persons holding state elective or important non-elective executive, legislative, and judicial positions, those officers who participate directly in the formulation, execution, or review of broad public policy and hence perform functions that go to the heart of representative government.” … We recognize the critical need for a notary’s duties to be carried out correctly and with integrity. But a notary’s duties, important as they are, hardly implicate responsibilities that

158  THE LAW OF EMERGENCIES

go to the heart of representative government. Rather, these duties are essentially clerical and ministerial. In contrast to state troopers, notaries do not routinely exercise the State’s monopoly of legitimate coercive force. Nor do notaries routinely exercise the wide discretion typically enjoyed by public school teachers when they present materials that educate youth respecting the information and values necessary for the maintenance of a democratic political system. To be sure, considerable damage could result from the negligent or dishonest performance of a notary’s duties. But the same could be said for the duties performed by cashiers, building inspectors, the janitors who clean up the offices of public officials, and numerous other categories of personnel upon whom we depend for careful, honest service. What distinguishes such personnel from those to whom the political function exception is properly applied is that the latter are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals. Neither of these characteristics pertains to the functions performed by Texas notaries. … To satisfy strict scrutiny, the State must show that [the notary public restriction] furthers a compelling state interest by the least restrictive means practically available. [Texas argues that the law] serves its legitimate concern that notaries be reasonably familiar with state law and institutions and that notaries may be called upon years later to testify to acts they have performed. However, both of these asserted justifications utterly fail to meet the stringent requirements of strict scrutiny. There is nothing in the record that indicates that resident aliens, as a class, are so incapable of familiarizing themselves with Texas law as to justify the State’s absolute and classwide exclusion. The possibility that some resident aliens are unsuitable for the position cannot justify a wholesale ban against all resident aliens. Furthermore, if the State’s concern with ensuring a notary’s familiarity with state law were truly “compelling,” one would expect the State to give some sort of test actually measuring a person’s familiarity with the law. The State, however, administers no such test. To become a notary public in Texas, one is merely required to fill out an application that lists one’s name and address and that answers four questions pertaining to one’s age, citizenship, residency, and criminal record—nothing that reflects the State’s asserted interest in insuring that notaries are familiar with Texas law. … Without a factual underpinning, the State’s asserted interest lacks the weight we have required of interests properly denominated as compelling. …

Critical Thinking Consider the following questions: Why was the federal law with a discriminatory provision upheld and the state law struck down? What standard of review did the Supreme Court apply to federal government policies? To state government policies? What part of the standard does the “political exception” relate to?

■

■

■

These two cases illustrate the complexity of constitutional analysis. Not only are equal protection principles involved, but the Court also addresses federalism concerns about the differing roles of federal and state governments.

Chapter 9 l The Constitution and Individual Rights  159

Procedural Due Process The concept of procedural due process is fairly self-evident: there must be a fair process for a person who faces governmental action that would deprive her of life, liberty, or property. The law has recognized certain core protections, such as advance notice of the impending government action, the right to a hearing, and an impartial decision-maker. Courts have also made clear that the more important the interest at stake, the more painstaking must be the procedures that government has to follow. One common scenario in which procedural due process issues would arise in an emergency is the possibility of detention; for example, through a quarantine order. Physical confinement amounts to a literal deprivation of physical liberty, and courts traditionally have held that this is the situation in which government must act most carefully. In the two cases that follow, both dealing with persons who have infectious tuberculosis, you will see how one court perceives the need to step in to beef up procedural due process protections, while the second court finds that the procedures established by the health code were sufficient.

Greene v. Edwards Supreme Court of West Virginia, 1980 William Arthur Greene, [who brought] this habeas corpus proceeding, is involuntarily confined in Pinecrest Hospital under an order of the Circuit Court of McDowell County entered pursuant to the West Virginia Tuberculosis Control Act. He alleges, among other points, that the Tuberculosis Control Act does not afford procedural due process because: (1) it fails to guarantee the alleged tubercular person the right to counsel; (2) it fails to insure that he may cross-examine, confront and present witnesses; and (3) it fails to require that he be committed only upon clear, cogent and convincing proof. We agree. A petition alleging that Mr. Greene was suffering from active communicable tuberculosis was filed with the Circuit Court of McDowell County on October 3, 1979. After receiving the petition, the court, in accordance with the terms of the Tuberculosis Control Act, fixed a hearing in the matter for October 10, 1979. The court also caused a copy of the petition and a notice of the hearing to be served upon Mr. Greene. The papers served did not notify Mr. Greene that he was entitled to be represented by counsel at the hearing. After commencement of the October 10, 1979 hearing, the court, upon learning that Mr. Greene was not represented, appointed an attorney for him. The court then, without taking a recess so that Mr. Greene and his attorney could consult privately, proceeded to take evidence and to order Mr. Greene’s commitment. [The court’s actions were in conformity with the statute.] It is evident from an examination of this statute that its purpose is to prevent a person suffering from active communicable tuberculosis from becoming a danger to others. A like rationale underlies our statute governing the involuntary commitment of a mentally ill person. In [an earlier case], we examined the procedural safeguards which must be extended to persons charged under our statute governing the involuntary hospitalization of the mentally ill. We noted that [a finding of insanity results in a complete deprivation of liberty, through the process of commitment].

160  THE LAW OF EMERGENCIES

We concluded that due process required that persons [for whom involuntary commitment is sought] must be afforded: (1) an adequate written notice detailing the grounds and underlying facts on which commitment is sought; (2) the right to counsel; (3) the right to be present, crossexamine, confront and present witnesses; (4) the standard of proof to warrant commitment to be by clear, cogent and convincing evidence; and (5) the right to a verbatim transcript of the proceeding for purposes of appeal. Because the Tuberculosis Control Act and the Act for the Involuntary Hospitalization of the Mentally Ill have like rationales, and because involuntary commitment for having communicable tuberculosis impinges upon the right to “liberty, full and complete liberty” no less than involuntary commitment for being mentally ill, we conclude that the procedural safeguards [required for commitment proceedings] must, and do, extend to persons charged under the Tuberculosis Control Act. Specifically, persons charged under the act must be afforded: (1) an adequate written notice detailing the grounds and underlying facts on which commitment is sought; (2) the right to counsel and, if indigent, the right to appointed counsel; (3) the right to be present, to cross-examine, to confront and to present witnesses; (4) the standard of proof to be by clear, cogent and convincing evidence; and (5) the right to a verbatim transcript of the proceedings for purposes of appeal. [A]ppointment of counsel immediately prior to a trial in a criminal case is impermissible since it denies the defendant effective assistance of counsel. It is obvious that timely appointment and reasonable opportunity for adequate preparation are prerequisites for fulfillment of appointed counsel’s constitutionally assigned role in representing persons charged with having communicable tuberculosis. In the case before us, counsel was not appointed for Mr. Greene until after the commencement of the commitment hearing. Under the circumstances, counsel could not have been properly prepared to defend Mr. Greene. For this reason, Mr. Greene’s writ [of habeas corpus] must be awarded and he must be accorded a new hearing. …

In re Antoinette R. Queens County, N.Y. Supreme Court, 1995 …[M]ulti-drug resistant strains of TB stay infectious and active over longer periods of time and therefore require long-term treatment with more toxic drugs. By comparison, the standard treatment for non-resistant TB consists of administering two drugs, isoniazid and rifampin, for approximately six months until the patient is cured. The cure rate for those completing this treatment is considered 100%. Multi-drug resistant tuberculosis, on the other hand, is resistant to these drugs and to as many as seven other antibiotics. To obtain a cure rate of 60% or less, toxic drugs must be maintained over a minimum period of eighteen to twenty-four months. The most critical characteristic of these multi-drug resistant strains is that they are capable of being transmitted directly to others during the infectious stage. … On November 30, 1993 the respondent, a thirty-three year old female, was admitted to the Queens Hospital Center with pneumonia under the name of Marie C. exhibiting shortness of breath. A chest x-ray determined that she was suffering from inflammation in the upper right lobe, a classic indicator of tuberculosis. A sputum smear confirmed that she had an active, infectious case of TB. When the patient was interviewed, it was discovered that she had

Chapter 9 l The Constitution and Individual Rights  161

children who lived with her mother. She herself lived with them on occasion but also resided with various friends. She was informed of the consequences of tuberculosis and necessity of completing the appropriate medication to control the disease. Finally, she was recommended by the Department of Health to be a participant in Directly Observed Therapy, a program which involves the Department sending personnel to a patient’s residence to observe and verify the patient’s compliance with medication treatment. On December 4, however, the respondent left the hospital against medical advice prior to being rendered non-infectious. From December through February of 1994, she could not be contacted through her last known address. Moreover, despite several contacts with the respondent’s mother, the mother did not know of her daughter’s whereabouts, and was thus unable to provide any help in securing the proper medication for her daughter. In May, after numerous failed attempts at trying to contact the patient, the Department closed her case labeling the file, “Unable to Locate.” On May 31, 1994, the respondent checked into the Emergency Room at the Queens Hospital Center with breathing difficulties but checked out against medical advice. On June 6, 1994, she was readmitted with fever and chills under the name of Antoinette R. A sputum smear indicated a heavily positive tuberculosis infection. A chest x-ray of the right upper lobe of her lung showed cavitation present, which suggested a worsening of her condition. As a patient, the respondent was informed about tuberculosis pathology and control, she responded to the instructions in an uncooperative manner. In spite of efforts to conceal her identity, it was eventually discovered that the patient, Antoinette R., was the same person who had been unsuccessfully treated under the name of Marie C. She was then issued an order by the Commissioner of Health requiring her detention on June 11, 1994. On July 13, 1994, she was served with a Commissioner’s Order to participate in Directly Observed Therapy which commenced upon release from the hospital on July 18. Thereafter, between July 19 and July 31, she kept five of her eight scheduled appointments but kept no appointments after that date. On the occasions of Directly Observed Therapy, the respondent threw out medicine in the presence of the Public Health Advisor assigned to her case. She was subsequently non-compliant and lost to medical follow up despite numerous attempts to locate her at shelters and her last known address. Five months after her release from the hospital, her case file was again closed as “Unable to Locate.” On January 31, 1995, the respondent was readmitted to the hospital under the name of Chasity C. Her physical examination indicated a worsening of condition with extensive cavitary infiltrates in the right upper lobe with what appeared to be bronchogenic spread into the right middle and lower lobe on the right and left lungs. These findings were consistent with a reactivation of tuberculosis with bronchogenic spread. A sputum smear was collected which confirmed the diagnosis of infectious tuberculosis. A Public Health Advisor again explained the importance of taking and completing medication and discussed the possibility of participating in Directly Observed Therapy. The respondent agreed to participate and gave her mother’s residence as a place of contact but refused to provide a phone contact. On March 8, however, once again it was discovered that the patient was the same person who under different identities refused to participate in outpatient treatment. The order of detention, currently before the court, was subsequently issued on March 9 by the Commissioner of Health. The respondent is presently diagnosed as having active tuberculosis which has been rendered non-infectious. Since it is not of the drug resistant type, the estimated date of completion of treatment is in October, 1995, seven months from now.

162  THE LAW OF EMERGENCIES

The mother of the respondent lives in a private home with four of her grandchildren and a newborn great-grandson, the grandchild of the respondent. The mother is willing to take the respondent into her home and provide cooperation should she be released from the hospital. Over the past two months the mother has visited her daughter on several occasion and talked with her over the phone on a daily basis. The mother has noticed a change in attitude in the respondent, that is, she is not as hostile. The mother attributes this change to the respondent’s acceptance of religion. The respondent also contends that her attitude has been transformed and credits religion as her motivation. Since being detained at the hospital, she has joined various outpatient programs and attended parenting meetings. A nurse’s aide and the head nurse, who attend to the medical needs of the respondent, both verify that there has been an improvement in the respondent’s demeanor. She is now cooperative while taking her medicines and on occasions has independently approached the nursing staff to request her medicines. Relying on her “change in attitude,” the respondent opposes the order of detention and again requests the option of participating in Directly Observed Therapy to be conducted at her mother’s place of residence. The petitioner’s request for enforcement of the order of the Commissioner is granted. The petitioner has demonstrated through clear and convincing evidence the respondent’s inability to comply with a prescribed course of medication in a less restrictive environment. The respondent has repeatedly sought medical treatment for the infectious stages of the disease and has consistently withdrawn from medical treatment once symptoms abate. She has also exhibited a pattern of behavior which is consistent with one who does not understand the full import of her condition nor the risks she poses to others, both the public and her family. On the contrary, she has repeatedly tried to hide the history of her condition from medical personnel. Although the court is sympathetic to the fact that she has recently undergone an epiphany of sorts, there is nothing in the record which would indicate that once she leaves the controlled setting of the hospital she would have the self-discipline to continue her cooperation. Moreover, her past behavior and lack of compliance with outpatient treatment when her listed residence was her mother’s house, makes it all the more difficult to have confidence that her mother’s good intentions will prevail over the respondent’s inclinations to avoid treatments. In any event, the court will reevaluate the progress of the respondent’s ability to cooperate in a less restrictive setting during its next review of the order in ninety days. …

Critical Thinking West Virginia had provided some kinds of procedural protections. Why did the West Virginia court find them to be insufficient? What were the procedural protections followed by the New York City Department of Health in dealing with resistant TB patients? How do these protections compare to what the West Virginia court ordered its state health department to do? How might a government agency (and not just the individual) benefit from making the effort to insure that someone like Antoinette R gets a full and fair process before she is confined?

Chapter 9 l The Constitution and Individual Rights  163

The Writ of Habeas Corpus Article I, Section 8 of the Constitution declares: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it.” Habeas corpus is the mechanism, inherited from fourteenth century British law, which allows anyone confined by actions of government to challenge that confinement. It is not itself a ground for invalidating incarceration, but rather a procedural mechanism that guarantees that anyone who is confined and seeking to be released can secure a court hearing to review the government’s action. The phrase “habeas corpus” is Latin for “you [should] have the body.” “As Blackstone phrased it, habeas corpus is the great and efficacious writ, in all manner of illegal confinement. As this Court [has] said, the office of the writ is to provide a prompt and efficacious remedy for … intolerable restraints. … “There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law.” (Harris v. Nelson, 1969)

For example, the Greene case in the beginning of this chapter and the Hamdi and Hamdan cases described in Chapter 2 were brought as habeas corpus actions by persons who had been incarcerated. More recently, the scope of habeas corpus has come under question as part of the war on terror. In 2006, Congress passed the Military Commissions Act, which suspended habeas corpus for any alien determined to be an “unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States.” The primary effect of this law was to allow the government to detain persons indefinitely at Guantanamo, and prevent them from challenging their incarceration as unlawful. In Boumediene v. Bush (2008), the Supreme Court declared that the suspension of habeas corpus in the Military Commissions Act was unconstitutional. The Court’s lengthy opinion concluded with these words: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

Summary The Framers were acutely attuned to the risk of government intrusion into the lives of citizens, a commitment expanded and reinforced by the Reconstruction Amendments. Beneath each

164  THE LAW OF EMERGENCIES

of the core concepts—freedom of expression, liberty, equality, and fair process—there are elaborations, expansions, and caveats that judicial interpretation has added. Any federal, state, or local government employee, however modest in rank, can deploy the power of the state in interactions with others. The lesson of the Constitution is that all of those interactions are governed by the rule of law.

Important Terms “An evil eye and an unequal hand” Animus ■ Compelling state interest ■ Fundamental rights ■ Less restrictive alternative ■ Negative rights ■ Positive rights ■ Pretext ■ Rational basis standard ■ Similarly situated ■ State action ■ Strict scrutiny ■ Suspect classification ■ ■

Review Questions 1. Why did the framers limit the rights protected by the Constitution to defenses against actions by government? 2. Why is it important to have constitutional standards for the procedures used by government? 3. Are all liberty interests listed in the Constitution? 4. What are the criteria for fundamental rights? 5. Why aren’t all classifications of groups of people unconstitutional?

10 Statutory Protections for Individual Rights For Americans, the words “Constitution” and “rights” go together like the proverbial horse and carriage. But the Constitution is not the only source in law for the protection of individual rights. As you will recall, the Constitution limits the powers of government, but does not apply against private sector entities. Congress, however, has the power under its commerce and general welfare clauses to prohibit, require, or regulate the conduct of private parties that are engaged in interstate commerce (as virtually every entity is). As a result, the richest source of individual rights protections is statutory law enacted by Congress. For example, the U.S. Code contains laws that prohibit discrimination in employment, housing, credit, public accommodations, and education; that mandate consumer protections such as the Truth in Lending Act; that require safe workplaces; that provide a right to clean drinking water; that ban child labor; and that address many other concerns which can be grouped under the heading of individual rights. Because this book focuses on emergency law, our focus will be on how the concept of civil rights has operated, first informally and then formally, in the arena of disasters and emergencies. It should come as no surprise that while a natural disaster such as Hurricane Katrina itself does not produce greater harm for the poor or minorities, the human actions that occur before, during and after natural disasters can, and still too frequently, do. Indeed, reflections on Hurricane Katrina and its aftermath of recrimination and regret have generated the richest source of writing about disparities in disaster prevention and relief. This chapter will focus on two laws that prohibit discrimination in this field: first, Title VI of the 1964 Civil Rights Act, which prohibits discrimination by entities that receive federal funds; and second, the combined effect of the Rehabilitation Act (RA) and the Americans with Disabilities Act (RA), which require accommodation of the needs of disabled persons. Both are program access requirements, i.e., laws that set the terms for the public to receive the benefits of government programs. In the context of emergency management and disaster relief, the Department of Homeland Security has oversight and enforcement responsibility for these provisions. From Chapter  3 you have an understanding of how Congress uses federal grants to promote national priorities and from Chapter  6 you have an understanding of how DHS operates, including in its role in the implementation of federal grants. Those chapters lay the groundwork for this one, in which we will examine how DHS enforces two requirements established by Congress for nondiscrimination in the operation of federal and state disaster-related programs.

The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00010-3 © 2018 Elsevier Inc. All rights reserved.

165

166  THE LAW OF EMERGENCIES

The Back Story The history of differential treatment of disaster survivors because of race or other characteristics parallels that of discrimination more generally. Public policy in emergencies, like that in other contexts, reflected the prejudices of the time. In 1906, San Francisco segregated ChineseAmericans from others in the wake of the great earthquake. (See Jew Ho v. Williamson in the previous chapter.) Relief programs after the Mississippi River flood of 1927 aided whites, but dragooned African-Americans into repair work by forcing them into what amounted to slave labor camps, with little food or housing. Similar policies characterized the response to a massive hurricane that hit Miami without warning in 1928. Slowly, as civil rights consciousness grew and antidiscrimination laws were strengthened, examples of openly race-based discrimination decreased. Even in the 1950s and 1960s, however, some hurricane evacuations occurred in segregated buses. Then, in 2005, came Hurricane Katrina. Millions of Americans watched in horror as both a natural and a social disaster devastated New Orleans. Hurricane Katrina affected more than half a million people living within approximately 90,000 square miles spanning Louisiana, Mississippi, and Alabama, and caused more than 1600 deaths. For days after the storm had ended, the loss of life, homes, and community continued. The television images were stark: levees that had not been maintained burst and tons of water flooded low-lying areas, where primarily low-income and Black residents lived. Individuals and families seeking evacuation who lacked a car or the means to travel were directed to the Convention Center, where 20,000 people were crammed into a space with no beds and inadequate supplies, that was not evacuated for several days. Some authorities refused to allow buses that reached high ground in suburban areas to unload city dwellers. For the most part, the Katrina nightmare did not occur because government officials—federal, state, or local—engaged in intentional discrimination. Yet, as the result of many factors— deliberate policies with foreseeable results, panicked reactions that tapped into stereotypes, and inadequate resources—the elderly, poor, and disabled were the most likely to die. Nature produced the hurricane, but human failings or disregard produced most of the loss of life. Katrina and the public outrage that it produced shook the emergency and disaster relief community. Congressional investigators criticized many aspects of the response, and new legislation was enacted to prevent at least some problems from recurring. (See discussion of PostKatrina Emergency Management Reform Act in Chapter 3). Among the lessons learned from Katrina were those that reminded Americans of the government’s requirement to treat citizens equally, not least in the context of emergencies.

The Adoption of Title VI The Civil Rights Act of 1964 consists of various numbered titles (roughly equivalent to chapters) that address different specific topics. Probably the best known is Title VII, which prohibits workplace discrimination based on race, sex, religion, and national origin by all employers with 15 or more employees. Persons who work at government agencies, businesses, and

Chapter 10 l Statutory Protections for Individual Rights   167

private nongovernmental organizations are covered by this provision, including employees in emergency-related enterprises. Our focus, however, will be on a different provision of the same law—Title VI—which covers the programs and services provided by those entities. Title VI, in § 601, states as follows: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Note that not all grounds for discrimination are prohibited. Sex-based discrimination is absent from Title VI; it is prohibited in Title IX of the act, which covers only educational facilities. Discrimination against disabled persons in federally funded activities was prohibited by Congress 10 years after the 1964 Act, first in a law called the Rehabilitation Act, which was expanded in 1990 to cover entities that do not receive federal funding. (See discussion below of the Rehabilitation Act and the Americans with Disabilities Act.) The rationale for Title VI is straightforward. As Senator Hubert Humphrey stated during floor debate, “Simple justice requires that public funds, to which taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” Only those entities that accept federal funds are bound by the requirements of Title VI. Title VI prohibits both intentional discrimination (called disparate treatment) and policies that have the effect of discriminating (called disparate impact). DHS has illustrated disparate treatment with the following examples of actions that federal grant recipients are prohibited from taking, either directly or indirectly through contractual arrangements: Deny program services, financial aids, or other benefits Provide different program services, financial aids or other benefits, or provide them in a manner different from that provided to others ● Segregate or separately treat persons in any matter related to the receipt of any program service, financial aid, or benefit ● Restrict in any way the enjoyment of any advantage or privilege enjoyed by others receiving any program, service, financial aid, or other benefits ● Treat persons differently from others in determining eligibility to receive services, financial aids, or other benefits ● Deny persons the opportunity to participate in the program through the provision of services, or affording the opportunity to do so differently from those afforded others under the program ● Deny persons the opportunity to participate as a member of a planning, advisory, or similar body. ● ●

The prohibition on disparate impact discrimination prohibits actions that have the effect of discriminating, even if the intent was not to discriminate. This means that a facially neutral

168  THE LAW OF EMERGENCIES

policy may nonetheless violate the law if it disproportionately burdens a group of persons defined by race, color, or national origin. The key regulation establishing this principle applies to all federal agencies—roughly 30—that oversee the distribution of grants: [Recipients shall not] directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin. DHS provides the following illustration for the concept of disparate impact:

Example: A university that received a grant from DHS to conduct research on homeland security technologies advertised opportunities for student researchers in the university’s science and technology club. Club membership comprised mostly white students, and as a result, many interested and qualified minority students did not learn of the student research opportunities. While the university did not intend to exclude minority students from the research team, the methods by which it conducted recruitment had a disparate impact on minority students, who were otherwise interested in and qualified for the research opportunity. Unless the university can provide a substantial legitimate justification for why it restricted recruitment to the university’s science and technology club, the practice could be in violation of the Department’s Title VI implementing regulations.

The Scope of Title VI The obligations under Title VI attach to federal funding. “Federal financial assistance” is defined broadly to include both monetary and in-kind grants: Grants, cooperative agreements, and loans of federal funds Donation or grant of federal property ● Sale and lease of, or permission to use, federal property at below market value ● Training ● Donation or use of equipment ● Details or loans of federal personnel. ● ●

All recipients—including grantees and subgrantees—are bound by the requirements of Title VI. They may be public or private sector entities. DHS funding recipients include: State or local homeland security agencies State or local emergency management agencies ● State and local fire departments ● ●

Chapter 10 l Statutory Protections for Individual Rights   169

● ● ● ● ● ● ●

State and local police departments State and local departments that operate jails and prisons Port and mass transit authorities Intercity bus programs State motor vehicle departments Nonprofit organizations Universities and colleges. Another example from DHS:

Example: DHS awards a grant to a state homeland security agency. The state agency then distributes the funds to local agencies to plan and conduct public education campaigns on emergency preparedness. The state agency is the primary recipient of federal financial assistance from the Department and the local agencies are subrecipients of federal financial assistance. Both the state and local agencies are subject to Title VI, and thus must ensure nondiscrimination in their programs and activities.

The requirements of Title VI apply to “any program or activity” funded with federal monies. The definition of “program or activity” includes all the operations of any entity, any part of which is extended financial assistance. Therefore, Title VI and its prohibition against discrimination are not limited to the aspect of the recipient’s operations that specifically received the federal financial assistance, but rather apply to all operations of the recipient. Imagine in the prior boxed example that the DHS grant went only to the public education department of the state homeland security agency. The entire agency would be bound by Title VI because it—not one office within it—is considered to be the recipient. However, the entire state government would not be bound. There is a difference between “recipients” and “beneficiaries” of grants. Beneficiaries include individuals and/or entities that directly or indirectly receive an advantage through the operation of a federally assisted program. Beneficiaries, however, do not enter into any formal contract or agreement where compliance with Title VI is a condition of receiving the assistance. Thus beneficiaries are not bound by the requirements of Title VI. In the boxed example above, the individuals who attend or participate in public education campaigns offered by emergency preparedness offices would be considered to be beneficiaries of federal grants, not recipients.

The Rehabilitation Act and the Americans with Disabilities Act The law against discrimination based on disability developed on a parallel track with the provisions of the 1964 Civil Rights Act, such as Title VI. In 1974, Congress enacted the Rehabilitation

170  THE LAW OF EMERGENCIES

Act (RA), which prohibited discrimination based on disability by entities that receive federal funds. (Because the operative provision of the RA is found in Section 504, the law is often referred to as “Section 504.”) In 1990, Congress expanded the scope of antidiscrimination protection for people with disabilities to cover actions by all state and local government programs, regardless of whether they receive federal funds, as well as actions by private and public sector employers. Although there are minor differences in wording between the two statutes, the standards that they establish are the same. Under either law, persons with disabilities cannot be “excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.” The interpretation of this language has centered on the meaning of “be denied the benefits of.” Regulations specify that public agencies are prohibited from providing disabled persons with “an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others.” The key concept for emergency and disaster management law is that persons with disabilities must have an equal opportunity, compared to other program beneficiaries, to Obtain the same result Gain the same benefit

● ●

from the program in question. This standard is both practical and stringent. It is practical in that the regulations allow for a program to be evaluated in its entirety; the law may not require, for example, that all facilities provided for beneficiaries be accessible, so long as a sufficient number are. Nor will courts require modifications that create an undue financial or administrative burden or fundamentally alter the nature of the services provided. However, within those bounds, the law has teeth. Most importantly, the law prohibits discrimination that results from indifference as well as from intent. Thus the goal is not just to end exclusions; it is to secure meaningful access. As one court stated, “[i]t is not enough to open the door for the handicapped; a ramp must be built so the door can be reached.” (Dopico v. Goldschmidt, 1982)

Administrative Enforcement by DHS The unit within DHS that is responsible for monitoring grantee compliance with Title VI, the RA, and the ADA is called the Office of Civil Rights and Civil Liberties (CRCL). The head of CRCL reports directly to the Secretary. DHS enforcement activities fall within three primary categories: 1. Prevention and Public Education 2. Securing Compliance by Funding Recipients 3. Referral to the Department of Justice for enforcement in the courts (Justice Department lawyers handle all litigation on behalf of the United States, even though DHS lawyers in CRCL handle matters prior to litigation or that can be resolved without filing a lawsuit.)

Chapter 10 l Statutory Protections for Individual Rights   171

In carrying out the first two of these undertakings, CRCL publishes regulations and guidance documents which spell out requirements more specifically. CRCL also publishes a number of best practices documents—such as language identification cards, e.g., “I speak Vietnamese” in both English and Vietnamese—that local emergency management teams can use. After Katrina, FEMA established 10 regional offices throughout the United States that are tasked with working closely with states, localities, and nonprofit groups to ensure that the needs of limited English proficient persons and disabled persons, among others, are taken into account in planning for emergency response, recovery, and mitigation. FEMA also has hired more than 20 sign language interpreters and deaf interpreters who can be dispatched where needed, as well as LEP specialists, to be based outside of Washington, DC.

The Law in Action: Discrimination on the Basis of National Origin and Language Title VI prohibits discrimination on the basis of national origin, and one of the most salient markers of national origin is language. Because federal funding recipients are prohibited from adopting policies or offering programs that have the effect of discriminating against beneficiaries based on national origin, discrimination based on the proxy characteristic of language is also barred. This principle dates back to a federal administrative guideline issued by the Nixon Administration in 1970 and continues today, with increasing importance in the disaster and emergency management field. The section that follows traces the civil rights issue of national origin discrimination based on language from its beginnings in the school setting to the daily operations in homeland security programs today. We begin with two bookend documents, one from more than 40 years ago and the second from the 21st century.

Lau v. Nichols U.S. Supreme Court, 1974 Justice Douglas delivered the opinion of the Court. [The trial court in this case] found that there are 2856 students of Chinese ancestry in the [San Francisco] school system who do not speak English. Of those who have that language deficiency, about 1000 are given supplemental courses in the English language. About 1800, however, do not receive that instruction. [This case arose from a lawsuit brought by non-English-speaking Chinese students.] No specific remedy is urged upon us. Teaching English to the students of Chinese ancestry who do not speak the language is one choice. Giving instructions to this group in Chinese is another. There may be others. Petitioners ask only that the Board of Education be directed to apply its expertise to the problem and rectify the situation. …

172  THE LAW OF EMERGENCIES

… [California education law] states that ‘English shall be the basic language of instruction in all schools.’ That section permits a school district to determine ‘when and under what circumstances instruction may be given bilingually.’ That section also states as ‘the policy of the state’ to insure ‘the mastery of English by all pupils in the schools.’ And bilingual instruction is authorized ‘to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.’… Under these state-imposed standards there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education. Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful… [Section 601, known as Title VI, of the Civil Rights Act of 1964] bans discrimination based ‘on the ground of race, color, or national origin,’ in ‘any program or activity receiving Federal financial assistance.’ The school district involved in this litigation receives large amounts of federal financial assistance. The Department of Health, Education, and Welfare (HEW) [precursor to today’s Department of Education], which has authority to promulgate regulations prohibiting discrimination in federally assisted school systems, in 1968 issued one guideline that ‘(s)chool systems are responsible for assuring that students of a particular race, color, or national origin are not denied the opportunity to obtain the education generally obtained by other students in the system.’ In 1970 HEW made the guidelines more specific, requiring school districts that were federally funded ‘to rectify the language deficiency in order to open’ the instruction to students who had ‘linguistic deficiencies.’ … HEW’s regulations specify that the recipients may not (ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program (iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program. [The regulations also state that] discrimination among students on account of race or national origin that is prohibited includes ‘discrimination … in the availability or use of any academic… or other facilities of the grantee or other recipient.’ Discrimination is barred which has that effect even though no purposeful design is present: a recipient ‘may not… utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination’ or have ‘the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.’ It seems obvious that the Chinese-speaking minority receive fewer benefits than the Englishspeaking majority from respondents’ school system which denies them a meaningful opportunity to participate in the educational program—all earmarks of the discrimination banned by the regulations. In 1970 HEW issued clarifying guidelines, which include the following: ‘Where inability to speak and understand the English language excludes national originminority group children from effective participation in the educational program offered by a

Chapter 10 l Statutory Protections for Individual Rights   173

school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.’ ‘Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of national origin-minority group children must be designed to meet such language skill needs as soon as possible and must not operate as an educational deadend or permanent track.’ … We accordingly … remand the case for the fashioning of appropriate relief. Justice Stewart, with whom Chief Justice Burger and Justice Blackmun join, concurring in the result. It is uncontested that more than 2800 schoolchildren of Chinese ancestry attend school in the San Francisco Unified School District system even though they do not speak, understand, read, or write the English language, and that as to some 1800 of these pupils the respondent school authorities have taken no significant steps to deal with this language deficiency. The petitioners do not contend, however, that the respondents have affirmatively or intentionally contributed to this inadequacy, but only that they have failed to act in the face of changing social and linguistic patterns. [Although the language of §601 by itself does not specifically prohibit disparate impact as well as disparate treatment discrimination, the Court upheld the following regulation issued to implement the statute because it is reasonably related to the purposes of the enabling legislation]: ‘Where inability to speak and understand the English language excludes national originminority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.’ …The Department has reasonably and consistently interpreted § 601 to require affirmative remedial efforts to give special attention to linguistically deprived children. For these reasons I concur in the result reached by the Court. Justice Blackmun, with whom Chief Justice Burger joins, concurring in the result. I join Justice Stewart’s opinion and thus I, too, concur in the result. Against the possibility that the Court’s judgment may be interpreted too broadly, I stress the fact that the children with whom we are concerned here number about 1800. This is a very substantial group that is being deprived of any meaningful schooling because the children cannot understand the language of the classroom. We may only guess as to why they have had no exposure to English in their preschool years. Earlier generations of American ethnic groups have overcome the language barrier by earnest parental endeavor or by the hard fact of being pushed out of the family or community nest and into the realities of broader experience. I merely wish to make plain that when, in another case, we are concerned with a very few youngsters, or with just a single child who speaks only German or Polish or Spanish or any language other than English, I would not regard today’s decision, or the separate concurrence, as conclusive upon the issue whether the statute and the guidelines require the funded school district to provide special instruction. For me, numbers are at the heart of this case and my concurrence is to be understood accordingly.

Critical Thinking Justice Blackmun’s concurring opinion raises an important practical question: what if there is only one individual or family who speaks a certain language in a particular community or emergency shelter? How might emergency teams cope with that situation?

174  THE LAW OF EMERGENCIES

Renewing a Commitment to Language Access U.S. Department of Justice, 2011 Whether in an emergency or in the course of everyday business, government agencies must always be ready and able to communicate effectively with all members of the public. Events such as the H1N1 influenza pandemic, Hurricanes Katrina and Rita, the Gulf oil spill, and the 2010 Decennial Census highlight the need for effective communication, including communication with persons who are limited English proficient (LEP). Recognizing the critical need for effective communication with LEP individuals, in August of 2000, President Clinton issued Executive Order 13166, directing each federal agency to develop and implement systems by which LEP persons could meaningfully access the agency’s services. The order also directed those agencies offering federal financial assistance to issue guidance to recipients of such assistance on their legal obligations to ensure meaningful access for LEP persons under the national origin nondiscrimination provisions of Title VI of the Civil Rights Act of 1964. However, a 2006 language access survey of the federal government revealed that not all federal agencies were aware of, and fully in compliance with, principles of language access. An April 2010 Government Accountability Office report on language access at federal agencies further confirmed these findings and offered concrete suggestions for improving the federal government’s efforts to comply with Executive Order 13166. Further, interagency language access conferences held over the last few years have revealed that, while the federal government as a whole has taken considerable strides toward providing language access in some areas, the implementation of comprehensive language access programs remains uneven throughout the government and among recipients of federal financial assistance, especially in the face of limited resources and personnel. In order to address these deficiencies and ensure that all federal agencies are providing the language access necessary to communicate effectively with LEP individuals, the Attorney General has issued a memorandum asking each federal agency to renew its commitment to implementing Executive Order 13166. The memo outlines specific steps agencies should take to improve language access, which will be monitored by the Civil Rights Division [of the Department of Justice].

Do You Know… …the most commonly spoken languages other than English in the United States? According to the Census Bureau, these are the top 10, each spoken by at least a million people: Spanish Chinese French Tagalog (Philippines) Vietnamese Korean German Arabic Russian. Twenty other languages are each spoken by 100,000 or more persons. (These numbers include persons who speak English as a second language.)

Chapter 10 l Statutory Protections for Individual Rights   175

Persons with Limited English Proficiency (LEP) One of the trickiest problems for program administrators is how to comply with Title VI as it requires equal access by persons with limited English proficiency. In some locales, residents may speak dozens of languages other than English. As Justice Blackmun noted in his opinion in Lau v. Nichols, above, “numbers are at the heart” of the issue. DHS has addressed this concern in part by compiling an online resource library of materials in 20 languages and a phone line with speakers of 50 languages. (See http://www.lep.gov.) In addition, the following guidance to state and local agencies adopts a balancing approach.

Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons 2011

… As with most government initiatives, providing meaningful access for LEP persons requires balancing several principles. While this guidance discusses that balance in some detail, it is important to note the basic principles. First, we must ensure that Federally assisted programs aimed at the American public do not leave some behind simply because they face challenges communicating in English. This is of particular importance because, in many cases, LEP individuals form a substantial portion of those individuals encountered in Federally assisted programs. Second, we must achieve this goal while finding constructive methods to reduce the costs of LEP requirements on small businesses, small local governments, or small nonprofits that receive Federal financial assistance. There are many productive steps that the Federal Government, either collectively or as individual grant agencies, can take to help recipients reduce the costs of language services without sacrificing meaningful access for LEP persons. Without these steps, certain smaller grantees may well choose not to participate in Federally assisted programs, threatening the critical functions that the programs strive to provide. DHS is committed to working with its recipients to provide information on language assistance measures, resources, and activities that can effectively be shared or otherwise made available to recipients.… Recipients are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, the starting point is an individualized assessment that balances the following four factors: 1. The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee 2. The frequency with which LEP individuals come in contact with the program 3. The nature and importance of the program, activity, or service provided by the program to people’s lives 4. The resources available to the grantee/recipient and costs. As indicated above, the intent of this guidance is to suggest a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, small local governments, or small nonprofits. After applying the above four-factor analysis, a recipient may conclude that different language assistance measures are sufficient for the different types of programs or activities in

176  THE LAW OF EMERGENCIES

which it engages. For instance, some of a recipient’s activities will be more important than others and/or have greater impact on or contact with LEP persons, and thus may require more in the way of language assistance. The flexibility that recipients have in addressing the needs of the LEP populations they serve does not diminish, and should not be used to minimize, the obligation that those needs be addressed. DHS recipients should apply the four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps they should take to ensure meaningful access for LEP persons. 1. The Number or Proportion of LEP Persons Served or Encountered in the Eligible Service Population One factor in determining what language services recipients should provide is the number or proportion of LEP persons from a particular language group served or encountered in the eligible service population. The greater the number or proportion of these LEP persons, the more likely language services are needed. Ordinarily, persons “eligible to be served, or likely to be directly affected, by” a recipient’s program or activity are those who are served or encountered in the eligible service population. This population will be program specific and includes persons who are in the geographic area that has been approved by a Federal grant agency as the recipient’s service area. However, where, for instance, a fire station serves a large LEP population, the appropriate service area is most likely the area served by that station, and not the entire population served by the agency.… 2. The Frequency with Which LEP Individuals Come in Contact with the Program … The more frequent the contact with a particular language group, the more likely that enhanced language services in that language are needed. The steps that are reasonable for a recipient that serves an LEP person on a one-time basis will be very different than those expected from a recipient that serves LEP persons daily.… But even recipients that serve LEP persons on an unpredictable or infrequent basis should use this balancing analysis to determine what to do if an LEP individual seeks services under the program in question. This plan need not be intricate. It may be as simple as being prepared to use a commercially available telephonic interpretation service to obtain immediate interpreter services. In applying this standard, recipients should take care to consider whether appropriate outreach to LEP persons could increase the frequency of contact with LEP language groups. 3. The Nature and Importance of the Program, Activity, or Service Provided by the Program The more important the activity, information, service, or program, or the greater the possible consequences of the contact to the LEP individuals, the more likely language services are needed. The obligations to communicate with individual disaster applicants or to provide fire safety information to residents of a predominantly LEP neighborhood differ, for example, from those to provide recreational programming on the part of a municipal parks department receiving disaster aid. A recipient needs to determine whether denial or delay of access to services or information could have serious or even life-threatening implications for the LEP individual. In particular, recipients that provide services and benefits or operate in the context of emergency preparedness; response and recovery; health and safety; and law enforcement should be prepared to provide language services whenever serving or encountering LEP persons. In addition, decisions by a Federal, State, or local entity to make an activity compulsory, such as the requirement to complete an application to receive certain State disaster assistance benefits, can serve as strong evidence of the program’s importance.

Chapter 10 l Statutory Protections for Individual Rights   177

4. The Resources Available to the Recipient and Costs A recipient’s level of resources and the costs that would be imposed on it may have an impact on the nature of the steps it should take. Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets. In addition, “reasonable steps” may cease to be reasonable where the costs imposed substantially exceed the benefits. Resource and cost issues, however, can often be reduced by technological advances; the sharing of language assistance materials and services among and between recipients, advocacy groups, and Federal grant agencies; and reasonable business practices. Where appropriate, training bilingual staff to act as interpreters and translators, information sharing through industry groups, telephonic and video conferencing interpretation services, pooling resources and standardizing documents to reduce translation needs, using qualified translators and interpreters to ensure that documents need not be “fixed” later and that inaccurate interpretations do not cause delay or other costs, centralizing interpreter and translator services to achieve economies of scale, or the formalized use of qualified community volunteers may, for example, help reduce costs. … Large entities and those entities serving a significant number or proportion of LEP persons should ensure that their resource limitations are well-substantiated before using this factor as a reason to limit language assistance.…

The Law in Action: Discrimination Based on Disability In the wake of Katrina, nongovernmental advocacy organizations representing the disabled mobilized to reform the full spectrum of emergency and disaster services, from preparedness to recovery. In a series of test cases, raising claims under the RA and the ADA, advocates focused on the response capabilities of large urban areas, containing significant numbers of elderly and disabled persons. The first case, filed against the City of Los Angeles, produced the following decision.

Communities Actively Living Independent and Free (CALIF) v. City of Los Angeles U.S. District Court for the Central District of California, 2015 2011 WL 4595993, 2011 U.S. Dist. LEXIS 1183 Judge Consuelo B. Marshall …

… [This] dispute concerns whether Defendants’ emergency preparedness programs adequately serve the needs of the more than 800,000 individuals with disabilities who live within the jurisdiction of the City. Plaintiffs contend that these individuals suffer discrimination as a result of their disabilities because Defendants’ emergency preparedness programs fail to address their unique needs. Due to their exclusion from such programs, Plaintiffs further maintain that they are disproportionately vulnerable in the event of an emergency.

178  THE LAW OF EMERGENCIES

On June 7, 2010, the Court approved a stipulation filed by Plaintiffs and the County, which requested a stay of action in consideration of an agreement between Plaintiffs and the County to develop an Access and Functional Needs Annex to address the needs of individuals with disabilities with respect to the County’s emergency preparedness and planning. Therefore, Plaintiffs’ Motion for Summary Judgment is brought solely against the City. Effective emergency preparedness plans must include the following essential components: (1) development of a comprehensive emergency plan; (2) assessment of the efficacy of the emergency plan; (3) advance identification of needs and resources; (4) provision of public notification and communication; (5) provision of policies or procedures concerning the concept of sheltering in place; (6) provision of shelter and care for individuals forced to evacuate their homes; (7) provision of assistance with evacuation and transportation; (8) provision of temporary housing; and (9) provision of assistance in recovery and remediation efforts after an emergency or disaster. The City’s emergency preparedness program—which consists of a 200-plus page Emergency Operations Plan, twenty-one (21) incident-specific annexes, an Emergency Operations Board, and an Emergency Management Committee—addresses “preparation, planning, response, and recovery for the city in a disaster” or other emergency. Such emergencies include earthquakes, wildfires, flooding, landslides, and terrorist attacks. According to the City’s Chief of the Operations Division of the Emergency Management Department (“EMD”), the City’s emergency plans “are designed to save lives, protect property and return the City to normal service levels” by “assist[ing] in the response and recovery efforts following a disaster.” Although the City’s emergency preparedness program requires coordination from numerous departments, California’s state emergency plan and Standardized Emergency Management System place the City at the first level of response for meeting the disaster needs of its residents in the event of an emergency. Despite the fact that individuals with disabilities have special needs and may require reasonable accommodations during an emergency, the City’s emergency preparedness program does not include provisions to notify people with auditory impairments or cognitive disabilities of an emergency, or evacuate, transport, or temporarily house individuals with disabilities during or immediately following an emergency or disaster. Although the City’s employees testified that such responsibilities are delegated to specific departments, such as the Los Angeles Fire Department (“LAFD”), the Los Angeles Police Department (“LAPD”), and the Department of Parks and Recreation, there is no evidence in the record of any City documents explaining how these departments shall assist individuals with disabilities during an emergency or disaster. The individual departments which have been delegated the responsibility of assisting such individuals similarly have no plans for addressing the needs of individuals with disabilities in the event of an emergency or disaster. Indeed, the departments have not assessed whether they have the “capacity to respond to the needs of people with disabilities during a disaster” or emergency. The City has likewise not done a study of whether it has “the resources or capacity to respond to the needs of people with disabilities in an emergency.” In 2008, the City’s Department on Disability (“DOD”) reported that the City’s emergency preparedness program “is seriously out of compliance” with the ADA and Section 504 (the RA) and the City’s residents with disabilities “will continue to be at-risk for suffering and death in disproportionate numbers unless the City family drastically enhances the existing disability-

Chapter 10 l Statutory Protections for Individual Rights   179

related emergency management and disaster planning process and readiness as required by the ADA and other statutes.” The DOD issued numerous recommendations, including, but not limited to, the following: (1) The City should conduct a survey of all shelters, warming centers, cooling centers, relocation sites, and evacuation assistance centers, for accessibility pursuant to the U.S. Department of Justice’s ADA Checklist for Emergency Shelters; (2) the City should establish a Memorandum of Understanding with the Los Angeles Chapter of the American Red Cross to outline and address the provision of reasonable accommodations and personal assistants during activations; (3) the City should forward certain information regarding an Alert and Notification System, if one is purchased, to the DOD, including how the system provides functional equivalency to the disability community; and (4) the City should take other actions to ensure that all emergency plans meet the needs of people with disabilities and that such needs are communicated and understood by all of the City’s relevant departments. Other than surveying shelter sites, there is no evidence that the City has adopted any of the DOD’s recommendations. With respect to shelter and care, specifically, the City, through the Department of Parks and Recreation, has a responsibility to provide shelter to residents displaced by an emergency. The City, however, has conducted full disability compliance surveys for only a fraction of its approximately 200 shelter sites. Of the surveyed sites, few—if any—of the shelters meet all requirements mandated by the ADA. The City maintains that the American Red Cross is responsible for mass shelter and care along with temporary housing; however, there is no agreement between the City and the American Red Cross setting forth any specific responsibilities of the American Red Cross with respect to individuals with disabilities. Indeed, the Director of Emergency and Disaster Response of the American Red Cross of Greater Los Angeles testified that it is not his understanding that the American Red Cross is solely responsible for shelter compliance with the ADA or accessibility of shelters for individuals with disabilities. The emergency preparedness program has no provision addressing the inspection or evaluation of the American Red Cross’ policies and procedures at shelters.… Plaintiffs contend that … the City admits that it has no plan to notify, evacuate, transport, or shelter these individuals in the event of an emergency or natural disaster. Plaintiffs argue that the City’s residents with disabilities are consequently at a higher risk than the general population to be harmed in an emergency or natural disaster. The named plaintiffs also maintain that they have experienced immediate fear, apprehension, and unease because they believe they have a right to be, but are not, included in the City’s emergency preparedness program. The City, meanwhile, contends that Plaintiffs are not entitled to judgment … because “there is no evidence presented by Plaintiffs as to what service the City actually provides (not ideally should provide) for its residents generally that it does not provide for [Plaintiffs].” According to the City, Plaintiffs cannot establish actual discrimination because “the City has not taken any action which disproportionately burdens people with disabilities.” (emphasis in original) Thus the City argues that they cannot be held liable for any alleged violations because they have not “exclude[d] people with disabilities by reason of those disabilities” from any public program or service. (emphasis in original) Finally, the City argues that Plaintiffs cannot prevail on a motion for summary judgment because they have presented no evidence that the class representatives requested, but were refused, a reasonable accommodation from the City.

180  THE LAW OF EMERGENCIES

… Title II of the ADA prohibits discrimination against individuals with disabilities in the provision of services, programs, or activities by public entities. Section 504, in turn, requires that “[n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Due to the similarities between the statutes, the Ninth Circuit has held that “there is no significant difference in the analysis of rights and obligations created by” the ADA and Section 504.… The City’s emergency preparedness program is designed to apply equally to all of its residents. Plaintiffs, however, have provided substantial evidence demonstrating that individuals with disabilities lack meaningful access to the City’s emergency preparedness program due to the City’s failure to address or provide for their unique needs. Although it is not necessary for the Court to enumerate every deficiency at this stage in the litigation, Plaintiffs have established, and the City has failed to dispute, that the City’s emergency preparedness program does not include provisions to notify people with auditory impairments or cognitive disabilities of an emergency, or evacuate, transport, or temporarily house individuals with disabilities during or immediately following an emergency or disaster despite the fact that such individuals have special needs and may require reasonable accommodations during an emergency or disaster. The City contends that the emergency preparedness program is intended to be general—not tactical—in nature, and actual responsibilities are to be delegated to other departments. Yet there is no evidence in the record that the individual departments which have been delegated the responsibility of assisting such individuals, including the LAFD, the LAPD, and the Department of Parks and Recreation, have any plans for addressing the needs of individuals with disabilities in the event of an emergency or disaster. Neither the City nor the individual departments have assessed whether they have the capacity to respond to the needs of individuals with disabilities during an emergency or disaster. The City also has failed to provide any evidence of the provision of reasonable accommodations to specific disabled individuals by any of its departments during an emergency or disaster. The DOD recognized that the City’s emergency preparedness program “is seriously out of compliance” with the ADA and Section 504 and the City’s residents with disabilities “will continue to be at-risk for suffering and death in disproportionate numbers unless the City drastically enhances the existing disability-related emergency management and disaster planning process and readiness as required by the ADA and other statutes.” The Court therefore concludes that individuals with disabilities are disproportionately burdened by the City’s failure to consider their unique needs in the administration of its emergency preparedness program. The City’s provision of shelters provides one of many examples in which individuals with disabilities lack meaningful access to the City’s emergency preparedness program. The City, through its Department of Parks and Recreation, has a plan for providing mass shelter and care for residents who are forced to evacuate their homes and it has identified approximately 200 shelter sites to be used in the event of an emergency or disaster. However, the City does not know which, if any, of these shelters are architecturally accessible to individuals with disabilities. Likewise, the City does not know which, if any, of these shelter sites could accommodate people with specific special needs, such as service animals. Individuals with disabilities currently have no way of knowing which shelters have been designated as accessible. In the event of an

Chapter 10 l Statutory Protections for Individual Rights   181

emergency or disaster, individuals with disabilities are therefore disproportionately burdened by the City’s failure to provide or identify accessible shelters when such shelters are available to other residents. While the Court commends the City for continuing to conduct full accessibility surveys of its shelters and for identifying the need for evacuation devices, such as portable lifts and evacuation chairs, such efforts—in isolation—are not sufficient. The City’s response that its lack of affirmative action with respect to individuals with disabilities somehow absolves the City of liability is not only unavailing but also contrary to clearly established precedent. Because individuals with disabilities require special needs, the City disproportionately burdens them through its facially neutral practice of administering its program in a manner that fails to address such needs. The City’s contentions that it can make ad hoc reasonable accommodations upon request or that Plaintiffs’ claims are somehow deficient because the named plaintiffs have not sought individual accommodations are both legally inadequate and practically unrealistic. The gravamen of Plaintiffs’ complaint is that the City fails to provide for the unique needs of individuals with disabilities in its emergency preparedness program. The purpose of the City’s emergency preparedness program is to anticipate the needs of its residents in the event of an emergency and to minimize the very type of last minute, individualized requests for assistance described by the City, particularly when the City’s infrastructure may be substantially compromised or strained by an imminent or ongoing emergency or disaster.… Plaintiffs have established that reasonable modification(s) to the City’s emergency preparedness program are available, including those identified in the DOD’s recommendations to the EMD and the U.S. Department of Justice’s ADA Checklist for Emergency Shelters. Although the City disputes whether some of the reasonable modifications enumerated by Plaintiffs are necessary or purely “aspirational,” it has presented no evidence demonstrating that any specific reasonable modification would fundamentally alter the nature of its emergency preparedness program or cause undue burden.…

The decision in CALIF was the first successful attempt at structural reform of emergency planning and disaster management services in the United States. Disability Rights Advocates, the group that brought the suit, next sought changes in the same set of services in New York, America’s largest city. More than 889,000 persons with disabilities live in New York, including 536,000 who have difficulty walking and climbing stairs; 211,000 with serious vision impairments; and 184,000 with serious hearing impairments. Two months before the case was scheduled to go to trial, Hurricane Sandy provided a dramatic case study of what could go wrong. Brooklyn Center for Independence of the Disabled v. Michael Bloomberg U.S. District Court for the Southern District of New York, 2013 Jesse M. Furman, District Judge. … [The evidence in this case] confirms that planning for, and responding to, emergencies and disasters is a Herculean task, and that, in many—perhaps most—respects, the City has done an outstanding job. But it also reveals that while the City’s emergency preparedness program

182  THE LAW OF EMERGENCIES

adequately accommodates the needs of people with disabilities in some respects, it fails to do so in others. Most significantly, the City’s plans are inadequate to ensure that people with disabilities are able to evacuate before or during an emergency; they fail to provide sufficiently accessible shelters; and they do not sufficiently inform people with disabilities of the availability and location of accessible emergency services. Notably, there is no evidence that these failures are a result of intentional discrimination by the City against people with disabilities. But the ADA, the Rehabilitation Act, and the [New York state law] seek to prevent not only intentional discrimination against people with disabilities, but also—indeed, primarily—discrimination that results from “benign neglect.”… People with disabilities face unique challenges in responding to emergencies. They may, for example, rely on the availability of elevators, accessible transportation, accessible communication, or electricity-powered medical devices, any or all of which may be compromised in an emergency. Thus, as the City itself concedes, it is particularly important to account for the needs of people with disabilities in emergency planning. The City’s emergency preparedness program consists of numerous plans, guides, strategies, playbooks, scripts, and protocols designed, among other things, to educate the public about emergency preparedness; to guide evacuation, transportation, and shelter during an emergency; to disseminate emergency information during a disaster; and to aid the City and its residents in recovering from an emergency. The City’s primary planning documents include the Area Evacuation Plan, the Coastal Storm: Evacuation Plan, and the Coastal Storm: Sheltering Plan. These general plans are supplemented by many other more specific plans, as well as by playbooks, manuals, and field guides, detailing how the plans should be implemented. The Office Emergency Management (OEM) is the City agency responsible for coordinating the City’s emergency planning and responses to emergency situations. Among other things, OEM is responsible for preparing the City’s emergency plans, conducting training and exercises, and overseeing the City’s extensive education and outreach program. OEM has more than 200 employees and is divided into at least six levels of management.… [The full opinion is quite lengthy and addresses issues related to shelters, evacuation, communication, planning, and recovery operations. This excerpt focuses on shelter-related issues. Additional excerpts concerning evacuation are included in Chapter 17]. A core aspect of the City’s emergency plans is providing shelter to those displaced in an emergency. Because people with disabilities often require accessible housing or other accommodations, they may be less able than those without disabilities to stay with friends, family, or neighbors during a disaster. Therefore, emergency shelters are particularly important for people with disabilities. The City’s plan for providing shelter during a disaster is the Coastal Storm Sheltering Plan (“Sheltering Plan”). Despite its name, this Sheltering Plan is not limited to coastal storms. It is an “all-hazards” plan, meaning that it could be activated during any large-scale emergency, including an emergency that arose without warning. As detailed in the Sheltering Plan, the City uses a “scalable solar system model” for sheltering. The City has over five hundred shelters, which are grouped into sixty-five “solar systems.” Each solar system consists of one evacuation center that serves as the “hub,” along with five to ten shelters. In most cases, one of these shelters is co-located with the evacuation center. The City also has eight special medical needs shelters (“SMNSs”), at least one of which is located in every borough. The SMNSs are intended to shelter individuals whose needs exceed the capability of the general shelters but who do not require hospitalization.

Chapter 10 l Statutory Protections for Individual Rights   183

During every emergency in which the City offers sheltering, all evacuation centers and SMNSs are open. Additional shelters are opened based on need. Evacuees seeking shelter are instructed to report first to an evacuation center. Once there, they undergo a basic intake process to evaluate their needs, after which they are either directed to a co-located shelter or transported to another shelter, an SMNS, or a hospital. The vast majority of evacuation centers and shelters are located within New York City Department of Education (“DOE”) facilities—that is, school buildings. Although the locations of evacuation centers are publicized in advance of an emergency in various ways, the City does not publicize the location of other shelters in the system. If fully activated, the City’s shelter system has the potential to shelter over 600,000 people. The solar system model has important benefits. First, because the system is scalable, it allows emergency managers to activate facilities only when needed and thus efficiently allocate City staff, equipment, and other specialized resources. Second, it “allows for a consistent message to the public,” as people can be “directed to a limited number of evacuation centers which are publicized” in advance and always open, “rather than to shelters which may or may not be open depending on the size of the storm.” As evacuation information is “not dependent on the size of the storm,” the City’s expert Elizabeth Davis explained, people “can more easily develop an evacuation plan in advance of” an emergency. The Court heard testimony about both the architectural accessibility of the City’s shelters— that is, the accessibility to people with disabilities, and particularly mobility disabilities, of the buildings the City uses as shelters—as well as the accessibility of the programs and services offered therein.… The Architectural Accessibility of Shelters The City’s Sheltering Plan is silent as to the architectural accessibility of the shelter system. It does not require that the City consider accessibility in choosing facilities to serve as shelters, let alone mandate that the shelter system, or any portion thereof, be architecturally accessible to people with disabilities. Nor does it provide any guidance to ensure that there are accessible pathways between the shelter entrance, the rooms used for sheltering, and the bathroom, or that the particular rooms set up for sheltering—that is, the rooms chosen as dormitories, used for food service, etc.—are themselves accessible. The other plans related to sheltering similarly lack such guidance. The City’s written plans do instruct shelter operators, when opening a shelter or evacuation center, to identify which areas of the shelter are accessible to people with disabilities, but they do not provide instructions for how to do so, nor do they require that any of the shelter areas actually be accessible. In addition, during an emergency, shelter operators are provided a checklist to evaluate the accessibility of their shelter. The checklist asks shelter staff, for example, to mark the accessible entrances and bathrooms as such. But again, it does not require that a shelter actually have accessible entrances or bathrooms, and it does not give instructions for determining whether an entrance or bathroom is accessible. It is unclear whether shelter operators even use the checklist. Significantly, the City does not even know which of its shelters and evacuation centers are accessible. Further, the evidence at trial demonstrated that many of the City’s shelters and evacuation centers are not fully accessible to people with disabilities—and that the City is aware of that fact. For example, Special Needs Coordinator Belisle testified that “[n]ot all of [the City’s] shelters are accessible” and that “some of [the City’s evacuation centers] may not be as accessible as

184  THE LAW OF EMERGENCIES

we want.” Similarly OEM Deputy Commissioner McKinney testified that “[n]ot all of the City’s emergency shelters are fully accessible.” When [one witness] compared a list of shelters open during Hurricane Irene with a list of schools identified by the DOE as inaccessible to people with disabilities, she found that the majority of schools used as shelters during Hurricane Irene had been characterized by the City itself as inaccessible. And several witnesses, including the Commissioner of the Mayor’s Office for People with Disabilities (MOPD), testified about shelters that lacked accessible entrances or bathrooms, or were otherwise not fully accessible to people with disabilities, during Hurricanes Irene and Sandy. Although the record makes clear that many evacuation centers and general shelters are not accessible to people with disabilities, the evidence suggests that SMNSs are wheelchair accessible. At a minimum, Plaintiffs did not prove through competent evidence that the SMNSs are inaccessible to people with disabilities. Because of its awareness that not all shelters and evacuation centers are accessible—that is, compliant with the ADA—the City has adopted a “usability” standard. As the City’s expert conceded, the concept of “usability” is not equivalent to the ADA’s standard of accessibility. Instead, it represents the City’s attempt to enable people with disabilities to at least enter a facility, despite the fact that it might be inaccessible within the meaning of the ADA. For example, during Hurricane Sandy, some evacuation centers had temporary ramps that, while not ADA-compliant, enabled a person using a wheelchair to enter the facility, at least when assisted by a police officer. During Hurricanes Irene and Sandy, some shelters lacked even a usable entrance. Some evacuation centers and shelters also lacked bathrooms that were even usable by people with disabilities. The City’s public information during Hurricane Sandy stated only that the shelters would have usable entrances; it made no commitment that the shelters would have usable—let alone accessible—restrooms, or that the dormitories, food distribution areas, and other shelter areas would themselves be usable. Furthermore, nothing in the City’s written emergency plans requires any of the City’s evacuation centers or shelters to be usable, or even defines the term. Nor do the plans provide any guidance for making evacuation centers and shelters usable. Therefore, there is no way to know whether or how the City will attempt to make inaccessible shelters usable for people with disabilities in the future. The City’s sheltering plans also provide little or no guidance for setting up shelters to ensure that people with disabilities can navigate within them. The plans do not, for example, require that accessibility be considered in designating the rooms to be used for registration, dormitories, and other shelter spaces. Nor do they require that the pathways to and from the accessible entrance (if there is one), the bathroom, and the main sheltering areas be navigable by people with mobility disabilities (although the checklist given to shelter operators does direct them to determine whether such pathways are “clearly marked, unobstructed, and without stairs”). Both the plan for setting up general shelters and the plan for SMNSs, however, do provide guidelines designed to allow people in wheelchairs to access the cots used in the dormitories.… The Programmatic Accessibility of Shelters In addition to ensuring that the shelter facilities are physically accessible, there are several other accommodations that may be required to ensure that people with disabilities

Chapter 10 l Statutory Protections for Individual Rights   185

are able to access sheltering. First, people with cognitive or sensory disabilities may require accommodations in order to effectively communicate with shelter staff, receive information, and navigate a shelter. (For example, those who are blind or have low vision might require information to be written in Braille or read aloud; those who are deaf may require a sign language interpreter or written communications; people with cognitive disabilities may require that information be presented slowly or in simple language. Therefore, emergency planning experts emphasize the importance of both training shelter staff to communicate with people with disabilities and ensuring that emergency plans direct and make possible the provision of information via multiple modes of communication. The City provides shelter staff with some training and guidance on communicating with people with disabilities. For example, as part of their training, shelter operators are taught that in order to accommodate people with disabilities, information should be provided in multiple formats. In addition, the City has developed a guide for shelter staff primarily focused on effective communication with people with disabilities. And at the time of trial, OEM was developing a new video training course focused on interacting with people with disabilities, scheduled to be available to all City employees involved in the emergency sheltering system by the 2013 hurricane season. The sheltering plans, however, do not mention accessible communication, let alone provide for accommodations, such as sign language interpreters or common signage in Braille, to ensure that people with disabilities are able to communicate and understand the information provided at shelters. Although the MOPD website stated that those who required sign language interpretation while in an evacuation center or shelter during Hurricane Sandy would be provided an interpreter, [a City employee] testified that the City does not, in fact, provide interpreters at shelters.… Regardless, the City does not provide—or plan for—any other accommodations. Instead, the City relies on people with disabilities to find ways of communicating their needs without assistance. For example, the City’s Ready New York guide to developing a personal emergency plan advises individuals with hearing disabilities to “practice communicating [their] needs through gestures, note cards, text messages, or other means.”… … [W]hatever means the City chooses, it must ensure that people with disabilities have meaningful access to the shelter system. The City’s plans fail to do so. First, there is no requirement in the City’s emergency plans that the facilities selected as shelters—or at least, a percentage of them sufficient to accommodate the anticipated shelter population of people with disabilities—be accessible. Although the City argues that it directs people to evacuation centers, not shelters, there is not even a requirement that the facilities used as evacuation centers be accessible. The City’s own witnesses admitted that many shelters and evacuation centers are not accessible to people with disabilities. In fact, the City does not even know which of its shelters and evacuation centers, let alone how many, are accessible. It follows that the City cannot determine whether there are enough accessible shelters to house all those who may require accessible shelter in an emergency; nor can it necessarily direct or transport people to an accessible shelter in an emergency. People with disabilities are plainly excluded from the shelter system if they cannot access the buildings in which it is housed. Defendants’ arguments that the shelter system complies with the ADA are without merit. First, they contend that every evacuation center has at least one entrance that is “usable” by

186  THE LAW OF EMERGENCIES

people with disabilities. But the ADA requires that the City’s sheltering program be not just usable, but “readily accessible to and usable by” people with disabilities. Additionally, as of the time of trial, the City had not assessed the accessibility—or usability—of its shelter system. Thus it is not even clear that the City’s contention about “usable” entrances is correct. During Hurricane Sandy, at least one evacuation center entrance was rendered “usable” only by means of a ramp that was not, in fact, usable by a person in a wheelchair, at least not without the help of a police officer. Even assuming the City’s contention is accurate, some of its evacuation centers only had usable entrances during Hurricane Sandy because of the City’s ad hoc modifications as the storm approached. There is nothing in the City’s plans that requires evacuation centers to be located in buildings with usable entrances (let alone anything that provides guidance as to how to modify non-accessible entrances such that they are usable) or confirms that the City has available the resources to do so. Therefore, while the Court does not doubt that the intent of the City during Hurricane Sandy was to make its evacuation centers usable for people with disabilities—and not simply to evade liability in this lawsuit—there is insufficient evidence to demonstrate that in future emergencies all evacuation centers will have usable entrances. More importantly, the ability of people with disabilities to enter a facility is necessary, but not sufficient, for compliance with the ADA. Those displaced by a disaster may need to stay at a shelter for days or longer. During Hurricane Sandy, the shelters remained open for over three weeks. If a person with disabilities cannot use the bathrooms at a shelter, that shelter is not accessible—or even usable—by that person. Where, as here, a facility’s “wheelchair ramps are so steep that they impede a disabled person or … its bathrooms are unfit for the use of a disabled person, then it cannot be said that the [facility] is ‘readily accessible,’ regardless [of ] whether the disabled person manages in some fashion to” enter it. Next, Defendants assert that, during Hurricane Sandy, the City assigned aides to assist people with disabilities. The only evidence in the record that anyone in the shelter system was provided with an aide, however, is a single sentence in the declaration of [a witness for the City], who managed a SMNS for a week during Hurricane Sandy. [The witness] testified that “a week or so” after the hurricane, “FEMA received a contract with ResCare and we brought in approximately 25–30 personal care attendants.” There is no indication that these attendants were present at any other shelter or evacuation center or that they assisted people with disabilities in navigating otherwise inaccessible facilities. Furthermore, even if the attendants aided people with disabilities in receiving sheltering services, they arrived a week after the shelter system opened. People with disabilities do not have meaningful access to the shelter system if they must wait a week after a disaster to use it. Finally, the attendants about which [the witness] testified were provided by FEMA; they were not made available pursuant to any City plan. Therefore, there is no reason to believe they will be available in future emergencies.… Finally, Defendants argue that the City’s shelter system as a whole is sufficiently accessible to people with disabilities because, if a particular shelter does not meet a person’s needs, the City will provide accessible transportation to relocate that individual to one that does. But there is nothing in the City’s sheltering plan about accessible transportation between shelters. And, in any event, it is unclear how the City would transport someone to an accessible shelter given that it does not even know which of its shelters are accessible. Furthermore, the provision of accessible transportation between shelters does not ensure that there are sufficient accessible

Chapter 10 l Statutory Protections for Individual Rights   187

shelters available. Nor does it account for the possibility that transportation may be difficult or impossible during and after an emergency. The City provides people without disabilities the opportunity to identify in advance, and to use in an emergency, an evacuation center in their neighborhood. People with disabilities are not given this same opportunity. To be sure, the ADA does not require that every shelter be accessible. But the City cannot even identify which, or how many, of its shelters and evacuation centers are accessible. There is no way, therefore, for the City to ensure that there are sufficient shelters and evacuation centers to meet the needs of people with disabilities or for it to direct people to accessible shelters and evacuation centers. The City’s sheltering plans prepare it to open sixty-five evacuation centers, any one of which a person without disabilities can use in an emergency, as well as additional shelters sufficient to accommodate over 600,000 people, the maximum number of people the City anticipates will need shelter. At a minimum, to provide people with disabilities meaningful access to the City’s shelter system, the City’s evacuation centers must be accessible to people with disabilities; a sufficient number of shelters to accommodate people with disabilities must also be accessible; and the City must be able to identify which shelters are, in fact, accessible. Therefore, in order for people with disabilities to have meaningful access to the City’s emergency plans, the plans must provide for this level of accessibility.… The purpose of the City’s shelter system is not only to provide safe buildings in the event of an emergency but also to “offer essential services to preserve the health and safety of evacuees.” Moreover, even if the purpose of the shelter system were merely to provide safe structures during a disaster, the City would be required to provide reasonable accommodations—such as, for example, the provision of signage in forms intelligible to people with hearing, cognitive, visual, or other disabilities—to ensure that people with disabilities had meaningful access to such structures. Therefore, the City must do more than ensure that the buildings in which it locates its shelters are physically accessible; it must ensure that the services offered therein are also accessible. It fails to do so in several respects. First, the City fails to accommodate the communication needs of people with disabilities. Department of Justice regulations provide that “[a] public entity shall take appropriate steps to ensure that communications with [people] with disabilities are as effective as communications with others.” Such steps may require the provision of “appropriate auxiliary aids and services.” And while “[t]he type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place,” the regulations provide that, “[i]n order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” The City’s sheltering plans do not ensure effective communication with people with disabilities. The City’s efforts on this score are minimal. The City does not, for example, provide sign language interpretation at shelters or ensure that common signage is available in Braille. And while the City provides some guidance to shelter staff about communication with people with special needs, the only accommodation it makes in this regard is to provide a communications board with pictures and symbols at shelter registration tables. As noted, this board is not in evidence, and therefore the Court cannot determine the extent to which it might

188  THE LAW OF EMERGENCIES

aid people with disabilities that impair their ability to communicate. In any event, such a board cannot aid those with visual disabilities; nor can it enable those with hearing disabilities to understand oral announcements. Nor is it clear that the communications board is available at any point other than registration. Without the means to communicate at shelters, people with disabilities may be less able than others to access the services therein. The City’s emergency plans fail to account for this possibility. As the purpose of these plans is to help ensure that all City residents have access to the services provided by shelters, they fail to provide meaningful access to those with disabilities.…

Postscript—When plaintiffs are successful in suing a defendant for violations of the ADA, they are entitled to seek money damages. The BCID and other plaintiffs chose not to, however, and asked only for injunctive relief. An injunction is a court order that directs a defendant to take certain action. At the conclusion of the trial, after the judge had found the City liable, the parties negotiated an extensive remedial order. Under it, the City agreed to the following with regard to shelters: To ensure that a minimum of 60 shelters, located in all five boroughs and capable of housing 120,000 people, be made accessible by September 30, 2017 ● To provide transportation from each evacuation center to an accessible shelter ● To train shelter staff in providing needed services for people with disabilities ● To provide either remote translation services or ASL interpretation for every accessible facility. ●

Critical Thinking The advocates who brought the CALIF and BCID lawsuits had goals that reached beyond Los Angeles and New York, or even big cities. How did these cases help establish criteria for accessibility that can be applied elsewhere? How would “meaningful access” be achieved in smaller cities and counties? “Nothing about us without us” has become a slogan of organizations for people with disabilities. Can you see how this principle would affect emergency preparedness planning? What structures might planning agencies use to achieve this goal? As an exercise, do a study of the structures used in your community as emergency shelters. (Many times these are school buildings, as in New York.) Are they accessible? Do they live up to the criteria established in the CALIF and BCID cases? If not, are there plans to bring them up to those standards?

Summary Even though unequal treatment had occurred in disaster and emergency response programs for many years in the United States, a civil rights consciousness did not firmly take hold until

Chapter 10 l Statutory Protections for Individual Rights   189

after Hurricane Katrina. Since then, much greater attention has been paid to antidiscrimination principles in the context of the all-hazards planning and program execution. These principles center on the importance of ensuring that all persons can secure the full benefits of those programs, including persons with limited language abilities or physical capacities, regardless of whether discriminatory treatment resulted from intentionality or indifference.

Important Terms ● ● ● ● ● ● ● ● ●

Disparate impact Disparate treatment Federal financial assistance Grant beneficiaries Grant recipients Office of Civil Rights and Civil Liberties Program access requirements Section 504 Test case or structural reform litigation

Review Questions Both the Constitution and federal statutes address antidiscrimination issues. How do the two sets of legal principles overlap? How do they differ? For example, how would Constitutional analysis of discrimination against persons with limited English proficiency or disabled persons differ from the statutory approach?

11 Stafford Act Assistance to Communities Introduction By far the most important single federal statute in the area of disaster management is the Robert T. Stafford Disaster Relief and Emergency Assistance Act, commonly known as the Stafford Act. Its stated goal is “to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from such disasters.” The agency responsible for implementing the Stafford Act is the Federal Emergency Management Agency (FEMA). Through FEMA, tens—sometimes hundreds—of millions of dollars are distributed each year to help individuals and communities recover from natural or human-caused disasters. The Stafford Act and the case law interpreting it have raised a number of legal questions that control how, when, and whether relief activities can receive federal support. This chapter will focus on the act’s definitions, the declaration process, eligibility for various types of assistance, and oversight. These issues are both weighty and frequent; in a typical year, dozens of events give rise to declarations under the Stafford Act. You will learn the ways in which the Stafford Act treats “major disasters” and “emergencies” differently, both in how they are declared and in which specific benefits they trigger; the different forms of aid that state and local governments can obtain from federal officials; and the nature of federal oversight of the usage of these funds. This chapter explores issues related to aid that goes to governmental and some nonprofit entities for community-wide projects. The next chapter addresses forms of aid available to individuals.

History Until well into the 20th century, disaster aid was episodic and unpredictable. Congress reacted to emergencies on an ad hoc basis, one disaster at a time. The 1950 Disaster Relief Act (DRA) was the first law to provide for federal aid to states and cities across multiple categories of disaster types. Throughout the 1960s and 1970s, Congress enacted a series of bills that added new eligibility criteria to the DRA and created an uncoordinated tangle of agency responsibilities. In 1979, President Carter consolidated more than 100 federal programs into FEMA, an independent agency that existed outside any Cabinet Department. In 1988, Congress passed the Stafford Act, named after the Vermont senator who was its chief sponsor. The Stafford Act revised and streamlined federal assistance in disaster The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00011-5 © 2018 Elsevier Inc. All rights reserved.

193

194  THE LAW OF EMERGENCIES

and emergency situations. In 2002, as part of the creation of the Department of Homeland Security (DHS) in the wake of the September 11 attacks, FEMA lost its independent agency status and was made part of DHS, where antiterrorism programs appeared to take priority (see Chapter 6). After the dismal federal response to Hurricane Katrina, Congress passed new legislation in 2006 making FEMA a more distinct entity, with enhanced authority, but keeping it within DHS. The most recent legislation making significant changes in the administration of the Stafford Act was the Sandy Recovery Improvement Act of 2013.

Definitions The Stafford Act enables multiple forms of assistance to flow to states and localities and to individual victims of catastrophic loss. It creates two primary categories of events that qualify for such aid: “major disasters” and “emergencies,” each with a specific definition. Depending on the category, different forms of assistance are available. A “major disaster” is Any natural catastrophe (including any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm or drought), or, regardless of cause, any fire, flood or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby. (42 U.S. Code § 5122(2))

An “emergency” under the Stafford Act is Any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of catastrophe in any part of the United States. (42 U.S. Code § 5122(1))

Some events will fit into one category but not the other. For example, actual damage is required for a declaration of disaster, but the President can anticipate an emergency and issue a declaration absent actual damage. Some events fit into both categories, and there will be specific language in a declaration to indicate that both disaster and emergency aid are authorized. (Alternatively, there may be two separate declarations.) Read the definitions above closely and consider these hypotheticals: ●

How would a bioterrorist attack accomplished by the release of smallpox virus be classified?

Chapter 11 l Stafford Act Assistance to Communities  195

Could a computer virus that paralyzed the nation’s financial and telecommunications infrastructure qualify as either a major disaster or an emergency? ● What about radiological contamination? ●

There are a few catastrophic events for which separate administrative channels have been developed. Probably the best-known example would be a large oil spill, such as the Deepwater Horizon accident in the Gulf of Mexico in 2010. The lead federal agency for responding to oil spills is the U.S. Coast Guard, which, like FEMA, is a component of DHS. The Coast Guard will determine whether a given spill should be classified as a “spill of national significance” (SONS). SONS is defined as “a spill that due to its severity, size, location, actual, or potential impact on the public health and welfare of the environment or the response effort, is so complex it requires extraordinary coordination of federal, state, local, tribal, and responsible party resources to contain and clean up the discharge.” Classification of the event as a SONS frees up additional federal resources for the response.

When an “Emergency” Is Not a “Disaster” or Vice Versa Not every request for a declaration of either “disaster” or “emergency” under the Stafford Act is granted. During just the first half of 2016, e.g., FEMA denied applications from three states: Michigan—for efforts to ameliorate the contamination of water in Flint Virginia—for damages caused by eight tornadoes that hit the state in one day ● Florida—for the public expenses caused by a gunman’s attack on an Orlando nightclub. ● ●

Each example raises slightly different legal questions. Together, the three situations illustrate the importance of the definition section in the Stafford Act. In Michigan, the Governor sought a declaration of major disaster based on the contamination of Flint’s water supply, which occurred after city officials changed the source for the city’s water without using corrosion control treatments for lead pipes that carried water from the new source to the city’s population. As a result, the water in Flint contained unsafe levels of lead, and some residents became ill. FEMA denied the request for a disaster declaration because the situation was “a man-made crisis instead of a natural catastrophe. It also wasn’t caused by an explosion, fire, or flood.” The President had already declared an emergency with regard to Flint. Based on that action, the federal government furnished bottled water, filters, testing kits, and other supplies. Why do you think that the Governor nonetheless pressed for a declaration of disaster? In Virginia also, the Governor sought a declaration of a major disaster, submitting a 47-page letter with appendices documenting the costs and extent of the damages from the tornadoes. FEMA denied the request for a disaster declaration because the damages were not of “such severity and magnitude as to be beyond the capabilities” of state and local resources. No application was made for a declaration of emergency. After a gunman killed 49 people inside a nightclub in Orlando, the Governor of Florida sought a declaration of emergency, arguing that the President himself had called the event a

196  THE LAW OF EMERGENCIES

“horrific massacre.” FEMA denied the request because “your request did not demonstrate how the emergency response associated with this situation is beyond the capability” of state and local police and because the Governor’s letter did not “identify any direct federal assistance needed to save lives or protect property.” Note that denial of a Stafford Act declaration does not equate to denial of all federal financial assistance, since other programs may apply. In the third example above, the Department of Justice provided funds to help pay overtime expenses incurred by Orlando police officers, without the need for a declaration of emergency. As described earlier, oil spills may trigger nonStafford Act aid. Depending on the facts of each situation, there might be independent program resources available from other agencies also, such as the Environmental Protection Agency, the Federal Housing Authority, the Federal Highway Administration, or the Department of Health and Human Services. And especially in the wake of a catastrophic event, Congress can choose to appropriate more funds outside the Stafford Act framework, as occurred after Hurricane Sandy, when Congress voted to allocate $50.7 billion in additional aid.

Critical Thinking Should Congress amend the Stafford Act definitions? If so, what types of situations should the revised definitions include? What factors or minimum measures of harm should be considered? Return to this question when you read Kansas v. United States below. Although the definitional sections of the statute were not at issue there, the incident that gave rise to the case was an explosion that left hundreds of people out of work. Should that be covered? Why or why not?

The Declaration Process There can be no declaration of a major disaster unless the Governor of the affected state or the Chief Executive of a tribe submits a request for a declaration to the President. (The request is actually submitted to the FEMA regional office.) The request must include several components: A statement that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the state and local governments, and that federal assistance is necessary ● Confirmation that the state’s emergency plan has been activated ● Information on the nature and amount of state and local resources that are being committed to response efforts together with a commitment to meet the state’s share of the cost of federal assistance ● An estimate of the amount and severity of damage and of the amount and type of federal assistance that is needed. (This last requirement may be waived for “catastrophes of unusual severity and magnitude.”) ●

Chapter 11 l Stafford Act Assistance to Communities  197

The emergency declaration process is similar but less strict. Governors must first implement the state’s emergency plan. Governors and Chiefs must identify the federal aid they seek, but they do not have to specify the state and local resources that have been committed. The President also has discretion to declare an emergency (but not a disaster) without a gubernatorial or tribal request if the emergency condition is primarily or solely a federal responsibility. The impetus to do this may originate in the White House or a regional FEMA director may recommend it to the President. The first exercise of independent presidential authority came in 1995, after the bombing of the federal building in Oklahoma City. The text of the declaration itself must specify which counties within a state are covered by it, which specific federal programs are being activated by the declaration, and whether the federal share of the cost of the emergency measures will be the default amount of 75 percent or a larger amount. A declaration might specify only limited categories of relief. For example, a declaration of a major disaster might release federal funds only for debris removal or restoration of a particular facility. Unless a county is named in the text of the declaration, it will not be eligible for assistance. Although it is not reported in a published decision, former FEMA General Counsel Ernest Abbott has described a case arising from Tropical Storm Allison in 2001, when the Texas Medical Center (TMC) electricity plant was flooded. The plant had previously been part of TMC’s organizational structure, but to facilitate joint financing of expansion projects, TMC had transferred the plant to a separate nonprofit corporation, which supplied electricity to a number of nonprofit hospitals in the area. Although the plant was a nonprofit corporation and it sold electricity only to other nonprofit entities, it did not serve the general public. As a result, FEMA decided that repairs to the plant were ineligible for reimbursement with Stafford Act funds. Although the declaration process may seem like a formality, courts may insist that the formalities be followed, as we see from the following case:

State of Kansas v. United States U.S. District Court for the District of Kansas, 1990 On July 26, 1989, an explosion occurred at the Day and Zimmerman Ammunition Plant near Parsons, Kansas. As a result of this explosion, the ammunition plant was shut down and 604 of the 1422 workers were laid off. The laid-off employees were paid state unemployment benefits for 26 weeks. Upon the exhaustion of state unemployment benefits, 480 employees remained unemployed. Because of needed repairs to plant facilities, it was anticipated that these workers would remain laid off until February of 1990. On December 27, 1989, Governor Mike Hayden (“Governor Hayden”) submitted a request to FEMA for the Parsons Area to be declared a “major disaster” area. Such a declaration would make federal unemployment benefits available to the laid-off employees. … By letter dated

198  THE LAW OF EMERGENCIES

January 30, 1990, Robert H. Morris, Acting Director of FEMA (“Morris”), notified Governor Hayden that his request for declaration of “major disaster” was denied. On February 15, 1990, Governor Hayden directly appealed the denial to President George Bush (“The President”). Governor Hayden’s appeal was denied and notification of the denial was again sent by a letter signed by Mr. Morris, dated March 21, 1990. For purposes of [this] motion, the only controverted facts concern whether the decision to deny the “major disaster” declaration was made by the President or by Morris. … In his complaint, plaintiff asserts that defendant, Federal Emergency Management Agency (“FEMA”), through its Acting Director, Robert H. Morris, made an erroneous interpretation of law; considered facts outside the record without giving the plaintiff an opportunity to respond; and unfairly allowed the same person who denied Governor Hayden’s request (i.e., Morris) to deny the appeal. President Bush is the only person with the statutory power to deny such a request. … [The Stafford Act] provides in relevant part: Based upon such Governor’s request, the President may declare that a major disaster exists, or that an emergency exists. By [this] express language…, the President is the sole person empowered to deny or grant a request for declaration of major disaster. … Thus, any decision to not submit a request [to the President] which allegedly complies with procedural requirements would be a decision which FEMA and its officials have no discretion to make, and would therefore, be subject to judicial review. Thus, the court finds that it has … jurisdiction over the plaintiff’s claim that its request for declaration of relief was not presented to the President for acceptance or denial, [and the Plaintiff is allowed to proceed with the case]… Postscript—Note that the court’s ruling was only that it “had jurisdiction” to decide whether FEMA violated the Stafford Act by having the denial made by someone other than the President. This terminology means that the judge believed that the Governor’s claim was plausible and thus could not be dismissed without further consideration. The point became moot when FEMA argued in a subsequent phase of the same case that Governor Hayden’s application was barred because it was not filed within the time allowed for such requests (30 days after the event). The judge granted FEMA’s motion to dismiss on that basis, the Court of Appeals affirmed, and there was no further litigation of the issue of who can issue a denial. In fact, the procedure has remained that denial letters come from FEMA and are signed by a FEMA official. The Stafford Act gives the President broad authority to delegate all administrative functions to FEMA. The agency takes the position is that it recommends to the President whether to grant or deny an application for a declaration of emergency or disaster, but that its officials can handle the formalities of a denial letter. Only the President, however, can issue a declaration.

Overview of Assistance to Communities Under the Stafford Act, the biggest distinction between major disasters and emergencies is the difference in the forms of federal assistance that each triggers. The broadest range of types of relief will follow a disaster declaration. The distinctive categories of aid that may be deployed in response to a disaster—but not for an emergency—include programs to aid individuals,

Chapter 11 l Stafford Act Assistance to Communities  199

such as unemployment benefits, food stamps, and access to Small Business Agency (SBA) loans. (See Chapter 12.) There are several types of aid programs for public or community-wide projects. The first is primarily a source of in-kind assistance, and the remainder provide for grant funds. All are sometimes lumped together as forms of “Public Assistance.”

Direct Federal Assistance Direct federal assistance refers to the deployment of federal assets, and can be activated after a declaration of either a major disaster or an emergency. Any federal agency can be directed to send its personnel, equipment, supplies, and services to support state and local relief efforts in the event of either a disaster or an emergency. Federal workers may be sent to assist state and local employees in such activities as the restoration of public services and debris removal, dissemination of information, and distribution of medicine, food, and other supplies. The Stafford Act similarly authorizes the use of Department of Defense resources “for the purposes of performing on public and private lands any emergency work which is made necessary by such incident[,] which is essential for the preservation of life and property,” and which state and local governments cannot provide.

Public Assistance First, be sure not to confuse “public assistance” in this portion of the Stafford Act with traditional welfare programs, which are sometimes referred to with the same phrase. Here, “public assistance” has a precise meaning: it refers to programs that provide community-wide help. Public assistance funds can follow the declaration of either a disaster or an emergency. The goals of the PA program are to enable emergency protective measures and to help fund the repair, restoration, reconstruction, or replacement of facilities that provide goods or services to the public. Federal aid under this section is granted directly to the state or tribe; local governments or nonprofit groups may become subgrantees. Nonprofit organizations are eligible only if they provide essential, government-type services and are open to anyone in the general public. Pursuant to the ban on duplicative benefits (see below), aid will be provided only for damages not covered by insurance. FEMA relies primarily on three factors to determine eligibility and grant amounts under this portion of the Stafford Act: Whether the organization (including subgrantees) that will use the funds is eligible Whether the proposed services to be provided meet the criteria for reimbursement ● Whether the costs estimated or incurred are reasonable. ● ●

Together, protective measures and debris removal account for approximately 40 percent of the funding provided under the Public Assistance program. As you will see from the following, agency officials have wide latitude to certify which expenses in the Public Assistance category qualify for reimbursement.

200  THE LAW OF EMERGENCIES

California-Nevada Methodist Homes, Inc. v. FEMA U.S. District Court for the Northern District of California, 2001 …Plaintiff is a non-profit organization that owns and operates Lake Park, a retirement community in Oakland. Lake Park is a 12-story L-shaped building, divided into two wings. One floor on one of the wings contains a skilled-nursing facility, which provides 24-hour nursing care to residents who require assisted living. In 1989, Lake Park was damaged in the Loma Prieta earthquake. Plaintiff subsequently sought disaster-relief funds. [Figs. 11-1 and 11-2 show the location and impact of the Loma Prieta earthquake.] The Stafford Act and FEMA’s regulations establish different regimes for the provision of federal relief to victims of natural disasters. In general, the Act and accompanying regulations

FIGURE 11-1  Geological map of damage caused by Loma Prieta Earthquake. Source: http://quake.usgs.gov/research/strongmotion/intensity/1989.html.

Chapter 11 l Stafford Act Assistance to Communities  201

define who is eligible to obtain aid from FEMA and what types of costs are eligible for recovery. Under the regime at issue here, the Public Assistance Project, once the president declares an area to be a “major disaster,” victims of the disaster can apply for federal assistance through a state agency (the Governor’s Office of Emergency Services in California), which forwards the request to FEMA. Either a FEMA inspector, state representatives, or both then prepare a project worksheet for each discrete project for which the applicant (subgrantee) seeks funding. The project worksheet must specify the damage caused by the disaster and “must identify the eligible scope of work and must include a quantitative estimate for the eligible work. Before FEMA obligates any funds to the state agency (grantee), FEMA must approve the final project worksheet… Pursuant to this regime, between 1989 and 1996, FEMA granted plaintiff more than $10 million. On July 10, 1997, however, FEMA refused to approve an additional $573,364 in relief that plaintiff requested. This money, plaintiff claimed, was necessary to construct separate utilities for the skilled-nursing facility. According to plaintiff, state authorities mandated the construction of separate utilities, because this was required by the California Building Code. FEMA regulations, plaintiff argues, define eligible costs to include costs necessary to meet code standards in effect as of the date of the disaster. Even though the Building Code at the time of the earthquake required separate utilities, plaintiff contends, because plaintiff’s skilled-nursing facility was built under an older, less-stringent version of the building code, it shared common utilities with the rest of the building. …FEMA denied plaintiff’s request to fund the utility work … because [according to FEMA] the work was required “as a result of the subgrantee’s failure to plan for and schedule required inspections. Because this work was not required as a direct result of the disaster or by an applicable code, it is not eligible for funding” … … Section 5172 of the Stafford Act provides that the President “may make contributions” to eligible entities, such as plaintiff. The “Grant Approval” section of FEMA’s regulations pertaining to the Public Assistance Project does not contain any requirement that FEMA approve eligible costs or any standard for their approval. No regulation under the Public Assistance Project requires FEMA to approve any funding request. Rather, these regulations simply refer to costs that are “eligible,” i.e., expenses that FEMA could choose to pay. Whether to approve requests for eligible costs is a matter of agency discretion…

FIGURE 11-2  Aftermath of the Loma Prieta Earthquake Source: http://pubs.usgs.gov/dds/dds-29/

202  THE LAW OF EMERGENCIES

Hazard Mitigation Assistance FEMA defines hazard mitigation as “any cost effective measure which will reduce the potential for damage to a facility from a disaster event.” The Hazard Mitigation Assistance (HMA) program provides funding beyond what is available under the PA program so that states or tribes can undertake projects that will reduce future disaster risk. These funds can be used to retrofit existing facilities or purchase new facilities, as well as for projects such as drainage. Unlike money that is available for hazard mitigation purposes under the PA program, the separate HMA grants may be used throughout the state or tribal area including locations not directly affected by the declared disaster or specified in the declaration.

Fire Management Assistance In addition to declarations of a major disaster or an emergency, the Stafford Act creates a mechanism by which a state or tribal department of forestry can secure funds to help control wildfires. The U.S. Forest Service advises FEMA on the advisability of possible Fire Management Assistance grants. The goal is to prevent a fire from becoming a major disaster.

Ban on Duplicative Benefits The Stafford Act makes clear that there can be no double dipping under any of its provisions for assistance. 42 U.S. Code § 5155 provides as follows: (a) The President, in consultation with the head of each Federal agency administering any program providing financial assistance to persons, business concerns, or other entities suffering losses as a result of a major disaster or emergency, shall assure that no such person, business concern, or other entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program or from insurance or any other source.... (c) A person receiving Federal assistance for a major disaster or emergency shall be liable to the United States to the extent that such assistance duplicates benefits available to the person for the same purpose from another source.

Prosecution and Recoupment Inevitably, there is a tension between the need to ensure that communities that have just suffered a natural disaster receive help as quickly as possible and the risk that unscrupulous state or local actors will seize the opportunity for personal enrichment. The institution charged with auditing the use of Stafford Act funds is the DHS Office of the Inspector General (OIG). If the OIG determines that wrongdoing has occurred, there will be an effort to recoup funds and/or a case can be referred to the Justice Department for prosecution or civil suit. The OIG completes an average of slightly less than 15 audits every month.

Chapter 11 l Stafford Act Assistance to Communities  203

United States v. Roy Hebron U.S. Court of Appeals for the Fifth Circuit, 2012 Jerry E. Smith, Circuit Judge: ...Hebron was mayor of Ball, Louisiana. After Hurricane Rita made landfall in September 2005, Hebron and Brenda Kimball, the town clerk, applied for funds from the Federal Emergency Management Agency (“FEMA”). Through its Public Assistance Program, FEMA provides help to local governments so they may quickly recover from major disasters, reimbursing towns for work such as debris removal, emergency protective measures, and the repair of disaster damage to publicly owned facilities. Thus, FEMA helps towns cover the costs associated with hurricane recovery, such as extra hours worked by town employees and extra equipment used in recovery efforts. After the hurricane, Ball requested about $134,000 from FEMA. In the wake of Hurricane Gustav three years later, Hebron and Kimball again requested more than $309,000 from FEMA on behalf of Ball. But after reviewing the claim, the FBI launched an inquiry into possible fraud that implicated almost every employee of the small town, but specifically targeting the mayor, town clerk, chief of police, and several other members of the police department. The investigation revealed that town officials had engaged in extensive fraud intended to bilk FEMA out of hundreds of thousands of dollars. As examples, Hebron claimed that the town had used sixteen 1 ½ ton trucks during the Gustav cleanup efforts, when in reality it used 1-ton trucks, a difference in cost of about $11,730. Kimball and another female employee were listed in the project worksheets submitted to FEMA as operating trucks and trailers for hours, but they performed no manual labor at all during the clean-up efforts, a discrepancy of $13,397. One employee told the FBI he worked for a few hours on one weekend using a chainsaw and filling sandbags, but the documents sent to FEMA had listed him as using a chainsaw and operating a truck and trailer for thirty-two days. These are but a few examples of the many fraudulent claims; the presentence report (“PSR”) noted that “discrepancies could be found in practically every employee/contractor” claim. Other fraudulent claims by Hebron and Kimball were more complete fabrications. For instance, Hebron and Kimball billed FEMA almost $10,000 for dumpsters used following Hurricane Gustav, at the same time seeking and receiving reimbursement from Keep Louisiana Beautiful, Inc., a nonprofit organization, for the same dumpsters. As another example, Hebron requested reimbursement for about $21,000 in overtime hours worked by the town’s employees, but FEMA’s policy provides for overtime compensation only if the applicant normally pays its employees for overtime hours worked. Because Ball does not have a history of paying its employees for overtime hours, Hebron intended to defraud FEMA of all the requested overtime compensation. Upon further investigation, the FBI learned that Ball also billed more than $11,000 in overtime expenses after Hurricane Rita, though the investigation into the Rita reimbursements was less thorough, so the extent of the fraud following Rita is less well known. Hebron’s role in all of this was extensive and integral. He and Kimball prepared and submitted the official FEMA documents and the fraudulent internal Town of Ball documents that served as backup for all the town’s employees, such as employee time sheets and town checks payable to individual employees. Hebron even went so far as calling a meeting for all town employees at which each employee was presented with bi-weekly time sheets to sign. The employees did not know who had calculated the work hours performed or how it was figured,

204  THE LAW OF EMERGENCIES

but Hebron openly discussed “fudging” time and squeezing as much from FEMA as possible. On a separate occasion, when Barber and another employee presented Hebron with mileage reports from the police cruisers, Hebron insisted that the mileage be inflated. After being indicted on three counts, Hebron pleaded guilty, pursuant to a written plea agreement [to the crime of ] conspiracy to defraud the United States... [One factor for the judge to consider in sentencing is the amount of money at issue.] The government recommended a loss calculation between $70,000 and $120,000; Hebron argued that the appropriate number was $66,798.57; and the pre-sentence report (PSR) calculated the loss as over $320,000. The government then endorsed the PSR’s calculation.... ...The court sentenced Hebron to 48 months in prison, three years of supervised release, $25,000 in fines, and $105,556.10 in restitution to FEMA, owed jointly and severally with his codefendants. [Hebron argued on appeal that his sentence was unlawful because the prosecution reneged on its plea agreement. The court agreed that the prosecution had violated its agreement by adopting the PSR calculation, but ruled that the violation did not affect the ultimate sentence that Hebron received. Hebron also argued that the trial court’s calculation of loss improperly included legitimate payments from FEMA to the Town of Ball with the fraudulent ones.] ...Hebron should not reap the benefits of a lower sentence because of his ability to defraud the government to such an extent that an accurate loss calculation is not possible. As the government reasons, Hebron should not be able to hide behind his extensive fraud to escape a longer sentence. Thus, ...we conclude that although the government generally bears the burden of showing that the alleged intended loss was garnered by fraudulent means, where the government has shown that the fraud was so extensive and pervasive that separating legitimate benefits from fraudulent ones is not reasonably practicable, the burden shifts to the defendant to make a showing that particular amounts are legitimate. Otherwise, the district court may reasonably treat the entire claim for benefits as intended loss. There may be alternative methods that could have yielded a more accurate calculation. For example, the probation officer could have requested from FEMA data about nearby towns of a similar size, then consider the average amount requested after Gustav as an estimate of the amount of legitimate reimbursements requested by the town, then subtracting that amount from the total request to reach the intended loss. Although other courts have taken a similar approach in circumstances like these, the facts of this case do not disclose whether FEMA has such data, whether Hurricanes Gustav and Rita were large and powerful enough to affect different parts of the state in a uniform manner, or whether a sampling of similarly sized towns around Ball would have a small enough standard deviation such that the average reimbursement claim amount would be a reasonable estimate. This court need not determine whether the district court’s estimate was the most reasonable, but rather only that it is a reasonable calculation. Hebron provided no figures such as the one suggested above, nor any other evidence, to furnish the court with a reasonable estimate of the amount of benefits legitimately requested by the town. Meanwhile, the government has persuasively shown that Hebron’s fraud, which included the fabrication of nearly every relevant town record, was so extensive and pervasive that separating the town’s legitimate claims from the fraudulent ones is, as conceded by all parties, impossible. As a result, the court committed no error by including the entire amount requested from FEMA after Hurricane Gustav, as well as a small portion requested after Hurricane Rita, as intended loss.

Chapter 11 l Stafford Act Assistance to Communities  205

City of Chicago v. Federal Emergency Management Agency U.S. District Court for the Northern District of Illinois, 2013 Charles Ronald Norgle, District Judge. Following a snowstorm in 1999 and upon the request of the governor of Illinois, on January 8, 1999, President Clinton issued an emergency declaration for numerous counties in Illinois, including Cook County, which were affected by a severe snowstorm with near-record accumulation. The declaration made the counties eligible for federal funding to help pay for emergency work, including snow removal, undertaken as a result of the storm. Pursuant to agreement, FEMA provided funding for 75% of the cost of emergency work, which included equipment and overtime pay. The City reported that $6,397,236 was spent in Cook County on snow removal at Chicago O’Hare International Airport and Chicago Midway International Airport. FEMA provided funds to the City equal to 75% of those expenses, totaling $4,797,927. Approximately two years later, in December of 2000, Chicago experienced another severe snowstorm which resulted in an emergency declaration for Cook County. As a result of this storm, $1,452,330 was spent on snow removal at O’Hare and Midway. FEMA once again provided funds to the City equivalent to 75% of that amount, totaling $1,089,247. In September of 2003, the Department of Homeland Security’s (“DHS”) Office of Inspector General (“OIG”) conducted an audit of public assistance funds given to the City between January 2, 1999, and January 29, 2002. The OIG concluded that during that period, the City had claimed $7,849,566 in public assistance which constituted a duplication of benefits for emergency snow removal at O’Hare and Midway. Specifically, the audit revealed $6,397,236 in duplicate costs from snow removal at O’Hare and Midway following the January 1999 snow emergency, and $1,452,330 in duplicate costs for snow removal following the December 2000 snow emergency. Despite those findings, it is undisputed that the City only received a total of $5,887,174 in emergency relief from FEMA for the snow removal at O’Hare and Midway, which represented the statutorily designated 75% of the costs for each of the two emergencies. As a result of the audit, the OIG issued a subpoena to the City on April 30, 2004, in order to ascertain the amount of funds the City recovered from the Airlines for snow removal following the January 1999 and December 2000 snow emergencies. The OIG released an audit resolution on January 24, 2005, determining that the City recovered $5,227,359 of the $7,849,566 in snow removal costs from the Airlines, which constituted an outright duplication of benefits. In addition, the DHS’s OIG concluded that the remaining $2,622,207 also constituted a duplication of benefits because the City’s “failure to charge the airlines the remainder of the costs did not mitigate the airlines’ contractual obligations to pay these costs, nor diminish the City’s ability to receive payment had they charged the costs to the airlines.” The contractual obligations between the Airlines and the City are outlined in the Chicago– O’Hare International Airport Amended and Restated Airport Use Agreement and Terminal Facilities Lease (the “O’Hare Use Agreement”) and the Chicago Midway Airport Amended and Restated Airport Use Agreement and Facilities Lease (the “Midway Use Agreement”) (collectively, the “Use Agreements”). The Use Agreements between the City and the Airlines were in effect at the time of the January 1999 and December 2000 snow emergencies. The Use Agreements required the City to operate and maintain the airports, including snow and ice removal. In turn, the City charged the Airlines a fee to recover the net costs of

206  THE LAW OF EMERGENCIES

maintenance and operation. The fees were based on monthly estimates, and at the end of each fiscal year, the fees paid were compared with actual net costs expended by the City. If the actual net costs were higher, the Airlines were charged the difference, and if the monthly fees exceeded the actual net costs, the City refunded the excess amount to the Airlines. Under the O’Hare Use Agreement, the City was obligated to use its best efforts to minimize the operation and maintenance charges to the Airlines. In the event that a premise used by the Airlines under the agreements was damaged or destroyed, the City was to maintain insurance to cover the costs. If the insurance proceeds proved insufficient to cover the costs of repair, the City was to issue bonds to cover the deficiency. [The City filed appealed the audit decision to de-obligate funds. When its appeal was denied, the City filed this lawsuit.]... As an initial matter, the Airlines argue that duplicate funds were not “available” under any statutory interpretation of the word—unambiguous or otherwise—because the Use Agreements did not require the Airlines to pay the City for disaster or emergency snow removal. However, the City and FEMA agree that, under the provisions of the Use Agreements covering operating and maintenance expenses between the City and the Airlines, the Airlines are obligated to pay the City for the cost of the snow removal that occurred following the January 1999 and December 2000 snow emergencies. Indeed, while the Use Agreements provide that the City is responsible for the removal of snow and ice as part of its duty to maintain and operate the Airport, the Airlines are specifically required to pay the City fees to reimburse those net costs. Accordingly, the Court rejects the argument that the emergency snow removal in January 1999 and December 2000 would not be covered under the agreement. In the alternative, the Airlines argue that even if the Use Agreements would normally require them to pay for the cost of snow removal, it was “commercially reasonable” for the City to pursue the funds from FEMA.... [The Airlines rely on a case which held that duplicate benefits include those that a party could have received if it acted in a commercially reasonable manner, as well as those it actually received.] ...[T]he Airlines argue that it would have been commercially un reasonable for the City to have pursued the costs of snow removal from the 1999 and 2000 snow emergencies from the Airlines because “[i]t is doubtful that the City could have successfully charged the Airlines for the disaster snow removal.” However, the Airlines provide no factual support beyond their mere speculation that the City would have been unable to recover from them. Indeed, as discussed above, the Use Agreements required the Airlines to pay the City for the net costs of maintenance and operation—including snow removal. Because the Airlines fail to provide any evidence that it would have been commercially unreasonable for the City to recover the costs of snow removal from them, the Court rejects the argument. Next, the City and the Airlines argue that the duplicative benefits provision does not apply to money from the Airlines because the words “benefits” and “financial assistance” in the provision refers only to other government aid and insurance-like proceeds—not amounts received through a contract between a landlord and a tenant, such as the Use Agreements between the City and the Airlines. [The court rejects this argument, ruling that 42 U.S.C. § 5155 clearly covers duplicative benefits or assistance that come from “any other program or from insurance or any other source.” (emphasis added)]...

Chapter 11 l Stafford Act Assistance to Communities  207

This interpretation is also consistent with other courts’ determinations that payments from private, non-insurance sources can constitute duplicate benefits. In Public Utility District No. 1 v. Federal Emergency Management Agency, the court upheld FEMA’s de-obligation of fluids to Snohomish County, Washington where it found that a private utility company was responsible for reimbursing the Public Utility District of Snohomish County for its share of the cost of repairing jointly owned utility poles. In yet another case, FEMA’s decision to de-obligate funds as a duplication of benefits was upheld when a private developer purchased damaged homes threatened by landslides following the 1998 El Nino storms. City of Laguna Niguel v. Fed. Emergency Mgmt. Agency. The city had previously received aid from FEMA in order to purchase the homes so that they could be destroyed in order to stabilize the land around them, but the developer subsequently entered into a private settlement agreement with the homeowners to purchase the same homes, thereby creating a duplication of benefits to the city. Similarly, on the basis of a private contract between the City and the Airlines, the Airlines’ obligations to pay the net costs of snow removal at O’Hare and Midway constitutes a duplication of benefits as to the funds paid to the City by FEMA... ...While the Airlines attempt to distinguish their contracts with the City as “lease agreements,” in reality the contracts are no different than any other private contract—including those between an insurer and an insured, which undisputedly fall under the scope of the Stafford Act. The City leases space at O’Hare and Midway to the Airlines. In exchange for taking care of operations and maintenance—including snow removal—the City charges the Airlines a fee as described in the contract. Because the money FEMA paid to the City for snow removal at O’Hare and Midway was covered by the Use Agreements between the City and the Airlines, the Court determines that FEMA’s finding of duplicate benefits was a reasonable interpretation of the Stafford Act....

Appeals Applicants who wish to contest a denial or limits on the amounts of eligible costs or reimbursements can appeal. An appeal must be filed within 60 days after the applicant is notified of the initial denial decision. There are two internal levels of administrative appeal within FEMA. If a party chooses to contest the agency’s determination after that point, the recourse is to file suit in federal court. The wave of disputes over amounts to be paid for damage caused by Hurricanes Katrina and Rita led to the creation of an arbitration option. For claims raised in connection with those two events, a party could request arbitration if the amount in question exceeded $500,000 and if a timely initial appeal had been filed. The following decision offers a window into how such disputes are resolved.

208  THE LAW OF EMERGENCIES

In the Matter of City of Kenner U.S. Civilian Board of Contract Appeals, 2015 Before the arbitration panel consisting of Board Judges Somers, Vergiglio, and Walters. The City of Kenner (applicant) and the Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) (grantee) dispute the determination by the Federal Emergency Management Agency (FEMA) that the City of Kenner may not obtain financial assistance for the repair of particular panels of residential streets (here referencing roads, curbs, and sidewalks) available under the Stafford Act for damage relating to Hurricanes Katrina and Rita. The applicant maintains that debris removal following the hurricanes caused damage to particular portions of those streets. The applicant seeks financial assistance for the repair. To be eligible for assistance, an item of work must be required as the result of a major disaster event. The record reveals that the damage is consistent with the age of the roads, the minimal, if any, repair or maintenance, and the regular traffic of garbage trucks over the roads. The panel concludes that the record fails to demonstrate that the work is required because of the hurricanes. Accordingly, the applicant does not prevail.... To be eligible for financial assistance, an item of work must be required as a result of the declared disaster. This means that cause and effect must be established. The record here is lacking in proof positive to establish the connection between (a) the hurricane and debris removal and (b) the damage. The record, through photographs and descriptions, reveals street panels damaged with cracks or broken pavement; that damage must be causally linked to the disaster for financial assistance to be permissible. That is, damage cannot pre-exist the hurricane and cannot have been caused by events other than the disaster or related events. In 2001, the applicant had its roads inspected, as it established a repair and maintenance plan. The roads, as rated according to recognized rating criteria, generally ranged from good to excellent. These ratings and the record contain no specifics as to particular panels on a given road. The applicant did not complete all of the suggested repairs identified in the plan, spending but a small portion of the suggested dollars required for the work. Most of the roads in question were at least twenty years old in 2001, and could have been ten or more years older than that. Of the roads in question, all but one is a concrete pavement over compressed clean sand; the other pavement is asphalt. The nominal thickness of the concrete pavement is six inches and of the sand is twenty-four inches. At the end of August 2005, the city was hit by Hurricane Katrina and its aftermath. Flooding subsided within a few days; however, trees were uprooted, buildings and other property were destroyed or damaged, and debris clean-up ensued over approximately eighteen months. The total recorded debris (vegetative and construction and demolition) for the city was approximately 1.35 million cubic yards, with approximately 40,000 haul tickets for the city. A variety of heavy equipment was used to move, pick up, and remove debris. Vehicles passed over the approximately 200 miles of the city roads.... For inclusion in the project worksheet underlying this dispute, the applicant sought $18,342,733.43 to repair all damage to 2483 specific panels or segments of twenty-four roads (including curbs and sidewalks) said to arise from debris removal. FEMA determined that for 519 of these locations, the damages were causally connected to the hurricane, and obligated $1,511,224.03 on the project worksheet. Those locations are not here at issue. This arbitration

Chapter 11 l Stafford Act Assistance to Communities  209

concerns the remaining 1964 sites, particular panels or segments of residential streets, some of which are feeder-streets over which traffic would pass to more major arteries to dispose of debris. FEMA has concluded that these sites were not damaged or that the damage has not been shown to be a result of the declared disaster. FEMA does not pay for either road maintenance or the loss of the useful life of a road. FEMA pays for the repair of damage. This case is resolved by detailing a few of the factors which do not permit the panel to conclude that damages were related to the hurricane. The factors focus on the actual conditions of the pavement pre- and post-Katrina, the lack of maintenance, the age of the pavement, the impact of equipment used to transport debris, and other potential causes for damage. Credible evidence of the actual conditions at the specific locations is lacking at the preKatrina time (through August 2005) and during the post-Katrina time until several years after debris removal ceased. FEMA and the applicant or its representatives walked city streets at various times post-Katrina without identifying the damages here at issue. Various casual observations detailed during the hearing are of limited value in determining when the damage may have occurred and what may have been the cause. Also, hurricanes and lesser storms, occurring prior to and after Katrina before the presently alleged damages were documented, resulted in flooding and instances of debris removal over these streets. Although these incidents did not generate the volume of Hurricane Katrina debris, the passage of time and limited evidence make it difficult to attribute damage to a given cause. The limited repairs and maintenance for the years prior to the hurricane and the lack of maintenance after the hurricane through the present has left cracks open in the pavement. A lack of joint and crack sealant permits water to enter and potentially wash out underlying sand and support. With a space under the pavement, cracks may widen and breaks can occur with routine road usage over time. Further, dirt and other materials may fill the void between pavement slabs. With this material, which lacks the properties of a sealant, temperature variations may cause adjacent pieces of pavement to buckle resulting in further damage. The effects of the lack of maintenance were captured on charts and detailed in testimony, particularly with the age of the pavements in question. The condition of the pavement would undergo an accelerated decline without proper upkeep. As a result, damage cannot simply be attributed to the 2005 hurricane and related debris removal operations. Pavement does not have an unlimited life. The applicant has not firmly established the age of any piece of pavement; however, the parties are in agreement that the roads presently are at least thirty to forty years old. The record lacks credible, documented evidence and therefore does not support a conclusion that the roads in question are any more damaged than other residential roads of a similar age in the city that might have had lesser debris traffic. The applicant has identified various debris generating incidents, such as downed trees or buildings or portions thereof that were removed, located within the vicinity of the damaged pavement locations at issue here. However, the existence of such debris has not been shown to automatically translate into damaged pavement. The record does not establish that use of heavy equipment on the residential streets was outside of the design tolerances.... The record shows that a garbage truck would have a greater impact on a road than each of the debris trucks used; this is because of weight load distribution over the axles. While the applicant correctly posits that testimony of a FEMA witness and modeling analysis regarding traffic over eight-inch thick concrete pavement (the analysis was developed based on now-

210  THE LAW OF EMERGENCIES

current city standards, when the applicant had not identified the age or construction design of the streets) has not been shown to represent or extrapolate to the actual conditions of six-inch thick pavement, the record does not permit the Board to conclude that the vehicle traffic over the actual pavement would have caused damage. The applicant bears the burden of proof. Persuasive proof is lacking to support the applicant. Neither the actual volume or weight of debris transported nor the number and type of vehicular traffic over the portions of the streets at issue have been established in this record. The total 1.35 million cubic yards and related weight of debris and traffic reflected by the 40,000 haul tickets did not traverse any street or panel here at issue. Because the record lacks particulars, one element in demonstrating a causal link between debris removal and damage has not been established. The record establishes that roads subsided (dropped in elevation) as a result of the pumping of groundwater. This pumping and subsidence, unrelated to the hurricane, itself could lead to cracking and other damage. The applicant has not established a basis to discount subsidence as a cause of the damage at any particular location. The applicant has failed to satisfy its burden of proof. By not showing that the damage was caused by the hurricane or the pickup and transport of the resulting debris, the applicant does not prevail.

Summary The Public Assistance provisions of the Stafford Act annually enable tens, sometimes hundreds, of millions of dollars to reach states and communities that suffer major disasters. For most emergency management officials, the Stafford Act may be the only law that they can cite by name, and indeed, it may be the only one they need to know by name. With that much money at stake, compliance with its provisions is carefully policed in order to prevent fraud and waste.

Important Terms Duplication of benefits Emergency ● Inspector general ● Major disaster ● Public assistance ● Spill of national significance ● ●

Review Questions 1. How do the procedures required under the Stafford Act illustrate the dynamics of federalism? 2. Do you agree with how the limitations on Stafford Act aid are structured? Why or why not?

12 Stafford Act Assistance for Individuals Introduction In addition to the Stafford Act grants that the federal government provides to state, local, or tribal governments and nonprofit organizations (see Chapter 11), there is also assistance ­available to individuals and families who have survived disasters. In this chapter, you will learn about the multiple forms of Individual and Household Assistance, the differing eligibility rules, and the extent to which applicants may have an enforceable right to access certain of these benefits. In the context of the last question—whether a right exists—this chapter will introduce you to the concept of sovereign immunity, an immensely important area of law that will be examined in greater detail in Chapter 19.

Overview From the perspective of individuals harmed by sudden catastrophic events, a great deal depends on whether a Stafford Act declaration is for a disaster or an emergency. If the President declares either an emergency or a major disaster, there are obviously benefits to everyone in the community from the Direct Federal Assistance services and the Public Assistance programs that become available. At the more individual level, these programs can provide for temporary shelter and food, as well as other supplies for daily life. It is only when a major disaster is declared, however, that individuals in the affected counties become eligible for a wide range of federal assistance programs that are geared to helping those who suffered most from the event. Most of the Individual Assistance programs differ from the Public Assistance programs in that persons contact FEMA directly to apply, rather than going through their state, local, or tribal governments. For some non-Stafford Act programs, individuals must contact a different federal agency (e.g., Small Business Administration loans) or apply through a state agency (e.g., unemployment benefits). They share in common with Public Assistance the limitation that they are available only to persons who lack insurance coverage or benefits from other sources that cover the needs in question. Because of that principle, their effective impact is to provide the greatest assistance to those most in need. Housing assistance is by far the biggest single component of the Individual Assistance programs. This chapter will examine Stafford Act housing and nonhousing benefits and

The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00012-7 © 2018 Elsevier Inc. All rights reserved.

211

212  THE LAW OF EMERGENCIES

non-Stafford Act benefits. The final segment of the chapter will explore the tension between individual rights to certain benefits and the scope of governmental immunity from lawsuits.

Stafford Act Programs The Individual and Household Assistance program offers a variety of forms of relief, within a monetary cap set by FEMA. (The current amount is approximately $26,000.) FEMA provides the following eligibility criteria for compensatory grants: Eligibility for Housing Benefits—Money to repair a home is limited to making a home safe and sanitary so that the applicant can live there. FEMA will not pay to return a home to its condition before the disaster. Eligibility for housing-related benefits requires that: ● The applicant has filed for insurance benefits and the property damage is not covered by insurance. ● The applicant or another household member is a citizen of the United States, a noncitizen national, or a qualified alien. ● The home is the applicant’s primary residence, not a secondary or vacation home. ● The home is located in the counties that have been declared a disaster area by the President. ● The home is either not habitable or not accessible became of the disaster. ● The applicant has no other adequate rent-free housing available. ● The applicant incurred expenses only from leaving the home as a precaution and was able to return immediately after the incident. ● The only losses are business losses (including farm buildings other than the farmhouse). ● The damaged home is located in a designated flood hazard area and the community is not participating in the National Flood Insurance Program. In this case, the flood damage would not be covered, but the applicant might qualify for rental assistance or nonhousing-related benefits. For other benefits—Eligibility requires that: ● The property loss or damage must not be covered by insurance. ● The losses are located within the counties identified as the disaster area. ● The applicant or a household member has one of the citizenship statuses identified above. ● The applicant has “necessary expenses or serious needs.” Other Stafford Act compensation programs include coverage for: ● Medical and dental expenses ● Funeral and burial expenses ● Clothing ● Furniture and appliances ● Tools or equipment required for employment ● Necessary educational supplies or equipment ● Fuels for heat

Chapter 12 l Stafford Act Assistance for Individuals  213

● ● ● ●

Costs of clean up equipment Damaged vehicles Moving and storage expenses Child care expenses.

Forms of Housing-Related Assistance The criteria for housing benefits listed above focus on grants to assist with home repairs. FEMA may also require that an applicant applies for a Small Business Administration (SBA) loan, which can provide a loan of up to $200,000 to owners and renters whose residences were seriously damaged by a disaster. The amount is based on the amount of verified uninsured losses. In the immediate aftermath of a disaster, temporary shelter will be made available on an emergency basis. If, occurred after Katrina, the individual remains unable to return home after a few days, FEMA will secure substitute short-term housing. Short-term housing may take the form of rental units in nearby locations or the infamous mobile homes that have been used after such massively disruptive events as Katrina or Sandy. FEMA will provide rental assistance payments to enable people to move out of the short-term housing. After normal storms, this graduate set of benefits—from temporary shelter to short-term housing to rental assistance—may suffice. After a disaster as massive as Katrina, it did not. FEMA received an estimated 1.7 million requests for some form of housing assistance after Katrina, most from Louisiana and Mississippi, but also from Alabama and Texas.

Joint or Non-Stafford Act Benefit Programs Survivors of disasters may also access a variety of other benefits available from other components of the federal government. These include: Disaster-Related Unemployment Insurance is authorized by the Stafford Act and administered by whichever state agency handles normal unemployment benefits. An applicant whose job loss was caused by a disaster can be eligible for up to 26 weeks of payments. ● The Department of Agriculture has a Rural Development program that can make emergency loans to farmers and ranchers to compensate for actual losses to essential property and production capacity. ● The Small Business Administration offers low-interest loans of up to $1,500,000 to businesses to repair or replace destroyed or damaged business facilities, inventory, machinery, and equipment. ● Together with the National Center for Missing and Exploited Children, FEMA operates a National Emergency Family Registry and Locator System that is accessible online or by phone 24/7. The Registry is activated each time a disaster is declared. ●

214  THE LAW OF EMERGENCIES

Challenging Benefits Decisions In general, the courts view benefits decisions made as “discretionary,” which means that FEMA officials are given broad leeway to interpret and administer the program. In the two opinions that follow, both emerging from a lawsuit filed by victims of Hurricane Katrina, the court analyzed which of FEMA’s decisions were discretionary, and ruled that the agency was liable for some of its nondiscretionary actions.

McWaters v. FEMA I U.S. District Court for the Eastern District of Louisiana, 2005 … On August 29, 2005, at around 6:10 a.m., Hurricane Katrina devastated the Gulf Coast of the United States. Striking in the early morning, Hurricane Katrina initially made landfall in southeastern Louisiana before moving across Mississippi and Alabama, leaving a swath of destruction in excess of 250 miles. As a result of the storm, there were three significant separate levee breaches in New Orleans and the surrounding area, submerging up to 80% of the greater metropolitan in water as deep as twenty feet. This water did not recede completely for several weeks thereafter, and a majority of the homes and structures in Orleans Parish and the parishes surrounding it were destroyed or washed away. … As a result of the storm and the ensuing floods, many people, especially those in the city of New Orleans, were required to evacuate their homes, some literally swimming to safety. Most of those who, for a variety of reasons (mainly a lack of resources) failed to evacuate prior to the storm were either rescued or removed via a combination of local, state, and federal government … officials dispatched from all [over] the country, including the National Guard. Most of these rescued citizens were placed on buses or airplanes out of New Orleans and bound for shelters, hotels, and motels in various parts of the country, with most not knowing their final destinations. Parts of the city remained flooded for weeks, and citizens were forbidden from returning by local and state officials working in connection with the federal government. Over 1200 Americans died, with over 1000 of these deaths in Louisiana alone, many from drowning. For those who did get out, the vast majority of their homes were destroyed or rendered uninhabitable or inaccessible as a direct result of the storm, and in some cases residential areas remained closed to homeowners for over three months. Notably, more than 90,000 people in the affected areas had incomes of less than $10,000 per year. In Orleans Parish alone, more than 40% of children affected by Katrina lived in households with incomes below the federal poverty line. According to the Center on Budget and Policy Priorities, of the 5.8 million individuals who lived in those states struck hardest by Katrina, over one million lived in poverty prior to the storm. In New Orleans, 28% of the city’s residents were living in poverty prior to Katrina, and those who were poor commonly lacked their own means of transport. For instance, 65% of poor elderly households in New Orleans did not have a vehicle, making it more difficult for them to escape the storm and its effects. About one of every three people who lived in areas hit hardest by Katrina were African-American; in contrast, one of every eight people in the nation is African-American. More than one in three black households in New Orleans (35%), and nearly three in five poor black households (59%) lacked a vehicle.

Chapter 12 l Stafford Act Assistance for Individuals  215

As a result of the destruction, evacuees were dispersed to forty-five states, with more than 250,000 people ending up in shelters, most with nothing left. Others were placed by the Red Cross into its “Direct Payment Hotel/Motel Program.” This program allowed evacuees with few resources to stay in hotels and motels paid for by the Red Cross until such time as evacuees were able to find more permanent housing. On October 24, 2005 the Federal Emergency Management Agency (“FEMA”) took over the hotel/motel program and it became known as the “Short-Term Lodging Program.” FEMA is the federal agency responsible for providing disaster victims with temporary housing assistance, either in the form of financial assistance to pay for rental housing, or a trailer or mobile home. FEMA’s obligations arise pursuant to the … Stafford Act. … On November 15, 2005, FEMA announced that as of the close of business on November 30, 2005, it would cease funding the Short-Term Lodging Program … Subsequently this deadline was extended by FEMA directive to December 15, 2005, or January 7, 2006, with extensions being granted on a state-by state basis and depending upon the number of evacuees in hotels or motels in each state. Only those ten states that were currently housing the greatest number of evacuees were eligible to apply for the January 7, 2006, extension. As of December 9, 2005, FEMA again modified this date with a letter stating that those individuals staying in hotels in any State that have yet to receive a decision on their application for individual assistance by December 9, 2005, or have been approved but not yet received that assistance, would have their current hotel subsidy extended to January 7, 2006. FEMA … informed the Court that the states of Louisiana, Mississippi, and Texas have applied for and been granted the January 7, 2006, state extension. Plaintiffs … have applied for and, as of the date of filing [of this case], had failed to receive, any disaster assistance from FEMA. … [Temporary Housing Assistance Payments] …[T]he Stafford Act provides: “[A]n individual or household shall not be denied assistance under paragraph (1)[Temporary Housing] … of subsection c [Types of Housing Assistance] solely on the basis that the individual or household has not applied for or received any loan or other financial assistance from the Small Business Administration or any other Federal Agency.” Despite this provision, plaintiffs have provided declarations showing that individuals with FEMA have either misinformed or not fully informed applicants for Temporary Housing Assistance [that an SBA loan application] is only necessary if “Other Needs Assistance” (medical, dental, and the like) is required. FEMA has also not made it clear that even if Other Needs Assistance is sought, one may still receive the Temporary Housing Assistance in the meantime or without applying for an SBA loan. Therefore … the Court finds that FEMA has violated a mandatory duty through the miscommunication or inartful communication of the protocol for receiving Temporary Housing Assistance by causing some applicants to believe that an SBA loan application is a necessary prerequisite to receiving Temporary Housing Assistance. Thus the Court will grant plaintiffs’ requested relief as to this claim … [Pending Applications] With regard to the 84,470 applications still deemed “pending” almost three months after the storm, the Court is keenly aware of the immediate needs of those applicants. The Court is also keenly aware of the admonition of Congress for Courts not to unduly interfere in administrative decisions and procedures. Plaintiffs have requested that the Court order all pending applicants to

216  THE LAW OF EMERGENCIES

be considered presumptively eligible and/or order FEMA to act on these applications on or before January 1, 2006. The Court notes that the method of proceeding with applications does involve an element of discretion on the part of FEMA …The Stafford Act and the regulations pursuant to it are unclear as to when FEMA should be mandated to act on these pending applications. The Court is aware that this catastrophe has stretched everyone’s resources, and both Congress and FEMA have made substantial efforts to increase FEMA’s resources in particular. The Court will not issue an order setting forth a timetable at this point; nor will the Court declare all pending applications as presumptively eligible. However, if requested by plaintiffs, the Court will reexamine the necessity of establishing such a timetable at a later date should FEMA not make extremely substantial progress in processing these pending applications. … [Short-Term Lodging] FEMA’s actions in reference to its subsidy of hotels and motels have been notoriously erratic and numbingly insensitive. Persons who have lost their jobs, their homes, their cars, all their worldly possessions, and in some cases, family members, have been living in hotel rooms for many months. At the hearing, plaintiff Leonora Bartley testified that she is four months pregnant, estranged from her husband, and living in San Antonio, Texas, with her 8-year-old son in a FEMA-paid room at a Motel Six. Hers is one of more than at least 37,000 hotel and motel rooms that FEMA is currently subsidizing. Bartley was a nursing home rehab technician before Katrina struck, and as a result of the storm, was displaced first to Gonzales, Louisiana, and eventually ended up in San Antonio because she had no luck finding a place to live in Gonzales. When asked by the Government whether living in a temporary apartment instead of a motel wouldn’t be better, Bartley said, “Of course. I’d have a stove. I’d have a refrigerator. I wouldn’t be living out of an ice chest.” Ms. Bartley further testified that despite her own diligent efforts, including the use of a FEMA provided 1-800 number, she has been unable to find adequate housing (either public or private) in San Antonio for herself and her son. Ms. Bartley’s story is only one of thousands very similar stories, and these victims have been told by FEMA that they would have to leave their respective hotels or motels on November 30, 2005, then December 15, 2005. They were then told that some would have to leave on December 15, 2005, whereas others would have until January 7, 2006. As of December 9, 2005, the date of the hearing, FEMA provided a letter which in essence stated that in the event an applicant had not received his or her funds by December 15, 2005, the applicant could remain at their hotel or motel. It is unimaginable what anxiety and misery these erratic and bizarre vacillations by FEMA have caused these victims, all of whom, for at least one point in time, had the very real fear of being without shelter for Christmas. When Michael Hirsch, Individual Assistance Branch Chief of FEMA’s Recovery Division, was asked as to the rationale for this termination of benefits, he seemed as bewildered as this Court and basically stated he did not know. It is very evident to the Court that the majority of the persons affected by the January 7, 2006, deadline are the most disadvantaged of our citizens and/or the persons who lost virtually all of their property, economic livelihood, and in some cases, family members as a result of Hurricane Katrina and its aftermath. Congress, in enacting the Stafford Act clearly mandated that “… relief and assistance activities shall be accomplished in an equitable and impartial manner without discrimination on the grounds of … economic status.” The arbitrary January 7, 2006,

Chapter 12 l Stafford Act Assistance for Individuals  217

termination of benefits is directly aimed at those who have virtually no resources, economic or otherwise. Nor is this termination equitable or impartial as mandated by the statute. Many of the persons who already received Temporary Housing Assistance have a place to reside, either in their own home, the homes of friends or relatives, or resources to afford replacement housing. The plaintiffs … did not choose to live in hotel rooms and, by definition, [none] was homeless prior to the hurricane. Clearly the hurricane did not discriminate based on economics, as the wealthy as well as the poor were substantially affected; however those persons with resources and access have generally found alternate housing and are not living in a hotel or motel or shelter. Clearly the economic status of those in the hotels is in general far less than those victims not in hotels. The Government has stated on at least two occasions at the hearing that citizens have come to think of every problem in the United States as a federal problem and that the federal government is responsible for them. While the Court has no empirical evidence of this statement (or that it is true), certainly in this instance, by law and mandate, the federal government is responsible. This refrain by FEMA clearly indicates an insensitivity to their Congressional mandate … Although FEMA made some effort to extend the deadline for all persons to January 7, 2006, this does not resolve the underlying economic discrimination. In the event a victim receives their benefits on January 6, 2006, it would be virtually impossible to find housing in one day. Moreover, according to the testimony of Ms. Bartley, without funds in hand it is impossible to find housing, and even with funds in hand, it will be extraordinarily difficult in some areas. Of course, FEMA could provide a person with a trailer and that would resolve the issue if it could be done in a timely fashion. FEMA has admitted that it cannot process all of the pending applications by January 7, 2006, and FEMA has taken the position that a Court cannot order them to do so. … Although the Court commends FEMA for modifying its position [and delaying the cut-off,] it is simply not enough. … [Relief ] …[1] [D]efendants are hereby temporarily restrained and enjoined from requiring applicants for Temporary Housing Assistance to complete an SBA loan application or apply for an SBA loan as a prerequisite to applying for or receiving temporary housing assistance, or from inquiring into the income of applicants in connection with processing applications for Temporary Housing Assistance, or from mis-communicating the nature of [the Stafford Act requirement] to any Applicant so inquiring. [2] It is further ordered that defendants must notify those applicants who, as a result of any past miscommunication, filled out an unnecessary SBA loan application, or may not have pursued assistance because they were told that an applicant must apply for a SBA loan in order to obtain temporary housing assistance. Defendants must notify applicants and potential applicants that no such requirement exists and that no applications will be held up for Temporary Housing Assistance processing due to an SBA Loan application not being filled out, or being filled out incorrectly, unnecessarily, and/or superfluously. Defendants must publicize the rule that only those applications requesting Other Needs Assistance as defined by the Stafford Act and determined by FEMA will be required to fill out an SBA Loan Application, and in no cases will such a Loan Application be required for Temporary Housing Assistance.

218  THE LAW OF EMERGENCIES

[3] It is also ordered that … defendants are hereby temporarily restrained and enjoined from terminating the Short-Term Lodging Program as to any person in any state earlier than January 7, 2006, even if that person receives Temporary Housing Assistance … or a denial of their Application prior to that time. [4] It is further ordered that the Short-Term Lodging Program shall terminate no later than February 7, 2006, unless ordered by this Court or if FEMA chooses to extend the deadline established by this Court. [5] It is further ordered that every evacuee currently participating in the Short-Term Lodging program shall have two (2) weeks from the time of receiving a determination of their application for Assistance, namely either (a) approval for and receipt of Assistance, or (b) a denial determination, to remain in their present FEMA-subsidized hotel or motel before their participation in the Short-Term Lodging program is terminated …

McWaters v. FEMA II U.S. District Court for the Eastern District of Louisiana, 2006 [Plaintiffs returned to court asserting, among other claims, that FEMA still had failed to provide the Temporary Housing Assistance for which they are eligible.] … FEMA admits that all persons meeting the [statutory] eligibility criteria are entitled to assistance, and all of them will receive it. In fact, most cases are automatically determined eligible or ineligible by the NEMIS computer system, requiring no human intervention or approval, such that eligible applicants essentially “automatically qualify” for assistance and are then automatically paid via either computer generated check or an electronic funds transfer. Furthermore, [FEMA makes no claim that it] has insufficient resources to provide assistance to all eligible applicants… As such the Court finds that the mandatory and nondiscretionary policies and regulations under the Stafford Act which require FEMA to automatically provide assistance to all applicants deemed eligible creates a reasonable expectation of the benefit of federal disaster assistance in these applicants, and this expectation rises to the level of a property interest protectable under the Due Process Clause. … However, despite FEMA's lack of discretion in providing Temporary Housing Assistance, as well as the seemingly interminable delays in provision of such assistance, and despite the fact that a protected interest under the Due Process Clause in receiving such assistance exists in recipients, …[e]vidence adduced throughout the course of this litigation reveals that FEMA was definitely unprepared to quickly and efficiently deal with the multitude of applications for temporary housing assistance stemming from Hurricane Katrina. … [D]espite FEMA's lack of preparation, and regardless of the property interest implicated, having heard all of the evidence presented, the Court must find that the delay faced by FEMA in processing the voluminous number of Katrina-related housing applications was inevitable due to the sheer practicalities of the circumstances wrought by the aftermath of the storm. … FEMA did and is taking action, albeit at a rather excruciatingly slow place. Accordingly, … the Court finds no actionable violation of the constitutional standard applicable to this claim …

Chapter 12 l Stafford Act Assistance for Individuals  219

Critical Thinking The McWaters lawsuit illustrates how courts can come to the aid of those who are treated badly by disaster relief agencies. What other institutional reactions—other than litigation—are possible? Which do you think would be most effective? Why? There was no appeal in McWaters, and thus no higher court reviewed these two decisions. The Fifth Circuit Court of Appeals ruling in a similar case, however, has cast doubt on whether McWaters is still good law. In Ridgley v. FEMA, another group of plaintiffs who had received rental assistance payments after Katrina challenged FEMA’s denial of continuations of that assistance. The trial court issued a preliminary injunction ordering the payments to continue, noting McWaters as precedent. On appeal, FEMA argued that the Stafford Act does not require that payments of rental assistance be offered after a disaster or that payments be made in any specific amounts when assistance is offered. Instead, it contains only a permissive grant of authority to FEMA to provide rental assistance. The Fifth Circuit agreed with FEMA’s argument and reversed the trial court, saying that “[t]here is simply no indication that the regulations constrain FEMA's discretion to the point that it is bound to provide assistance to all eligible individuals.” So long as benefits from a government program are not mandated by statute or regulation, such that a person who satisfies the eligibility criteria is thereby entitled to receive the benefit, the beneficiary cannot be said to have a property interest in the benefit. This ruling in a case involving housing assistance, although with somewhat different facts, may indicate that had McWaters been appealed, the decisions that you read above would have been reversed. (You will learn more about the discretionary function exception to government liability in Chapter 19.) THE ANTI-DISCRIMINATION RULE IN THE STAFFORD ACT As we learned in Chapters 9 and 10, both the Constitution and a range of statutes provide civil rights protections that apply to emergency and relief services. The Stafford Act also contains its own “civil rights” provision prohibiting discrimination in how assistance programs are implemented, which was amended in 2006 to add the two issues upon which we focused in Chapter 10. It now states as follows: (a) The President shall issue, and may alter and amend, such regulations as may be necessary for the guidance of personnel carrying out Federal assistance functions at the site of a major disaster or emergency. Such regulations shall include provisions for insuring that the distribution of supplies, the processing of applications, and other relief and assistance activities shall be accomplished in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status. (b) As a condition of participation in the distribution of assistance or supplies under this chapter or of receiving assistance under this chapter, governmental bodies and other organizations shall be required to comply with regulations relating to nondiscrimination promulgated by the President*** (42 U.S.C. 5151)

Despite this provision, however, individuals have not relied on it as a legal basis to obtain injunctive or monetary remedies. Why might that be the case? Note to whom the statute is directed.

220  THE LAW OF EMERGENCIES

Summary Individual Assistance programs, created by the Stafford Act and administered by FEMA, offer a number of important benefits to survivors of disaster. In post-Katrina litigation, the courts split on whether access to those benefits could be enforced or whether the only recourse for persons denied benefits was an internal appeal process within FEMA. There may be no definitive answer to that question until after the next disaster.

Important Terms Discretionary function Stafford Act and non-Stafford Act assistance

● ●

Review Questions The judge in the McWaters case wrestled with whether and when he should issue orders directing how FEMA should conduct its relief efforts after Hurricane Katrina. The court sought to act as a check and balance against improper government action. What are the pros and cons of a court playing that role?

13 Public Health Law I: Complications of Federalism Introduction This chapter will explain the origins and current operations of public health emergency law, at both the federal and state levels. You will learn how public health law in the United States began as an area entrusted almost entirely to cities and the states. As transportation, and with it the possibility of rapid disease spread, became ever faster and more accessible, the original reliance on local containment mechanisms became outdated. As you will see throughout this chapter, however, public health law in the United States still reflects a strong orientation toward state and local dominance. Consider as you read a hypothetical proposed shortly after September 11 by David Fidler, a law professor at Indiana University. Professor Fidler imagined a scene in which Dr. Evil, who is considering possible targets for a bioterrorist attack, seeks legal advice. Rumpole the Malevolent, his lawyer, advises Dr. Evil that “your ideal legal target for a bioweapon attack is a country that, first of all, has a fragmented legal system, in that relevant legal powers to respond to a public health emergency are divided among actors at the national and local levels. Federalism is, for instance, a fragmented legal system.” Should the United States change its system to one that is more centralized?

State Public Health Law Historian Elizabeth Tandy summarized the experiences of America’s first European settlers in this way: “The colonization of America was a bitter fight with disease and death from the very moment the resolute emigrants set foot on the little vessels which were to carry them on their long voyage.” Although we may tend to think of violence and the risk of starvation as being the most daunting obstacles for John Winthrop, William Penn, and others, infectious diseases were an equally fearsome and constant threat. Winthrop, writing to his wife in 1630, described the high death toll during the first winter in the Plymouth settlement from a disease that “grew out of an ill diet at sea and proved infectious.” Where does the word “quarantine” come from and what does it mean? The practice of quarantine began in 1374 in Venice as a way to protect its residents from the plague that was brought to the city by persons and goods disembarking from commercial ships. Ships arriving at the port from locations known to have suffered outbreaks of the plague were required to sit at anchor for 40 days before landing. The word “quarantine” comes from the Italian phrase “quaranta gironi,” which means 40 days. The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00013-9 © 2018 Elsevier Inc. All rights reserved.

223

224  THE LAW OF EMERGENCIES

As waves of smallpox and yellow fever swept through the settlements, many of the earliest laws enacted by American colonists concerned public health and protection from disease. Boston enacted a municipal ordinance providing legal authority for disease control in 1647; New York City followed suit in 1663. Citizens frequently acted after experiencing a disease outbreak; Philadelphia created the first municipal board of health in the new world after a yellow fever epidemic devastated the city in 1793, killing or causing the dispersal of almost 40 percent of the city’s population. The following case, one of the most important in the history of public health law, arose during an emergency. At the turn of the 20th century, infectious disease was the leading cause of death in the United States. Between 1901 and 1903, a smallpox outbreak in Boston killed 276 people of the almost 1600 who became ill. In 1902, the board of health in Cambridge, a town adjacent to Boston, passed a resolution requiring every resident of the town to be vaccinated for smallpox. One resident, Henning Jacobson, refused, and eventually his case reached the Supreme Court.

What Is Smallpox? Smallpox is a highly contagious viral disease characterized by fever and an eruption of vesicles and pustules, which even today kills five to thirty percent of infected persons. It is spread through close contact when infected persons cough out particles of the virus (variola major) from sores in their mouths and lungs. These particles can be inhaled, but are more commonly picked up as tiny dried droplets in the environment and inadvertently ingested or rubbed into the eyes. The period during which an infected person can spread the infection is about three weeks, from just prior to the appearance of the rash until the last scab disappears. About half of those exposed to the virus develop the infection. There is an incubation period of seven to nineteen days (mean: twelve days) during which the infected person exhibits no symptoms. Once infected, a person always goes on to develop symptoms, but the severity of the cases varies from mild illness to rapid death.

Jacobson v. Commonwealth of Massachusetts United States Supreme Court, 1905 Justice Harlan delivered the opinion of the court. This case involves the validity, under the Constitution of the United States, of certain provisions in the statutes of Massachusetts relating to vaccination. The [statutes] of that commonwealth provide that ‘the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof, and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit $5.’

Chapter 13 l Public Health Law I: Complications of Federalism   225

An exception is made in favor of ‘children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination.’ Proceeding under the above statutes, the board of health of the city of Cambridge, Massachusetts, on the 27th day of February, 1902, adopted the following regulation: ‘Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated.’ The above regulations being in force, … Jacobson, was proceeded against by a criminal complaint … The complaint charged that on the 17th day of July, 1902, the board of health of Cambridge, being of the opinion that it was necessary for the public health and safety, required the vaccination and revaccination of all the inhabitants …, and provided them with the means of free vaccination; and that the defendant … refused and neglected to comply with such requirement. … The authority of the state to enact this statute is to be referred to what is commonly called the police power—a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. … …The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would

226  THE LAW OF EMERGENCIES

soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.” ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law. In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. … [W]hen the regulation in question was adopted smallpox … was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation, … it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, … that the [vaccination order] was arbitrary, and not justified by the necessities of th[is] case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic … might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. … There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government—especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.

Chapter 13 l Public Health Law I: Complications of Federalism   227

The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will; and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one’s body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger. … [T]he defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination, not only in the case of his son, but in the cases of others. … Was defendant exempted from the operation of the statute simply because of his dread of the same evil results experienced by him when a child, and which he had observed in the cases of his son and other children? Could he reasonably claim such an exemption because ‘quite often,’ or ‘occasionally,’ injury had resulted from vaccination, or because it was impossible, in the opinion of some, by any practical test, to determine with absolute certainty whether a particular person could be safely vaccinated? It seems to the court that an affirmative answer to these questions would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers that a system of general vaccination was vital to the safety of all. … [We nonetheless observe] that the police power of a state … may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. … It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not … interfere and protect the health and life of the individual concerned. [W]e are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death. No such case is here presented. It is the cause of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease. We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff.

228  THE LAW OF EMERGENCIES

Critical Thinking Jacobson is the most frequently cited case in American public health law. Moreover, when there is a constitutional challenge to a public health statute, it is often cited by both plaintiff and defendant, even though the Supreme Court upheld the Massachusetts law that Mr. Jacobson refused to obey. What are the principles in Jacobson that would lead both sides in a modern case to cite it? What aspects of the decision, if any, are outdated? Note how the concept of “police power” is interwoven with the theme of localization. The Court ruled that the inherent police power of state governments—a power that the states “did not surrender when becoming a member of the union”—provided authority for the Commonwealth of Massachusetts and the Cambridge Board of Health to require smallpox vaccinations. At least in part, that conceptualization of a state-based plenary power to define the police powers necessary to achieve the common good was founded on the premise that public health was an example of “matters completely within [a state’s] territory and which do not by their necessary operation affect the people of other states.” Today, that degree of localization seems archaic. CASE STUDY—PHILADELPHIA’S LAZARETTO QUARANTINE STATION In 1793, the nation’s capital was still located in Philadelphia. As a result, when a yellow fever epidemic virtually closed the city down that year, killing 10 percent of its population and sickening thousands more, it was a major threat to the young nation and its leaders, as well as a local public health crisis. Six years later, the city’s new board of health had a facility built outside the city, which they named the Lazaretto Quarantine Station. The origin of the word “lazaretto,” like that of “quarantine,” lay in 14th century Italy; “lazaretto” derives from the story of Lazarus, a leper; the word means pest house, or house of quarantine. The function of this lazaretto was the same as those established three centuries earlier: to examine all arriving ships, passengers, and cargo and to house the ill and those exposed to illness who were on board, as well as to disinfect the ship and its cargo. The Lazaretto was positioned downstream of Philadelphia on the Delaware River. From there, a look-out was on watch to spot incoming vessels, which were stopped and inspected by Lazaretto staff, which included a quarantine master and a resident physician. If there were no signs of infection, the required certifications were completed and the ship could proceed to Philadelphia the next day. If any crew or passengers showed signs of illness, however, a much longer process ensued. All those aboard were housed in the Lazaretto hospital until those who had become sick during the voyage either recovered or died. The ship itself was fumigated, scoured, and whitewashed. It took from a week to a month before the ship and its crew and passengers were released to continue their voyage to Philadelphia. In the latter half of the 19th century, the nature of the work at the Lazaretto changed in several ways that were typical of the same changes occurring at all American port cities. Steamboats had replaced sailing vessels as transatlantic transportation, and the faster times of ocean crossings meant that there was often less risk of disease occurring at sea. Steamships also brought much higher levels of passenger traffic and a major jump in immigration to the United States. The number of passengers going through the Lazaretto inspection process jumped from 500 to 4000 in the year after steamship service began in Philadelphia. By 1879, nearly 30,000 people a year were emigrating to Philadelphia. The increase in immigrants vastly increased the burden and cost of operating the Lazaretto, and the following year—1880—the state of Pennsylvania turned the Lazaretto over to federal authorities. The Lazaretto closed in 1895, replaced by a new quarantine facility located farther from Philadelphia, which operated until 1919. Ironically, after federal officials closed the Lazaretto, private investors drawn by its waterfront location transformed the Lazaretto into a resort known as the Orchard Club. Source: www.ushistory.org/laz/history.

Chapter 13 l Public Health Law I: Complications of Federalism   229

The development of public health law in the states is a less than entirely laudable story. Especially before the advent of antibiotics, local citizens were often unnerved by the proximity of quarantine facilities like the Lazaretto or terrified that they were at risk of contracting a dread disease that officials could not prevent or effectively control. In reaction, the public sometimes lashed out. In 1858, the residents of Staten Island, New York (an island across from Manhattan) destroyed a local quarantine facility. The magazine Harper’s Weekly reported that the presence of the hospital had been a growing source of anger to residents who thought that the hospital was “breeding pestilence … and occasioning every year yellow fever panics.” When a state commission failed to order its closure, “the Staten Islanders took matters into their own hands. On Sept 1… a large party, ‘disguised and armed,’ attacked the hospital from two sides, removed the patients, and set the buildings on fire.” Even uglier were the condemnations of groups of people believed to be of particular danger, but whose only real fault lay in being outsiders in a time of panic, and thus ideal scapegoats. Racist and anti-immigrant attitudes combined with the enormous discretionary power accorded to local officials and produced a series of shameful results. And unlike the outburst by the Staten Island mob, these actions were formal and considered, taken by government officials who could deploy the power and legitimacy of the state. In 1892, four cases of typhoid fever were discovered in a tenement house in New York City among passengers who had recently arrived on the ship Massila, which carried a large number of eastern European immigrants. In response, city health officials ordered the quarantine of “every single Russian Jewish passenger” who had been on the ship, as well as the smaller number of Italian immigrants that the ship had carried. In addition, the persons who had been exposed to the Massila passengers after they arrived, mostly their neighbors in crowded ethnic ghettos, were also put under quarantine. They were taken to North Brother Island, in the East River, and kept in the cottages used there for others who were quarantined during this period (including Mary Mallon, known in the press as “Typhoid Mary”). Of the approximately 1200 immigrants who were detained, about 1100 were healthy newcomers to New York who happened to live close to the former Massila passengers who had become ill. As legal historian Felice Batlan described the Massila quarantine: These men, women, and children were detained for twenty-one days after the last case of typhus developed among any of those quarantined. As thousands of immigrants and city residents were detained in quarantine, the death rate among residents began to rise dramatically. Although the Health Department found it perplexing that the death rate from typhus was small for passengers and high among residents, the conditions of quarantine itself may have produced these deaths. The quarantine represented a tremendous mobilization of essentially unchecked municipal power with serious life and death consequences. A few years later, on the west coast, a similar event occurred when cases of bubonic plague appeared in San Francisco among Chinese immigrants. The official reaction was aimed more at the vulnerable Chinese community than at the disease itself. The result was the filing of two lawsuits that established key principles to help curb similar abuses in later public health reactions.

230  THE LAW OF EMERGENCIES

In their first response to the disease, federal and local public health authorities collaborated to use an experimental vaccine for the required inoculation of all Chinese residents in San Francisco. In addition, the Chinese—and no one else—were prohibited from leaving the city without showing proof that they had been vaccinated. Law enforcement officers were stationed at major transportation points to enforce the order, and railroads were forbidden from selling tickets to “Asiatics or other races particularly liable” to bubonic plague unless they had a vaccination certificate. The Chinese Consolidated Benevolent Association filed suit and won a decision in federal court invalidating the orders. The court found that there was no rational basis for requiring only Chinese residents to be inoculated before leaving the city and that the health officials had violated the Equal Protection Clause because the plaintiffs were singled out on account of their race (Wong Wai v. Williamson, 1900). However, the panic continued and local officials again acted in an irrational manner. Faced with a court order prohibiting their first effort, the Board of Health recommended and the Board of Supervisors enacted, a quarantine, which the police department enforced, that applied solely to Chinese residents. The city directed that no one could enter or leave Chinatown, and specified the geographic boundary lines of the neighborhood so that only Chinese residents, and no white residents, were affected. Cordoned off with barbed wire and with food shortages mounting, residents again brought suit to challenge the city’s policy. The result was the Jew Ho v. Williamson decision in Chapter 9. Re-read that opinion now. Again the court found that the public health officials had enforced a policy that was both discriminatory and irrational. In fact, the court noted, the quarantine of an entire community was likely to increase transmission of the disease, because healthy Chinatown residents now lacked a way to distance themselves from neighbors who were ill, since they were all trapped together in one small geographic area. The New York and San Francisco quarantines directed against immigrants were among the most famous examples of disease control efforts that public health officials later came to regret. In part because of this history, in part simply because of the enormous discretionary power that public health agencies have traditionally wielded, today’s health departments have become much more sensitive to the rights of the individuals whose liberty interests are at stake when public panic threatens to subvert policies based on scientific knowledge. While these human rights abuses may seem like they come from a different world, differences such as language can still produce horror stories. In 1998 in Fresno County, California, an elderly non-English-speaking woman with tuberculosis, who apparently did not understand the medical directions she was given, was jailed for 10 months when local officials ignored a law requiring that persons who were detained for treatment of tuberculosis must be housed in a medical facility rather than in a prison (Souvannarath v. Hadden, 2002).

Early Federal Public Health Approaches When the colonies first formed the federal union, there was no national public health law. In a time when traveling any significant distance was rare, infectious disease outbreaks and

Chapter 13 l Public Health Law I: Complications of Federalism   231

epidemics were often localized, to an extent that is difficult to imagine today. Recall that the Supreme Court stated in Jacobson v. Massachusetts that enactment of quarantine and other health laws fell within the “police power” of each state. Before 1796, quarantines were solely the responsibility of state and local governments. Early federal involvement was minor. When Congress first passed a law to address quarantine, in 1796, it simply allowed the national government to assist state governments in the event of disease outbreaks. The origin of independent federal public health authority derives from laws designed to provide care for 18th century merchant seamen, a group who traveled constantly and who often had little access to medical care when they became ill in strange cities. Moreover, their illnesses threatened the mercantile trade that was essential to the economy of the fledging nation. Thus the origins of what is now the U.S. Public Health Service began in 1798, when Congress established a fund to provide treatment for sick and injured merchant seamen. The marine hospital fund, as it was known, was financed by deductions from the sailors’ wages that were then used to build hospitals in port cities. By the end of the Civil War, many of these hospitals had been taken over by either the Union or Confederate armies and only a handful were still operational. The trend to federal control began after the Civil War. In 1870, the Secretary of the Treasury, in whose department the marine hospital fund was administered, initiated a major organizational reform of the system. In the following decade, two critical events happened. First, the Treasury Department realigned the loose network of remaining hospitals into a Marine Hospital Service (MHS), administered centrally, under the direction of the new position of supervising surgeon. The second major event resulted from an 1877 yellow fever epidemic that spread rapidly from New Orleans up the Mississippi River, a signal to the nation that increased mobility made localized control of infectious disease inadequate. Congress reacted by passing the National Quarantine Act of 1878, conferring quarantine authority for the first time on a board of expert physicians, the National Board of Health (NBH), and authorizing the construction of federal quarantine facilities. An intense bureaucratic struggle ensued between the MHS and the NBH. During its short life, the NBH garnered political enemies by aggressively policing signs of new outbreaks, especially yellow fever, and at different times imposed quarantine restrictions on both New Orleans and Memphis. Although the actions may have saved lives, these moves angered local businesses and politicians, which in turn reduced Congressional support for the NBH. The rivalry effectively ended in 1882, when supporters of the MHS successfully shifted budget funds to it and away from the NHB. During this time, the leader of the MHS and the first supervising surgeon was a former Civil War surgeon, John Maynard Woodworth. Woodworth adopted a military model for the physicians in the MHS, who began wearing uniforms and served in the MHS as troops did in the military, subject to deployment to sites where they were needed. This development was formalized in 1889, with the renaming of the MHS physician group as the Commissioned Corps. In 1902, Congress changed the organizational name to the Public Health and Marine Hospital Service. Later renamed as simply the Public Health Service, the agency includes a Commissioned Corps of health care professionals (dentists, nurses, and pharmacists as well

232  THE LAW OF EMERGENCIES

as doctors). The PHS is an agency within the Department of Health and Human Services, and highest ranking member of the Corps is the Surgeon General. In the first half of the 20th century, the Corps was increasingly used for military purposes. It served an important role in the Spanish-American War in 1898, when PHS doctors cared for wounded service members and operated quarantine stations to prevent troops infected with yellow fever from returning to the states from Cuba or Puerto Rico. The 1902 legislation also authorized the President to utilize PHS officers in times of threatened or actual war, and President Woodrow Wilson signed an Executive Order in 1917 that allowed for the PHS to be detailed for use in World War I. A 1943 law went further and authorized the President to convert the PHS into a military service during times of war. The early 20th century also saw the gradual elimination of quarantine facilities operated by the states. The primary motivation was financial. Officials in states where major ports were located wanted to shift the cost of immigration-related health examinations and monitoring to Washington, where there was more expertise and a larger budget. This ended a long period during which state and local politicians rewarded supporters by appointing them as health officers to oversee incoming ships, creating a situation ripe for corruption. Physicians who were disturbed by the incompetence of these appointees also supported federalizing the facilities. By 1921, all of the states had relinquished their role in policing persons and goods coming to the United States from abroad.

COMMITTEE OF DOCTORS URGES NEW YORK STATE TO TURN OVER MARITIME QUARANTINE TO FEDERAL GOVERNMENT Quarantine work is essentially scientific in its nature, and our committee is a unit in feeling that such work cannot be carried on efficiently unless the tenure of office be independent of changes in administration and politics. The United States Public Health Service, by its organization, the character, training, and experience of its personnel and its opportunities for constant communication with all foreign ports, is admirably equipped to administer quarantine in a most efficient manner. … One of the most important reasons for a national control is the absolutely imperative need that the office of Health Officer of a port be taken out of politics. … Under Federal control, there is continuity of service, uniformity of procedure and policy [and] constant supervision over the acts of the health officers … Dr. Charles L. Dana New York Times, January 2, 1916

As the 20th century continued, science revolutionized the field of public health. Advances in bacteriology enabled pharmaceutical and behavorial interventions that substantially reduced the incidence of yellow fever, malaria, cholera, typhoid, diphtheria, and tuberculosis. In 1946, what had been a malaria control project centered in southern states became the Communicable Disease Center, with its headquarters in Atlanta. After several changes to the name, it became the Centers for Disease Control and Prevention, still known as the CDC. Operating as a branch of the PHS, the CDC has the most advanced disease surveillance system in the world.

Chapter 13 l Public Health Law I: Complications of Federalism   233

Federal Public Health Law Today The core of federal public health law is found in the statutes that authorize actions by DHHS, PHS, and CDC. The bedrock question in this field is still how legal authority should be divided between federal and state governments. In reading the statutory sections that follow, ask yourself how Congress has delineated the different roles for federal and state officials in the current era, when the dynamics of a public health crisis have become more complex than those involving the diseases that are now under control. Meanwhile, each state has its own set of public health statutes. The Public Health Service Act United States Code, Title 42 § 243 General grant of authority (a) Enforcement of quarantine regulations; prevention of communicable diseases The Secretary [of the Department of Health and Human Services] is authorized to accept from State and local authorities any assistance in the enforcement of quarantine regulations made pursuant to this chapter which such authorities may be able and willing to provide. The Secretary shall also assist States and their political subdivisions in the prevention and suppression of communicable diseases and with respect to other public health matters … (c) Development of plan to control … (1) The Secretary is authorized to develop [and implement] a plan under which … resources of the Service … may be effectively used to control epidemics of any disease or condition and to meet other health emergencies or problems. … (2) The Secretary may, at the request of the appropriate State or local authority, extend temporary (not in excess of six months) assistance to States or localities in meeting health emergencies of such a nature as to warrant Federal assistance. … § 247d. Public Health Emergencies (a) Emergencies If the Secretary determines, after consultation with such public health officials as may be necessary, that— (1) a disease or disorder presents a public health emergency; or (2) a public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists, the Secretary may take such action as may be appropriate to respond to the public health emergency … Any such determination of a public health emergency terminates upon the Secretary declaring that the emergency no longer exists, or upon the expiration of the 90-day period beginning on the date on which the determination is made by the Secretary, whichever occurs first. Determinations that terminate under the preceding sentence may be renewed by the Secretary … Not later than 48 hours after making a determination under this subsection of a public health emergency (including a renewal), the Secretary shall submit to the Congress written notification of the determination. …

234  THE LAW OF EMERGENCIES

§ 264. Regulations to control communicable diseases (a) Promulgation and enforcement by Surgeon General The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. … (b) Apprehension, detention, or conditional release of individuals Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President … (c) Application of regulations to persons entering from foreign countries Except as provided in subsection (d) of this section, regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession. (d) . (1) Apprehension and examination of persons reasonably believed to be infected Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary. For purposes of this subsection, the term “State” includes, in addition to the several States, only the District of Columbia. (2) For purposes of this subsection, the term “qualifying stage,” with respect to a communicable disease, means that such disease (A) is in a communicable stage; or (B) is in a pre-communicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals. … § 266. Special quarantine powers in time of war To protect the military and naval forces and war workers of the United States, in time of war, against any communicable disease specified in Executive orders …, the Secretary, in consultation with the Surgeon General, is authorized to provide by regulations for the apprehension and examination, in time of war, of any individual reasonably believed (1) to be infected with such disease and (2) to be a probable source of infection to members of the armed forces of the United States or to individuals engaged in the production or transportation of arms, munitions, ships, food, clothing, or other supplies for the armed forces. Such regulations may provide that if upon examination any such individual is found to be so infected, he may be detained for such time and in such manner as may be reasonably necessary. …

Chapter 13 l Public Health Law I: Complications of Federalism   235

§ 270. Quarantine regulations governing … civil aircraft The Surgeon General is authorized to provide by regulations for the application to air navigation and aircraft of any of the provisions of sections 267 to 269 of this title and regulations prescribed thereunder, to such extent and upon such conditions as he deems necessary for the safeguarding of the public health.

Critical Thinking What are the most significant limitations on when the federal health officials can act to stop an infectious disease from spreading? Why doesn’t the statute simply grant all authority to deal with infectious diseases to federal officials? What conditions are necessary for a situation to qualify as a “public health emergency” under the Act? How do the federal public health powers differ once an emergency is declared? Is there any effective limitation on these powers? What about the constitutional rights of persons who might be quarantined? What factors must be present for HHS to have authority to quarantine individuals? One of these factors relates to diseases specified in Executive Orders. Following is the current Executive Order identifying diseases as to which HHS has that power.

Revised List of Quarantinable Communicable Diseases Executive Orders 13295, 13375, and 13674 By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 361(b) of the Public Health Service Act (42 U.S.C. 264(b)), it is hereby ordered as follows: Section 1. Based upon the recommendation of the Secretary of Health and Human Services (the ‘Secretary’), in consultation with the Surgeon General, and for the purpose of specifying certain communicable diseases for regulations providing for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases, the following communicable diseases are hereby specified pursuant to section 361(b) of the Public Health Service Act: (a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named). (b) Severe acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. This subsection does not apply to influenza.

236  THE LAW OF EMERGENCIES

(c) Influenza caused by novel or re-emergent influenza viruses that are causing, or have the potential to cause, a pandemic. Sec. 2. The Secretary, in the Secretary’s discretion, shall determine whether a particular condition constitutes a communicable disease of the type specified in section 1 of this order. Sec. 3. The functions of the President under sections 362 and 364(a) of the Public Health Service Act (42 U.S.C. 265 and 267(a)) are assigned to the Secretary. Sec. 4. This order is not intended to, and does not, create any right or benefit enforceable at law or equity by any party against the United States, its departments, agencies, entities, officers, employees or agents, or any other person. …

Regulations for Travelers Recall that in Chapter 6 we learned that agencies promulgate regulations to fill in the details that are not specified in statutes. The statutory provisions above are relatively short and offer little effective guidance to public health officials. Note that in several sections of the Public Health Service Act above, Congress specifically called on DHHS to develop regulations. As a result, CDC has promulgated extensive regulations, most recently in January 2017. Do these regulations help you identify where the line has been drawn between federal and state public health power?

As used in the federal regulations: Communicable diseases means illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment. ● Communicable stage means the stage during which an infectious agent may be transferred directly or indirectly from an infected. ● Incubation period means the time from the moment of exposure to an infectious agent that causes a communicable disease until signs and symptoms appear in the individual or, if signs and symptoms do not appear, the latest date signs and symptoms could reasonably be expected to appear. ●

Interstate and International Regulations The regulations that spell out the protocols for travelers who may have infectious diseases are divided into two categories: those for travelers moving from state to state and those for persons entering the United States from another country. Most of the processes are the same for both groups. (Note: each category includes both Americans and persons who are citizens of other countries.)

Chapter 13 l Public Health Law I: Complications of Federalism   237

The threshold question is jurisdiction: what is the standard for when federal public health authorities (rather than, or in addition to, state authorities) can become involved. First, the standards set by statute must be satisfied; for this, review the statutory provisions above. Note the important limitation in scope for CDC actions set by § 264(b). The implementing regulations are provided as follows: For domestic travelers moving from state to state: Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary … In addition, CDC may become involved when state or local authorities request their assistance. What important principle of constitutional law does this provision reflect? For persons entering the United States from another country, the CDC is not required to make a determination about the capacity of state public health officials. In general, at airports or other ports of entry or border crossings, the CDC is authorized to take steps to prevent the introduction or spread of communicable diseases within the United States. As a practical matter, the agency uses one of two methods to identify when to detain individuals: CDC is authorized to subject all travelers to noninvasive surveillance, meaning examination of the ear, nose, and throat, as well as temperature screening; and ● CDC is authorized to order a full medical examination of persons who are identified by crewmembers of an incoming flight or other carrier as persons who showed signs during the travel of high fever, persistent cough, intestinal track sickness, loss of consciousness, or other possible symptoms of serious disease (Fig. 13 1). ●

Once an individual or group of persons has been identified as posing a risk of possible transmission, how will the CDC proceed? The regulations provide for the agency to proceed in stages from detention to release. Recall the procedural due process protections discussed in Chapter 9, The Constitution and Individual Rights. In these regulations, CDC has sought to incorporate the essential elements of those protections. As you read the steps below, consider the interrelationship of medical and legal considerations and how the regulations balance the two sets of concerns. Do you agree with how the system is set up? Why or why not?

Many people confuse two commonly used terms: isolation and quarantine. Isolation means the separation and restriction of movement of persons who are known to have a specific infectious illness, during the period when the disease is communicable. ● Quarantine means the separation and restriction of movement of persons are not ill but who have been exposed or are believed to have been exposed to an infectious disease, during the period when it would be communicable. ●

238  THE LAW OF EMERGENCIES

FIGURE 13.1  Map of CDC Quarantine Stations. U.S. Centers for Disease Control and Prevention.

Assuming that the CDC does have authority to act, the regulations set out a series of procedural steps that govern when and how individuals can be subjected to various levels of intervention and how they can seek relief from such orders. As you read the following sections, create your own flow chart of how the process works.

Travel Between States Apprehension and Detention (70 C.F.R. §70.6) For persons traveling between states the regulations provide that the CDC “may authorize the apprehension, medical examination, quarantine, isolation, or conditional release of any individual… based upon a finding that [t]he individual is reasonably believed to be infected with a quarantinable communicable disease in a [communicable or precommunicable] stage and” is either “moving or about to move from a State into another State” or “constitutes a probable source of infection to other individuals who may be moving from a State into another State.”

● ●

Chapter 13 l Public Health Law I: Complications of Federalism   239

“Precommunicable stage” means the time after exposure to the infection while the individual is a carrier of the infection, “but only if the quarantinable communicable disease would be likely to cause a public health emergency if transmitted to other individuals.”

Medical Examination (70 C.F.R. 12) (c)   …[The CDC] may require an individual to provide information and undergo such testing as may be reasonably necessary to diagnose or confirm the presence or extent of infection with a quarantinable communicable disease. (d) Individuals reasonably believed to be infected based on the results of a medical examination may be isolated, or if such results are inconclusive or unavailable, individuals may be quarantined or conditionally released in accordance with this part.

Order of Quarantine, Isolation or Conditional Release (70 C.F.R. 14) a. A Federal order authorizing quarantine, isolation, or conditional release shall be in writing… and contain the following information: 1. The identity of the individual or group subject to the order; 2. The location of the quarantine or isolation or, in the case of conditional release, the entity to whom and means by which the individual shall report for public health supervision; 3. An explanation of the factual basis underlying the [CDC’s] reasonable belief that the individual is in the [communicable or precommunicable] stage of a quarantinable communicable disease; 4. An explanation of the factual basis underlying the [CDC’s] reasonable belief that the individual is moving or about to move from one State into another or constitutes a probable source of infection to others who may be moving from one State into another… b. A Federal order authorizing quarantine, isolation, or conditional release shall be served on the individual no later than 72 hours after the individual has been apprehended, except that the Federal order may be published or posted in a conspicuous location if the Federal order is applicable to a group of individuals and individual service would be impracticable.

Conditional Release and Travel Permits Under the regulations the CDC has the authority to place individuals on “conditional release” if exposure to a quarantinable communicable disease may have occurred but is still latent. During the period the individual may travel, but must be monitored either by checking in with public health officials in person or though electronic means such as email, webcam or wearable tracking devices. Individuals who are placed under quarantine, isolation or conditional release may request a travel permit from the CDC. The CDC may grant such a request conditioned on the observance of precautionary measures appropriate to the disease in question. Individuals whose requests are denied may appeal to the CDC.

240  THE LAW OF EMERGENCIES

Conditions of Confinement or Conditional Release Various portions of the regulation address aspects of the conditions of confinement for persons placed under surveillance. Examples include: Throughout the process the regulations ensure that the CDC will provide translation services if the individual does not speak English or interpretation services if the person is hearing or seeing impaired. ● During the period when an individual is in quarantine or isolation the CDC will arrange for adequate food and water, appropriate accommodation, appropriate medical treatment, and means of communication. ● The CDC may authorize payment for the care and treatment of individuals subject to medical examination, quarantine, isolation, and conditional release. ●

Mandatory Reassessment (70 C.F.R. 15) The CDC has committed through the regulations to reassess within 72 h whether the individual should remain confined or subject to the conditions of release: (b) [The reassessment shall include] review [of ] all records considered in issuing the Federal order, including travel records, records evidencing exposure or infection with a quarantinable communicable disease, as well as any relevant new information. (c) The [CDC—but not the official who issued the order] shall consider and make a determination regarding whether less restrictive alternatives would adequately serve to protect the public health… (d) In the event that the [CDC] orders that the quarantine, isolation, or conditional release be continued or modified, the written Federal order shall explain the process for requesting a medical review under this part… For these first 3 days, however, there is no provision for the individual’s confinement or restrictions to be reevaluated. See 70 C.F.R. 16 (b) below.

Medical Review (70 C.F.R. 16) The process for detaining and testing persons traveling interstate who may have been infected with a quarantinable communicable disease presents an excellent example of when medical and legal questions intersect. If the individual being detained objects, regulations provide for medical review. How are legal concepts incorporated into this process? a. The [CDC] shall, as soon as practicable, arrange for a medical review upon a request by an individual under Federal quarantine, isolation, or conditional release. b. A request for a medical review may only occur after the …mandatory reassessment… c. The medical review shall be for the purpose of ascertaining whether the [CDC] has a reasonable belief that the individual is infected with a quarantinable communicable disease in a [communicable or precommunicable] stage…

Chapter 13 l Public Health Law I: Complications of Federalism   241

d. The individual under Federal quarantine, isolation, or conditional release may authorize an advocate (e.g., an attorney, family member, or physician) at his or her own expense to submit medical or other evidence and, in the medical reviewer’s discretion, be allowed to present a reasonable number of medical experts. The [CDC] shall appoint representatives at government expense to assist the individual for purposes of the medical review upon a request and certification, under penalty of perjury, by that individual that he or she is indigent. e. Prior to the convening of the review the individual or his/her authorized advocate or representatives shall be provided a reasonable opportunity to examine the available medical and other records involved in the medical review that pertain to that individual… f. As part of the review, and where applicable, the medical reviewer shall consider and accept into the record evidence concerning whether less restrictive alternatives would adequately serve to protect public health. g. The medical review shall be conducted by telephone, audio, or video conference, or through other means that the medical reviewer determines in his/her discretion are practicable for allowing the individual under quarantine, isolation, or conditional release to participate in the medical review. h. At the conclusion of the review the medical reviewer shall, based upon his or her review of the facts and other evidence made available during the medical review, issue a written report to the Director (excluding the CDC official who issued the quarantine, isolation, or conditional release order) concerning whether, in the medical reviewer’s professional judgment, the Federal quarantine, isolation, or conditional release should be rescinded, continued, or modified. The written report shall include a determination regarding whether less restrictive alternatives would adequately serve to protect public health. The written report shall be served on the individual and the individual’s authorized advocate or representatives. i. The [CDC—but not the official who issued the order] shall, as soon as practicable, review the written report and any objections that may be submitted by the individual or the individual’s authorized advocate or representatives that contest the findings and recommendation contained in the medical reviewer’s written report. Upon conclusion of the review the [CDC—but not the official who issued the order] shall promptly issue a written Federal order directing that the quarantine, isolation, or conditional release be continued, modified, or rescinded. In the event that the [CDC—but not the official who issued the order] continues or modifies the Federal quarantine, isolation, or conditional release, the … written order shall include a statement that the individual may request that the CDC rescind the Federal quarantine, isolation, or conditional release, but based only on a showing of significant, new or changed facts or medical evidence that raise a genuine issue as to whether the individual should continue to be subject to Federal quarantine, isolation, or conditional release. The written Federal order shall be promptly served on the individual and the individual’s authorized advocate or representatives, except that the Federal order may be served by publication or by posting in a conspicuous location if applicable to a group of individuals and individual service would be impracticable…

242  THE LAW OF EMERGENCIES

Penalties (70 C.F.R. 18) The regulations structure the penalties according to whether harm occurs as a result of the individual’s actions: If no death results as a result of the individual’s violation of an order, the person is subject to a fine of $100,000 or up to a year in jail or both; ● If a death does result because of the individual’s violation of an order, the person is subject to a fine of $250,000 or up to a year in jail or both. ●

There are steeper penalties for organizations, presumably carriers such as airlines that are required to report instances of illness during transit. If no death occurs, the fine is $200,000; if a death does occur, the fine is $500,000.

Judicial Review The regulations do not provide for any judicial review of CDC actions. Instead they contain the statement that “Nothing in this section shall affect the constitutional or statutory rights of individuals to obtain judicial review of their Federal detention.” Recall from Chapter 9, The Constitution and Individual Rights, that anyone being detained by governmental authority may seek a writ of habeas corpus, which is the type of review to which this provision refers. Is this adequate protection for someone under an order of quarantine, isolation, or conditional release? A number of public health law experts objected to this provision when the proposed regulations were published for public commentary. (See Chapter 6, Federal Agencies, for a description of how the Administrative Procedures Act works.) However, the CDC declined to change what became the final language. How else might the agency have dealt with the question of judicial review? What are the advantages and disadvantages of the differing approaches?

Travel to the United States from Another Country Apprehension and Detention (71 C.F.R. §32(a)) For persons entering the United States the regulations provide that Whenever the [CDC] has reason to believe that any arriving person is infected with or has been exposed to any of the communicable diseases listed in an Executive Order, [CDC] may isolate, quarantine, or place the person under surveillance and may order disinfection … to prevent the introduction, transmission, or spread of the listed communicable diseases.

Other Phases of the Process The rules for persons entering the United States are the same as those for persons traveling between states for the following phases: Medical examinations (71 C.F.R. 36) Order of Quarantine, Isolation or Conditional Release (71 C.F.R. 37)

Chapter 13 l Public Health Law I: Complications of Federalism   243

Conditions of Confinement or Conditional Release (various) Mandatory Reassessment (71 C.F.R. 38) Medical Review (71 C.F.R. 39) Penalties (70 C.F.R. 18) Judicial Review (various)

Do Not Board List In addition to enforcing the quarantine laws, CDC also maintains the “Do Not Board” list system created in 2015. The initial identification of an individual who might transmit a communicable disease in the course of travel may come from state and local public health authorities, foreign governments and international health agencies, or CDC’s own records. The following provisions apply to both interstate and international travelers. If an individual satisfies the first criteria below and any of the three other criteria, then he/ she may qualify to be placed on the list: 1. The individual is known or reasonably believed to be infectious or reasonably believed to have been exposed to a communicable disease and may become infectious with a communicable disease that would be a public health threat should the individual be permitted to board a commercial aircraft or travel in a manner that would expose the public; and 2. the individual is not aware of his or her diagnosis, has been advised regarding the diagnosis and is noncompliant with public health requests, or has shown potential for noncompliance, or is unable to be located; or 3. the individual is at risk of traveling on a commercial flight or of traveling internationally by any means; or 4. the individual’s placement on the DNB is necessary to effectively respond to outbreaks of communicable disease or other conditions of public health concern. For example, an individual’s placement on the DNB may be considered when necessary to aid in the application of controlled movement or in the execution of a federal, state, or local quarantine, isolation, or conditional release order. Once an individual’s name goes onto the DNB list, airlines are instructed not to issue a boarding pass to that person. An individual’s name will be removed from the list upon submission to CDC of medical documentation that there is no longer a risk of infection, or the period of time during which the disease could be communicable has expired. The process for seeking removal of one’s name is by written submission to CDC headquarters.

Summary Public health law has been a site for debates over constitutional issues and political principles since at least the Supreme Court’s decision in Jacobson v. Massachusetts. Today, one most often

244  THE LAW OF EMERGENCIES

looks to statutes and regulations—rather than case law—to trace policy development in this field.

Important Terms Centers for Disease Control and Prevention Isolation ● Public health emergency ● Quarantinable communicable disease ● Quarantine ● Surgeon General of the United States ● ●

Review Questions 1. We began the chapter by posing the question of whether the federal-state divided nature of public health legal authorities might prove problematic in an emergency. What is your view as we finish the chapter? 2. What pragmatic reasons might a public health official have for wanting to build protections of individual liberty into the law? 3. Given that traditional public health powers include isolation and quarantine, do you think that a formal emergency powers law is necessary? Why or why not?

14 Public Health Law II: Contemporary Threats Introduction In this chapter, we will explore how the legal system is responding to the biggest public health threats of the moment. “Of the moment” may be the key phrase here. We have seen in the previous chapter how disease became associated in the public mind with threats from “outsiders,” which led to medically unwarranted quarantines in the 19th and early 20th centuries. After those fears subsided and the Great Influenza Epidemic of 1918 ran its course, the field of public health settled into a sleepy backwater of the law, and the strategy for suppression of disease came to depend more on scientific discoveries such as penicillin and the polio vaccine. Public health issues re-entered public debate during the 1980s and 1990s when the nation responded to the new disease of HIV/AIDS, which led many states to update old public health codes that had not been changed for decades. Ultimately, law proved less important in fighting the disease than the combination of breakthrough drugs and the engagement of patient communities in education campaigns to stop the spread of the disease. The twenty-first century, however, has ushered in a profoundly new moment: a break with the past that has propelled public health into the forefront of national security concerns. The events that have produced this change were the (still unsolved) anthrax attacks in the fall of 2001, the SARS epidemic of 2003, the swine flu outbreak of 2009, and the Ebola outbreak of 2014–2015. In sum, two major public health threats loom: the possibility of another bioterrorist attack and the natural emergence of new infectious diseases for which there may be no effective treatment. We will trace how the law has developed in response. First came a concerted effort to generate a new statutory creation: the public health emergency law, as an add-on to the preexisting public health codes of the sort we examined in the last chapter. Later, as new natural diseases emerged and the memory of the anthrax attacks somewhat faded, legal responses tended to focus on travel restrictions and new uses for public health powers. The story of the current era of public health law is one of reactivity, with changes in law following each new incident of bioterrorism or outbreak. In the same way that generals can be criticized for “fighting the last war,” public health officials can be faulted for responses that were more retrospective than visionary. To follow these sequential legal changes, this chapter will tell a chronological story centered in the recent past, beginning with the public health response to the 2001 anthrax attacks. (For analysis of workplace-centered responses and legal consequences, see Chapter 15.) Then we will explore the legal issues associated with the scary combination of international travel and lethal pathogens. The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00014-0 © 2018 Elsevier Inc. All rights reserved.

245

246  THE LAW OF EMERGENCIES

Emergency Health Powers Laws In the wake of the 2001 anthrax attack and the generally heightened fear of terrorist activity after September 11, the U.S. Centers for Disease Control and Prevention (CDC) asked the Center for Law and the Public’s Health based at Georgetown University Law Center and Johns Hopkins University to develop a new legal framework to address such situations. The result was a Model State Emergency Health Powers Act (MSEHPA) that has been adopted in whole or in part by more than 30 states. The philosophy behind the MSEHPA is that existing public health laws would be inadequate if there were a widespread emergency today. According to one of the authors of MSEHPA, the massive efforts needed to respond to a public health emergency “are possible only through enhanced, expedited powers and access to vast resources. Emergency statutes and regulations are designed to provide such power and resources” (Hodge, 2008). Because state and local agencies continue to play a central role in public health policy and are usually the first responders, the model law was intentionally designed as one for state legislatures, rather than Congress, to adopt.

Definitions of Bioterrorism There are multiple definitions of bioterrorism, either from government agencies such as the CDC or found in federal and state laws. They generally include some or all of the following factors: The intentional use or threat of use of any biological agent to cause harm in a human, animal, plant, or other living organism ● The same use or threat of use to degrade the quality of food, air, or the water supply ● With the goal of influencing government conduct or policy ● With the goal of intimidating or coercing a civilian population. ●

The Most Feared Pathogens The CDC has identified the six most dangerous pathogens that could be used in a bioterrorist attack (see Table 14-1). Table 14-2 lists events throughout history that involved biological weaponry and bioterrorism.

The Anthrax Attacks of 2001 …[O]n 4 October 2001, health officials in Florida announced that Robert Stevens, a tabloid photo editor at American Media, Inc. (AMI), had been diagnosed with pulmonary anthrax—the first such case in the United States in almost 25 years. Initially, the patient’s condition was attributed to a natural source. However, after two of the victim’s

Chapter 14 l Public Health Law II: Contemporary Threats   247

Table 14-1  The Six Most Dangerous Pathogens Name

Description

Symptoms

Treatment

Anthrax (excluding cutaneous) Smallpox

Transmission by inhaling; kills 85% of those infected often within 1–3 days Physical contact with infected fluids or objects or inhalation of droplets; fatal in 30% of unvaccinated patients Airborne; almost 100% fatality rate if untreated

Fever and fatigue; progresses to chest pain, cough, rapid decline Fever, aches, vomiting; rash develops into pustules

Antibiotics (cipro) before symptoms appear; vaccine not widely available No treatment, but vaccine within 4 days after exposure may mitigate

Pneumonic plague

Fever, headache, bloody cough; progresses to respiratory failure and death Viral Viruses spread by mosquitoes, Some variance include fever, hemorrhagic rodents, and ticks; Ebola death aches, exhaustion, internal fevers rate up to 90%, Dengue rate 1% bleeding Botulism Transmission by inhaling, could be Toxin blocks nerve signals and aerosolized; too few cases to muscle movement; paralysis; know fatality rate inability to swallow Tularemia Inhaling or contact with Fever, headaches, chills, contaminated substances; could infection of eyes, skin, be aerosolized; overall mortality mucosal tissue low but untreated severe cases from 30–60% fatalities

Antibiotics within 48 hours of exposure Antiviral treatments vary for the specific form Ventilator; antitoxin given quickly may stop progression Antibiotics usually successful in naturally occurring cases

Source: CDC, Gostin, 2003.

Table 14-2  Select Historical Events Involving Biological Weapons and Bioterrorism 38.0°C]). Other symptoms may include headache, an overall feeling of discomfort, and body aches. Some people also have mild respiratory symptoms at the outset. About 10 percent to 20 percent of patients have diarrhea. After 2 to 7 days, SARS patients may develop a dry cough. Most patients develop pneumonia. The main way that SARS seems to spread is by close person-to-person contact. The virus that causes SARS is thought to be transmitted most readily by respiratory droplets (droplet spread) produced when an infected person coughs or sneezes. Droplet spread can happen when droplets from the cough or sneeze of an infected person are propelled a short distance (generally up to 3 feet) through the air and deposited on the mucous membranes of the mouth, nose, or eyes of persons who are nearby. The virus also can spread when a person touches a surface or object contaminated with infectious droplets and then touches his or her mouth, nose, or eye(s). In addition, it is possible that the SARS virus might spread more broadly through the air (airborne spread) or by other ways that are not now known. In the context of SARS, close contact means having cared for or lived with someone with SARS or having direct contact with respiratory secretions or body fluids of a patient with SARS. Examples of close contact include kissing or hugging, sharing eating or drinking utensils, talking to someone within 3 feet, and touching someone directly. Close contact does not include activities like walking by a person or briefly sitting across a waiting room or office.

The SARS Outbreak of 2003: Timeline 2002—November 16: First known case of SARS is discovered in Guangdong province, China. 2003—February 11: The Chinese Ministry of Health reports that there have been 300 cases including five deaths in Guangdong province from an “acute respiratory syndrome” that is consistent with atypical pneumonia. March 11: Hong Kong health officials report an outbreak of an “acute respiratory syndrome” among hospital workers. There are also reports of a severe form of pneumonia among staff at a hospital in Hanoi. March 15: The World Health Organization (WHO) confirms that there is a new “worldwide health threat” and that possible cases have been identified in Canada, Indonesia, Philippines, Singapore, Thailand, and Vietnam. The WHO issues guidelines warning travelers to South East Asia about the dangers of SARS. March 19: The UK, Spain, Germany, and Slovenia report cases. March 27: WHO recommends screening departing travelers from the worst affected areas.

Chapter 14 l Public Health Law II: Contemporary Threats   259

March 30: Based on a sharp increase in cases in an apartment complex, the Hong Kong Department of Health issues an isolation order requiring residents of one 35-story building in the complex to remain in their apartments for 10 days. These persons are subsequently moved to rural isolation camps. April 2: WHO recommends postponement of all nonessential travel to Hong Kong and the Guangdong province of China. April 5: China issues an apology for its slow response to the SARS outbreak. The press reports allegations that Chinese officials covered up the true extent of the disease. April 9: First SARS case reported in Africa. April 14: Canadian scientists announce that they have sequenced the genome of the SARS virus. April 16: The WHO announces that a new pathogen, a member of the coronavirus family never before seen in humans, is the cause of SARS. April 17: First SARS case confirmed in India. April 23: WHO recommends postponement of nonessential travel to Toronto. Beijing closes all schools for two weeks. April 26: Health ministers from 13 Asian countries call for all international travelers to be screened for SARS. April 27: Beijing closes all entertainment venues, including movie theaters, cafes, and clubs. May 5: Chinese authorities quarantine 10,000 people in Nanjing. May 15: China threatens to impose the death penalty or life imprisonment on anyone who breaks quarantine orders. May 22: Taiwan reports 65 new cases in one day. More than 150 doctors and nurses have left hospital jobs because of fear of contracting SARS, shutting down or cutting services at nine hospitals. June 13: The WHO withdraws travel warnings for four Chinese provinces, but maintains the warning for Beijing. June 17: WHO lifts its travel warning for Taiwan. Singapore and Vietnam have also been declared SARS-free, after 20 consecutive days without new cases. June 24: Hong Kong and Beijing are removed from the WHO’s list of infected areas. July 2: WHO declares that Toronto is SARS-free. July 5: Taiwan is the last country to be removed from the WHO’s list of infected areas. September 2003–May 2004: New cases of SARS are reported in Singapore, Taiwan, and China, but there is little spread of the disease. July 2004: The director of China’s main disease control agency and the Hong Kong Health Secretary resign after criticism that they failed to adequately report and contain the initial outbreak.

Critical Thinking How did anthrax and SARS present different legal and management problems for public health officers? What were the best and worst actions taken in each case? What are the bases for your characterizations?

260  THE LAW OF EMERGENCIES

Rationing Medications Should an outbreak occur of a highly infectious pathogen—whether it is intentionally caused as part of a bioterrorist attack or a naturally occurring phenomenon such as SARS—there will be great urgency surrounding the issue of distribution of medications or vaccines. Scientists anticipate that if a new strain of influenza takes hold in humans, it will take several months to develop and produce a drug that can counteract it. For anthrax or smallpox, there are pharmaceutical countermeasures available, but the initially available quantities may be inadequate. States have developed plans to coordinate with federal public health authorities to disseminate “push packs” of existing drugs from the Strategic National Stockpile (SNS) managed by the CDC. The SNS is a national repository of antibiotics, chemical antidotes, antitoxins, lifesupport medications, IV administration, airway maintenance supplies, and medical/surgical items. Push packs contain pharmaceuticals, antidotes, and medical supplies designed to provide rapid delivery of medical resources in the early hours of a public health emergency. Push packs are stored in strategically located, secure warehouses, and can be delivered within 12 hours after a state’s request. It is then up to state and local health officials to distribute them in the affected areas. If the cause of the disease is quickly identified and there are known medications, the SNS program will arrange shipping of pharmaceutical products specific to that disease. If there are not enough medications or vaccine available to protect an entire population, enormous ethical and legal questions arise. University of Virginia bioethicist John Arras has summarized the problem as follows: [T]he ethical challenges posed by a possible pandemic … are nearly as formidable as the scientific and public health challenges. Assuming a high degree of mortality associated with the viral strain, a genuine pandemic would claim millions of lives worldwide and threaten the integrity of key medical, public health, social and political infrastructures. … In the absence of social consensus on priorities, adhering to fair processes becomes critical for the public legitimation of rationing scare life-saving resources … [T]he rational principles we develop must remain vigilant against the ever-present temptation to discriminate against the poor and dispossessed, whether here at home or in the far reaches of the developing world. The Ethics Subcommittee of the Advisory Committee to the Director of the CDC prepared a set of ethical guidelines geared to a likely shortage of medications in the event of pandemic influenza. For the allocation of resources, they recommended the following analysis to the CDC. We have concluded that a classic utilitarian approach to defining priorities, “the greatest good for the greatest number,” is not a morally adequate platform for pandemic influenza planning. We recommend an approach to ethical justification, that, like utilitarianism, evaluates the rightness or wrongness of actions or policies primarily by their consequences,

Chapter 14 l Public Health Law II: Contemporary Threats   261

but, we further recommend that planning should take into account other checks … grounded in the ethical principles of respect for persons, non-maleficence, and justice. For example, a classic utilitarian approach, which might accept imposing suffering on the few for the greater benefit of all, would be tempered by such principles as: ● Refrain from harming or injuring individuals or communities ● Equal opportunity to access resources should be assured to those within agreed upon priority groups ● Respect for individual autonomy by, for example, employment of the least restrictive interventions that are likely to be effective. Distribution plans should also specify: ● What scarce goods are involved in the distribution plan? ● Who (or what agency) will decide about prioritization and distribution? A mechanism for authoritative interpretations of the rules in the case of a dispute or an appeal is needed. ● Who is eligible to be a recipient? [e.g., visitors to the local community or only residents?] ● What morally relevant criteria will be employed to assign higher or lower priorities to groups of individuals or individuals within the determined goal (preserving the functioning of society)? For example, are certain key services more essential than others? Within the organization or group of individuals who provide an essential service, are there justified criteria for determining further order of priority (e.g., those with more years of experience or those who have dealt with crises in the past)? … …[I]n planning for a pandemic where the primary objective is to preserve the function of society, it is necessary to identify certain individuals and groups of persons as “key” to the preservation of society and to accord to them a high priority for the distribution of certain goods such as vaccines and anti-viral drugs. …Care must be taken to avoid extension of the evaluation of social worth to other attributes that are not morally relevant….

Critical Thinking Would a first-come, first-served approach be consistent with these ethical guidelines? The CDC prepared a guide to rationing vaccines during a pandemic influenza outbreak (see Table 14-4). What do you think are the risks of breaching or omitting the ethical principles set out above if this order is followed? Would you change any of the CDC’s priority rankings? If so, on what ethical or legal basis?

Contemporary Mass Quarantine Traditionally isolation and quarantine orders have been issued to individuals or, in some cases, to relatively small groups of people (e.g., passengers on a particular ship or flight). Should a pandemic level of transmission be reached, however, public health officials would

262  THE LAW OF EMERGENCIES

Table 14-4  The CDC’s Guide to Rationing Vaccines During a Pandemic Priority Rank Group to Receive Vaccine

Approximate Number in Group

1-A

9 million

1-B 1-C 1-D 2-A 2-B 3 4

Persons involved in manufacturing and distributing vaccines and antiviral medications; health care workers Persons with multiple influenza high-risk conditions or history of hospitalization for pneumonia or influenza Pregnant women and household contacts of infants and of persons who cannot be vaccinated for medical reasons Essential public health emergency response workers and key government leaders Infants to age 2, adults up to 65 with a single high-risk condition, healthy adults 65 and older Remainder of public health emergency responders and essential workers in public safety, utilities, transportation, and telecommunications Other key government health officials and funeral home workers Remainder of population

26 million 10.7 million 200,000 59 million 8.5 million 200,000 179 million

Source: http://www.hhs.gov.

not be able to catch up by identifying and trying to trace transmission on a case-by-case basis. On the other hand, complete enforcement of a mass quarantine order would probably overtax the capacity of local law enforcement. One lesson that public health agencies learned during the 2003 SARS outbreak was that a menu of large-scale quarantine strategies could be effective. Governments were able to implement a number of social distancing mechanisms, such as cancellation of public events, closure of shopping malls and some public transportation, and other “snow day” measures. Persons who had been exposed to SARS but were not ill were asked to adhere to “home quarantine.” Officials also developed the concept of “working quarantine,” in which providers of essential services are permitted to work but must observe activity restrictions while off-duty. When schools, workplaces and transportation facilities were not closed, infection control measures included fever screening before entry or the requirement of wearing face masks. One result of these measures was that realization that quarantine did not have to be mandatory in order to be effective. Voluntary compliance with social distancing measures was greater than 90 percent in most settings (HHS Pandemic Influenza Plan, 2005). However, the financial, social, and psychological impact of such policies was substantial. Moreover, their success required a high degree of cooperation involving not only government officials but also employers, media, and various service providers. (See Chapter  8 for more discussion of the role of the private sector.) Fig. 14-2 defines the principles of modern quarantine.

Critical Thinking When a person is incarcerated, including being placed in a quarantine facility, the government assumes responsibility for providing food, medication, and other necessaries for so long as the incarceration lasts. Would that apply to persons in “home quarantine”? What would the criteria be? If the government does have that duty, how would it be fulfilled?

Chapter 14 l Public Health Law II: Contemporary Threats   263

FIGURE 14-2  Principles of modern quarantine.

Travel Restrictions The rapid transcontinental spread of SARS in 2003 eliminated any doubt that international travel would likely be a major vector of transmission for infectious disease in the future. Some have even speculated that bioterrorists might release a lethal pathogen in airports around the world, making the points of origin extremely difficult to trace and enhancing the odds for rapid dissemination of disease. If one of the characteristics of the disease is that persons who are infected but asymptomatic can transmit the infection, health officials will face major challenges in curbing its spread. During the 2003 global response to SARS, the control strategy for the United States included issuing travel notifications, distributing … alert notices to travelers arriving from areas with SARS, and conducting visual inspections of arriving travelers…CDC staff met more than 11,000 direct and indirect flights from SARS-affected areas and distributed more than 2.7 million travel health alert notices to arriving passengers as well as to persons arriving at 13 U.S. land border crossings near Toronto and departing passengers bound for the United States from the Toronto airport… …CDC quarantine staff [also] met planes reporting an ill passenger… If the ill passenger was determined to be a possible SARS case, the locating information was forward to state and local health departments for contact tracing. Border and travel-related activities implemented in countries more seriously affected by SARS included pre-departure temperature and symptom screening, arrival

264  THE LAW OF EMERGENCIES

screening, “stop lists” … of persons who were possible SARS cases or contacts…, quarantine of travelers returning from other SARS-affected areas. (HHS Pandemic Influenza Plan, 2005)

Based on its experiences with SARS, CDC developed a new set of four levels of advisories to issue to travelers: In the news—Notification of an occurrence of a disease of public health significance affecting a geographic area, but no increased risk of disease exposure if standard guidelines are followed. Outbreak notice—Notification that a disease outbreak is occurring in a limited geographic area or setting, creating an increased risk for disease exposure but one that is limited to specific settings. Travel health precaution—Notification that a disease outbreak of significant scope is occurring in a large geographic area and identifying specific precautions that travelers should take. Travel health warning—Notification that a widespread outbreak is expanding outside the area or populations that were initially affected, including the recommendation that nonessential travel be canceled. (HHS Pandemic Flu Plan, 2005)

Critical Thinking Note that none of the CDC alert levels forbid people from traveling. How effective do you think this advisory approach will be in curbing travel? Can you think of other legal measures that might be used as well?

Ebola In March 2014, the world learned of an Ebola outbreak that ultimately centered in the West African nations of Liberia, Sierra Leone, and Guinea. Ebola (Ebola Virus Disease or EVD) is rare and deadly. For persons who are not treated, the mortality rate can reach 80 percent. The 2014–2015 outbreak was the worst recorded to date. It occurred in a part of the world that lacked sufficient supplies of both the equipment needed to protect persons against infection and the medicines necessary to treat those who had been infected. To their credit, thousands of health care workers volunteered to help fight the disease. When those from the United States returned home, however, they often found themselves subject to panic-driven legal responses that were medically unjustified. EVD spreads by direct contact (through broken skin or mucous membranes) with the bodily fluids—such as blood, urine, stool, semen, or sweat—of a person who is infectious. Those persons who contract the virus become infectious only after they exhibit symptoms, typically consisting of fever, severe headaches, vomiting, diarrhea, extreme weakness, bleeding, or muscle pain. In West Africa, the disease spread rapidly when individuals who lacked basic

Chapter 14 l Public Health Law II: Contemporary Threats   265

protective supplies or even knowledge about the disease cared for or participated in burial rites for family members and friends. The key to proper public health policy is knowing the science behind transmission. Only individuals who have already exhibited symptoms can infect others with the Ebola virus. The risk of transmission is greatest from those in the advanced stages of the disease, when the viral load is highest. Conversely, even someone who has become infected does not pose a risk of transmission until or unless they become symptomatic. The period between infection and symptoms is called the incubation period; for EVD, the maximum incubation time is 21 days. Thus, for someone who has been exposed to the virus and is not symptomatic, it is not possible to know whether an infection has occurred until 21 days after the last possible exposure. And they, in turn, pose a risk to others during those 21 days only after they exhibit symptoms and only if the people around them come into direct contact with their bodily fluids. The legal and public health response to EVD in the United States became a contest between science and fear as the driving forces for legal interventions. At many points, fear won. The CDC’s actions appeared never to get in front of the curve of public opinion, and the agency changed key aspects of its guidelines more than once. State officials from both parties and around the country imposed quarantine orders that went beyond the degree of restriction in even the most stringent policies recommended by the CDC. At federal and state levels, health officials acknowledged that some of their actions were not justified by medicine or science, but were attempts to reassure the public and quell the panic.

First Responses On March 23, 2014, Guinea reported the EVD outbreak to the World Health Organization (WHO). As the disease rapidly spread in West Africa, governments and NGOs around the world began to provide assistance and also to develop plans for preventing its spread in their own regions and countries. The CDC led the response on behalf of the United States. On July 28, it announced that two American health care workers volunteering in Liberia had been diagnosed with EVD and were being treated. The recommendations portion of the announcement stated: EVD poses little risk to the U.S. general population at this time. However, U.S. healthcare workers are advised to be alert for signs and symptoms of EVD in patients with compatible illness who have a recent (within 21 days) travel history to countries where the outbreak is occurring, and should consider isolation of those patients meeting these criteria, pending diagnostic testing. On July 31, CDC elaborated on this advice by characterizing arriving asymptomatic travelers from the affected countries in three groups. Those who had not provided health care to Ebola patients were counseled to self-monitor for symptoms for 21 days after their return. Persons who had worked in a facility or laboratory where Ebola was being treated were advised to engage in active monitoring, i.e., reporting their temperatures and any symptoms to local

266  THE LAW OF EMERGENCIES

health authorities for 21 days after their return. For those who had provided direct patient care, CDC recommended direct active monitoring, i.e., twice daily reporting with in-person observation by a health department staffer at least once a day. The next day CDC issued a diagnostic protocol to be followed by health care providers in the United States.

Guidelines for Evaluation of US Patients Suspected of Having Ebola Virus Disease CDC, August 1, 2014 ...CDC recommends testing for all persons with onset of fever within 21 days of having a highrisk exposure. A high-risk exposure includes any of the following: percutaneous or mucous membrane exposure or direct skin contact with body fluids of a person with a confirmed or suspected case of EVD without appropriate personal protective equipment (PPE), ● laboratory processing of body fluids of suspected or confirmed EVD cases without appropriate PPE or standard biosafety precautions, or ● participation in funeral rites or other direct exposure to human remains in the geographic area where the outbreak is occurring without appropriate PPE. ●

For persons with a high-risk exposure but without a fever, testing is recommended only if there are other compatible clinical symptoms present and blood work findings are abnormal or unknown. ...Testing is recommended for persons with a low-risk exposure who develop fever with other symptoms and have unknown or abnormal blood work findings. Persons with a low-risk exposure and with fever and abnormal blood work findings in absence of other symptoms are also recommended for testing. Asymptomatic persons with high- or low-risk exposures should be monitored daily for fever and symptoms for 21 days from the last known exposure and evaluated medically at the first indication of illness. Persons with no known exposures listed above but who have fever with other symptoms and abnormal blood work within 21 days of visiting EVD-affected countries should be considered for testing if no other diagnosis is found. Testing may be indicated in the same patients if fever is present with other symptoms and blood work is abnormal or unknown. Consultation with local and state health departments is recommended....

Ebola Reaches the United States On September 30, the CDC confirmed the first Ebola diagnosis in the United States linked to the West African outbreak. Thomas Eric Duncan, a Liberian man who traveled to Dallas to visit family unaware that he had been infected with EVD, sought care at Texas Health Presbyterian Hospital, where he was treated for flu-like infection and released. After a resurgence of symptoms, he was returned by ambulance to the hospital, where he was placed in isolation and treated. Tests confirmed the EVD diagnosis.

Chapter 14 l Public Health Law II: Contemporary Threats   267

Duncan died of the disease on October 8. On the same day, the CDC announced that persons traveling from countries with reported EVD cases would be screened upon arrival at five airports where most flights from those countries landed: Kennedy Airport in New York City, Newark Liberty International Airport, Atlanta-Hartsfield, O’Hare Airport in Chicago, and Dulles Airport outside Washington, DC. The screening was to consist of a measure of the individual’s temperature, observation by CDC staff for signs of Ebola symptoms, and an interview. On October 11 and 15, respectively, Nina Pham and Amber Vinson, two staff nurses at Texas Presbyterian who cared for Duncan in the later stages of his illness were diagnosed as EVD-infected. Before learning of her test result, Ms. Vinson had flown round trip from Dallas to Cleveland on October 10 and 14. The CDC and officials in multiple states tracked down the other passengers on her flights and the persons with whom she had contact in Ohio, in order to counsel them and monitor their health status. Both nurses were transferred to hospitals more experienced in treating infectious disease (Emory in Atlanta and the National Institutes of Health), where they were treated and eventually released after testing negative for the virus. None of the passengers on the Cleveland flights or Ms. Vinson’s contacts in Cleveland ever exhibited symptoms or tested positive. Media reporting intensified in mid to late October, as members of Congress and state and local officials called for a ban on travelers arriving in the United States from any country where EVD had been reported. Two cases came to dominate the news.

The Infected Doctor and the Uninfected Nurse On October 17, Dr. Craig Spencer, who had volunteered in Guinea and treated EVD patients there, returned to his home in New York City and self-monitored for symptoms by measuring his temperature each day. On October 23, he discovered that he had a fever and was admitted to Bellevue Hospital. CDC confirmed an EVD diagnosis on October 24. (Dr. Spencer recovered and was discharged from Bellevue on November 11.) Calling CDC’s guidance inadequate, Governors Chris Christie of New Jersey and Andrew Cuomo of New York issued their own “additional screening protocols” on October 22: Each State Department of Health at JFK and Newark Liberty International Airports will, as permitted under applicable law, make its own determination as to hospitalization, quarantine, and other public health interventions for up to 21 days. There will also be a mandatory quarantine for any individual who had direct contact with an individual infected with the Ebola virus while in one of the three West African nations (Liberia, Sierra Leone, or Guinea), including any medical personnel having performed medical services to individuals infected with the Ebola virus. Additionally, all individuals with travel history to the affected regions of West Africa, with no direct contact with an infected person, will be actively monitored by public health officials and, if necessary, quarantined, depending on the facts and circumstances of their particular situation.

268  THE LAW OF EMERGENCIES

In the afternoon of October 24, Kaci Hickox, a nurse who had volunteered to treat Ebola patients in Sierra Leone, returned to the United States on a flight landing at Newark Airport. She was taken immediately to the CDC Quarantine Station located in the airport, where she was interviewed and her temperature taken. Based on her normal temperature and absence of other symptoms, the CDC cleared her for release. New Jersey, however, acted under its own laws to impose quarantine. Hickox was held for three days, first in the airport and then in an isolation room at a nearby hospital, before being driven back to her home in Maine under police escort.

CDC Changes Its Recommendations In response to demands for more restrictive measures, the CDC altered both its screening procedures for travelers from the affected countries and its official guidance for state and local health officials. The following October 22 announcement concerned airline passengers, whose flights were now being diverted to the five airports equipped for screening:

The Centers for Disease Control and Prevention (CDC) announced that public health authorities will begin active post-arrival monitoring of travelers whose travel originates in Liberia, Sierra Leone, or Guinea. ...Active post-arrival monitoring means that travelers without febrile illness or symptoms consistent with Ebola will be followed up daily by state and local health departments for 21 days from the date of their departure from West Africa.... Active post-arrival monitoring is an approach in which state and local health officials maintain daily contact with all travelers from the three affected countries for the entire 21 days following their last possible date of exposure to Ebola virus. Twenty-one days is the longest time it can take from the time a person is infected with Ebola until that person has symptoms of Ebola. Specifically, state and local authorities will require travelers to report the following information daily: their temperature and the presence or absence of other Ebola symptoms such as headache, joint and muscle aches, weakness, diarrhea, vomiting, stomach pain, lack of appetite, or abnormal bleeding; and their intent to travel in-state or out-of-state. In the event a traveler does not report in, state or local public health officials will take immediate steps to locate the individual to ensure that active monitoring continues on a daily basis. In addition, travelers will receive a CARE (Check And Report Ebola) kit at the airport that contains instructions, a thermometer, guidance for how to monitor with thermometer, and information about whom to contact with questions. Active monitoring establishes daily contact between public health officials and travelers from the affected region. In the event a traveler begins to show symptoms, public health officials will implement an isolation and evaluation plan following appropriate protocols to limit exposure, and direct the individual to a local hospital that has been trained to receive potential Ebola patients....

Chapter 14 l Public Health Law II: Contemporary Threats   269

On October 27, the CDC issued a revised version of “Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus” that reiterated the criteria set forth in the October 22 announcement. An earlier version of the “Guidance for Monitoring and Movement of Persons” issued in August had recommended self-monitoring for most asymptomatic persons who had been exposed to Ebola, with voluntary limits on interaction with others for asymptomatic persons who had higher risk exposures, consistent with the August 1 Guidelines for Patients above. With its October 22 and 27 statements, CDC’s guidance shifted responsibility for monitoring travelers and other potentially exposed people to public health authorities, rather than relying on individuals to monitor themselves. It also established a higher standard of monitoring for health care workers returning from Africa, with its recommendation for direct active monitoring that included daily direct observation by public health officials. In an explanation for the changes posted on its website, CDC acknowledged that it was responding in part to “stakeholder concerns” and demands for banning the entry of travelers from the affected countries and prohibiting normal local movement by exposed but asymptomatic persons.

Federalism, for Better and Worse As we saw in the prior chapter, American public health law retains its structure of allocating primary legal control to state and local authorities. Federal law authorizes intervention when there is interstate or international travel and risk of transmission, as there certainly was with Ebola, but it is effectively a one-way ratchet. Federal health officials can act when a state has not or cannot impose more stringent restrictions, but it cannot force state authorities to adopt less intrusive measures. During the Ebola outbreak of 2014-2015, CDC was heavily criticized for ineffective responses and for losing the public’s trust. States in which the Governor imposed harsher controls of asymptomatic persons returning from the affected countries than those recommended by CDC included, in addition to New Jersey and New York, Connecticut, Florida, Georgia, Illinois, Minnesota, and Virginia. CDC conducted its own inventory of state policies (Fig. 14-3). By contrast, a Maine state court judge ruled on October 31 that state health officials lacked sufficient evidence to justify an order restricting Kaci Hickox’s freedom of movement in the community where she lived. Ms. Hickox was cooperating with a direct active monitoring protocol and remained asymptomatic until the end of her 21-day incubation period. In 2015, Ms. Hickox sued New Jersey state officials, alleging that they knowingly violated her rights in detaining her and imposing isolation and quarantine after the CDC screeners had cleared her for release. As this book goes to press, there has been no final resolution of the case. On March 29, 2016, the WHO terminated its Public Health Emergency of International Concern status for the Ebola outbreak. As of that date, four persons in the United States had been diagnosed with EDV: Mr. Duncan, Dr. Spencer, and the two nurses who treated Mr. Duncan. Mr. Duncan was the only reported fatality.

270  THE LAW OF EMERGENCIES

FIGURE 14-3  Ebola screening and monitoring policies for asymptomatic individuals.

Summary In 2015, Bill Gates told a reporter: “If anything kills over 10 million people in the next few decades, it’s most likely to be a highly infectious virus rather than a war.” The United States has coped with more serious outbreaks of deadly diseases since 2001 than it did for many years prior to that time. The first, anthrax, was a still unsolved act of bioterrorism. SARS, swine flu, and Ebola Virus Disease had natural causes. In responding to each, the laws and policies utilized by public health officials have evolved.

Important Terms Anthrax Bioterrorism ● Ebola Virus Disease ● Emerging infectious disease ● Push packs ● Re-emerging infectious disease ● ●

Chapter 14 l Public Health Law II: Contemporary Threats   271

SARS Social distancing ● Strategic National Stockpile ● Utilitarianism ● ●

Review Questions 1. From a legal perspective, what is the difference between bioterrorism and emerging infectious diseases? 2. What lessons did public health officials learn from the anthrax attacks? From SARS? Ebola? 3. Imagine an infectious virus that causes serious medical harm is spread by casual contact (i.e., through the air) and enters the United States when an infected international traveler arrives. Map out the steps that federal and state public health authorities should consider.

15 Hospitals and Workplaces in Health Emergencies Introduction When we think of public health emergency law, we tend to concentrate on the legal authority given to government agencies to take steps to curb disease transmission. Indeed, that has been our focus in the two prior chapters. In this chapter, we examine some of the ways in which a public health emergency could impact large private institutions, and ways in which actions within the private sector could make the difference between success and failure for health interventions. You will learn about the particular challenges that hospitals will face in responding to mass emergency conditions, how the law has created a duty for employers to provide a safe workplace, and how multiple aspects of employment benefits law could become an essential factor if a long-term quarantine is in effect.

The Economic Dimensions of Emergencies Although concern over loss of life and illness naturally takes precedence in an emergency, the economic consequences can also be severe. During the SARS outbreak, for example, which was relatively short and limited in scope, economists estimated that Hong Kong’s gross domestic product dropped by more than 1.5 percent. In Singapore, SARS led to a 75 percent decline in visitors, a 50 percent fall in hotel occupancy, and a severe drop in the stock market (Williams, 2007). The economic cost of the September 11 attacks was estimated at more than $80 billion (Segal and Hearne, 2005); likewise, the overall economic impact of Hurricane Katrina also topped $80 billion (Feinberg, 2006). At the level of the individual company or enterprise, the numbers are smaller but the dislocation can be just as devastating. SARS caused one manager to acknowledge that while the company had continuity of operations plans for natural disasters and terrorist attacks, “we have never faced, or even seriously contemplated, the challenge of our own business being affected by an infectious disease” (Maiello, 2003). The impact on the private sector of public health emergencies could be extraordinary: Halting commercial transactions and the movement of goods to and from quarantine areas will have significant economic effects that may be profound and long term and reach well beyond the quarantine area. Much modern business practice relies on just-intime supply chains. Shortages of food, fuel, medicines and medical supplies, essential personnel, and social services (sanitation) should be anticipated, and provisions must be in The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00015-2 © 2018 Elsevier Inc. All rights reserved.

273

274  THE LAW OF EMERGENCIES

place to deal with such issues. Post quarantine stigmatization of the geographic location and of the population quarantined should be anticipated. (Barbera, 2001)

Some entire workplaces—especially schools, theaters, and other public facilities—will be closed in order to interrupt transmission of a communicable disease. Thousands of people would be abruptly unable to work. In addition, the closure of schools would force many parents to stay home to care for children. Even institutions such as hospitals, whose mission is to provide services in a time of emergency, will face new and unfamiliar legal issues and demands.

SARS IN TORONTO By far, the part of Toronto most severely compromised by SARS was its health care system. Because the first reported SARS patient in the area presented no history of contact with pneumonia (his mother, just back from Hong Kong, had died from undiagnosed pneumonia the week before), hospitals did not recognize right away that this was SARS. Thus, they placed infected individuals in double rooms, exposing other patients, their families, care providers, and other frontline workers to the virus. By the end of the epidemic, nearly half of the reported cases were among the health care workers; three of them died. Even though all hospital procedures were reengineered within 72 hours once it became clear we were dealing with SARS, surveillance and infection control were still inadequate. Beyond shortcomings in treating SARS itself, the burden on the health care system caused delays in testing for and treating other illnesses. Patients had to postpone or skip essential treatments such as chemotherapy and radiation. Family doctors and specialists were overwhelmed. I visited a physician who had a sign on his door telling patients to go to the nearest emergency room if they had a dry cough or fever. To avoid risk of infection, many people refused dental work, and many dentists refused patients. (Cooper, 2006)

Emergency Rooms in an Emergency Virtually every hospital in the United States derives part of its income from two federal programs: Medicare, which insures every American 65 or older, and Medicaid, which insures Americans who cannot afford private health insurance. As a condition of receiving those funds, hospitals with emergency rooms incur certain obligations. A federal law known as EMTALA (the Emergency Medical Treatment and Active Labor Act) requires them to provide two basic services. First, they must screen every patient who comes to the ER to determine if they are experiencing a medical emergency. Second, if the patient has an emergency condition, the ER must either admit them to that hospital or stabilize their medical condition before transferring them to another hospital (42 U.S. Code § 1395dd).

Chapter 15 l Hospitals and Workplaces in Health Emergencies  275

If a hospital emergency room is filled to capacity, the hospital can go on “diversion status,” which means that ambulances are directed to transport patients to the next nearest hospital. However, until the anthrax attacks during the fall of 2001, the U.S. Department of Health and Human Services (HHS), which enforces EMTALA, had never contemplated the possible impact of a community-wide public health emergency on the normal obligations of hospital ERs. After 2001, a series of statutory and regulatory changes altered EMTALA to establish new protocols that will apply if there is a formal declaration of emergency. As a result, both the screening and the stabilization duties have been somewhat altered. As to screening, the Secretary of HHS may waive the normal EMTALA screening requirement, and allow for “the direction or relocation of an individual to receive medical screening in an alternate location pursuant to appropriate State emergency preparedness plan” (Project Bioshield Act of 2004). The Department also issued guidelines stating that, in the event of a declared emergency, if state or local governments have implemented community response plans designating certain facilities to handle particular categories of patients, then other hospitals in the area may transfer patients in those categories to a designated facility without risking a violation of EMTALA (DHHS, 2004). In addition to the standard screening and stabilization requirements, there are also medical privacy rules that have been altered for times when a declared emergency is in effect. For example, HHS issued guidelines during the aftermath of Hurricane Katrina that made it easier for hospitals to share otherwise nondisclosable patient information, when disclosure was necessary to identify, locate, and notify family members or otherwise assist in searches for persons who had been displaced by the storm. The changes to normal practices included the following: The requirement to obtain the patient’s permission to speak with family members or friends was waived. ● The requirement to allow patients to opt out of the hospital’s publicly available information listing the names of patients and their general condition was waived. ●

Another important qualification to the general rules protecting the privacy of medical records is that disaster relief organizations, such as the American Red Cross, are not bound by the privacy requirements because they are not themselves medical care providers. Thus, hospitals are free to share patient information with the Red Cross without obtaining the patient’s consent, if complying with the consent process would interfere with the organization’s ability to respond to the emergency.

Critical Thinking Many of these special rules allowing hospitals to operate differently during a declared emergency reflect a judgment that the ideal procedures may have to be compromised in a time of confusion. But the trade-offs generally come at the expense of protections for patients. Should standards for medical care vary by circumstance?

276  THE LAW OF EMERGENCIES

Workplace Safety One legal issue that would affect some employers during an emergency concerns the safety of the workplace itself. From the perspective of the hospital staff, for example, a critical question would be whether they could be required to continue to work under unsafe conditions. The same issue could arise for workers in any critical infrastructure industry—such as communications or policing—in which continued functioning would be essential to the emergency response effort, but where the workplace itself had been contaminated or otherwise rendered unsafe. Several laws apply to this question. The broadest one is a provision of the Occupational Safety and Health Act (OSHA) that applies to all employers. The so-called “general duty clause” states that “[e]ach employer … shall furnish … a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.” (29 U.S. Code § 654(a)(1)). In interpreting this standard, courts ask whether a “reasonably prudent employer” through the exercise of due diligence would have realized what was necessary to avert a hazard (Fairfield v. Occupational Safety & Health Review Commission, 2002). An employer who was aware of the danger can be found liable based on the current state of knowledge in the field and what the employer should have known (New York State Elec. & Gas Corp. v. Secretary of Labor, 1996). Courts have also assessed whether measures existed that the employer could have taken which were feasible and likely to have been effective in preventing the danger (Safeway Inc. v. Occupational Safety & Health Review Commission, 2004). OSHA also requires that all employers with more than 10 workers adopt written emergency action plans that include procedures for evacuation or sheltering in place and the identification of which employees would be responsible for critical tasks during an emergency (29 C.F.R. § 1920.38). The plans must address all “emergencies that the employer may reasonably expect in the workplace.” In addition to the OSHA requirement, the Federal Labor-Management Relations Act (LMRA) protects unionized employees from having to work in “abnormally dangerous conditions” and provides that a good faith refusal to work in such conditions shall not constitute an illegal strike (29 U.S. Code § 143). Courts have developed several formulations of the criteria that must be met for a workplace to be considered abnormally dangerous. Most focus on whether there is objective evidence that an employee’s working conditions “might reasonably be considered ‘abnormally dangerous’” in the particular circumstance (Leroy, 2004).

Postal Workers and the Anthrax Attacks In fall 2001, there was a great deal of confusion as public health and law enforcement officials responded to the packets of anthrax sent through the mail. Because mail was the delivery method used by the perpetrator, postal workers were put at significant risk, and two died. Both of the following cases concern the safety of Postal Service employees. In the first, the court is faced with the question of assessing whether there is a continuing health or safety risk; and in the second, the issue is whether the actions by workplace managers were so unconscionable that damages are owed to the affected workers.

Chapter 15 l Hospitals and Workplaces in Health Emergencies  277

Miami Area Local, American Postal Workers Union v. U.S. Postal Service U.S. District Court for the Southern District of Florida, 2001 … In October of 2001, the United States struggled through the first widely-known bio-terrorist attack of the twenty-first century as law enforcement officers, scientists, postal workers, and ordinary citizens confronted a scourge of anthrax spores traced to letters apparently sent through the mail. On October 5, 2001, medical authorities confirmed that Bob Stevens, an employee of American Media, Inc. [“AMI”], in Boca Raton, Florida, died after inhaling anthrax spores. Medical authorities later confirmed a second case of inhalation anthrax at AMI in Boca Raton, which was successfully treated. Throughout the month, law enforcement officers found anthraxtainted correspondence on Capitol Hill and at numerous media outlets, and discovered anthrax linked to confirmed anthrax cases at the West Trenton post office and Hamilton Township mail center in New Jersey, the Brentwood mail center in the District of Columbia, and the mail center at the State Department headquarters. The Centers for Disease Control and Prevention [“CDC”] in Atlanta, Georgia, confirmed that there were sixteen cases of anthrax (and four anthrax-attributed deaths) in October. Anthrax felled two postal workers. To date, investigators have found traces of anthrax spores at six postal facilities in the Postal Service’s Central District of Florida. All of these facilities have been decontaminated. No facilities in the Postal Service’s Southern District have tested positive for anthrax, and no Florida postal workers have tested positive for exposure to anthrax. Although limited in scope, these unpredictable and grave attacks set the nation on edge. [The Miami Local filed a grievance pursuant to the union’s contract with the U.S.P.S seeking protective equipment, testing and other measures. A number of issues were resolved.] [T]he only issues remaining before this Court are: (1) whether Miami Local is entitled to an Order, contrary to national policy, permitting window clerks to wear face masks when serving customers at the window pending arbitration; and (2) whether the Court may order arbitration on an expedited basis. … Based upon the testimony and exhibits the parties presented, the Court finds that …[t]he Postal Service has followed the CDC’s advice on the proper medical and preventative response to the anthrax threat. Moreover, the national APWU and USPS have agreed to close and decontaminate postal facilities where anthrax is found. In facilities where no trace of anthrax is found, the Postal Service has begun to issue protective equipment, including respirators and gloves; and environmental testing is being pursued aggressively. … Although the CDC has made certain interim recommendations for protecting postal workers from exposure to anthrax, the CDC has not recommended that window clerks wear masks while serving customers at the window. It is reasonable for the USPS to rely on the recommendations of the CDC regarding the appropriate response to the anthrax threat because it is the accepted medical authority. Pursuant to existing national policy, window clerks may not wear masks while working at the window. If a window clerk is uncomfortable working at the window without a mask, the Postal Service will accommodate that person, and ensure that the employee is provided with work elsewhere in the facility where masks are permitted. Although the evidence is unclear, it appears that 20 percent of the 300 postal window clerks remain concerned about their health because they are not permitted to wear protective face masks while serving customers at the window. …

278  THE LAW OF EMERGENCIES

[The Miami Local is seeking an injunction, which is a court order that would immediately compel the Postal Service to allow window clerks to wear facemasks until the issue can be arbitrated through the normal channels for union grievances. The union also wants the court to order that the arbitration be scheduled immediately. The law sets a high standard for obtaining an immediate injunction. The party seeking it must establish that there is a real threat of irreparable injury if the injunction is not granted.] Miami Local’s claim of irreparable injury is twofold. First, it claims that the postal workers will suffer irreparable injury from the fear and stress that flows from not being permitted to wear masks at the window. Second, it claims that without arbitration on an expedited basis, the arbitration process will be a nullity. As to its first claim, while it is true that there are window clerks who suffer from heightened levels of fear and stress because they are not permitted to wear masks while working at the window, the record is devoid of any evidence that their fear is based on an actual threat, or that any postal worker in Florida has suffered actual and imminent harm as a result of anthrax exposure. The CDC, the accepted medical authority, has indicated that there is no evidence at present that postal window clerks face an actual and imminent, or even an appreciable risk of contracting anthrax while servicing customers at the window. Therefore, the Court finds that this first claim of injury alleged by Miami Local is both remote and speculative. As to its second claim, given the speed at which all of the other issues raised in Miami Local’s grievance have been resolved at the national level, the Court must conclude that it is more likely than not that the Postal Service and the national APWU will address the remaining face mask issue in the same expeditious manner. Therefore, the Court finds that Miami Local has failed to establish irreparable injury as to both of its claims. … The public has a substantial interest in having matters of national scope and importance dealt with on a national level. It is precisely in times such as these that the Postal Service must utilize its limited resources in an efficient and effective manner. To force the Postal Service to address issues of national scope on a piecemeal and ad hoc basis would hamper the unitary leadership and efficient use of resources that is required. Therefore, the Court finds that Miami Local has failed to establish that the threatened injury outweighs the threatened harm an injunction may impose on the defendants …

Briscoe v. Potter U.S. District Court for the District of Columbia, 2004 … On Tuesday, October 9, 2001, an unknown person(s) mailed from Trenton, New Jersey, an anthrax-laden letter addressed to United States Senator Tom Daschle at his office in Washington, DC. That letter arrived in a mail bag at Brentwood on or about Thursday, October 11, 2001. The mail bag was opened and its contents were separated into the Delivery Bar Code Sorter (“DBCS”) machine # 17; the Daschle letter was fed manually into DBCS # 17 at approximately 7:10 a.m. The letter was then moved to the Government Mail section for delivery to the Hart Senate Office Building, where Senator Daschle’s office is located. Between approximately 8:00 a.m. and 9:40 a.m., DBCS # 17 was opened in the normal course of operations and a large blower using compressed air was used to blow debris and dust from the conveyor belts and optical reading heads of the machine.

Chapter 15 l Hospitals and Workplaces in Health Emergencies  279

Source: http://www.fbi.gov/pressrel/pressrel01/102301.htm

The Daschle letter was delivered to the Hart Senate Office Building at approximately noon on Friday, October 12, 2001. It was opened in the Senator’s personal office the following Monday, October 15, 2001. The envelope contained a fine white powder, which aroused suspicion. The Capitol Police were called and they performed a field test on the letter, which was ultimately found to contain anthrax spores. Subsequently, the ventilation system in the Hart Senate Office Building was shut down and the building was closed; bundles of letters and packages were quarantined and all mail delivery was suspended; staffers in Senator Daschle’s office were tested and given antibiotics; and tours of the Capitol were canceled. In contrast, the Brentwood facility continued to operate as usual. During a regularlyscheduled “floor” meeting on Monday, October 15, 2001, Larry Littlejohn, a Brentwood maintenance technician, asked his supervisor for a briefing on anthrax and proper safety procedures. The supervisor refused to provide the requested briefing, threatened Mr. Littlejohn with a seven-day suspension, and had him forcibly expelled from the building. … On Tuesday, October 16, 2001, all Senate employees were tested for anthrax exposure and given antibiotics as a countermeasure. The tests apparently “showed that at least twenty (20) Senate staffers had been exposed to anthrax, including staffers on a floor below Senator Daschle’s office and at least one staffer who had not been at work when the letter was opened the previous day. On that same day, [an Army general] stated that the anthrax spores in the Daschle letter constituted “a very potent form of anthrax that was clearly produced by someone who knew what he was doing.” The Federal Bureau of Investigation (“FBI”) reported to the USPS Inspection Service which, in turn, notified [Postmaster General John] Potter that the letter had contained a “potent” strain of anthrax. Despite these developments, USPS officials allegedly instructed Brentwood supervisors “to provide false safety briefings … representing to the employees that there was no evidence any anthrax contaminated letter or mail had come through the facility at any time, including the letter that was sent to Senator Daschle’s office.” Plaintiff Ossie Alston, a supervisor at Brentwood, asserts that he refused to deliver this message …

280  THE LAW OF EMERGENCIES

On Wednesday, October 17, 2001, the United States House of Representatives was shut down after it appeared that thirty-one (31) staff members had tested positive for exposure to anthrax. Anthrax spores were found in a mail room at the Dirksen Senate Office Building, through which the letter to Senator Daschle had passed … USPS ordered that the Brentwood facility be tested for anthrax spores on that day, as well, although no one advised employees of any possible danger. On Thursday, October 18, 2001, all buildings on Capitol Hill were closed and quarantined. USPS officials, including Brentwood Plant Manager Timothy Haney and USPS Senior Vice President Deborah Willhite, met that morning with Senate representatives. According to notes kept by Mr. Haney, he privately advised Ms. Willhite that “the mail was leaking and that we were affected.” During that same morning, USPS was notified that the Centers for Disease Control (“CDC”) had confirmed that a letter carrier in New Jersey, where the Daschle letter had been mailed, was suffering from cutaneous anthrax. However, during a morning press conference at the White House, Postmaster General Potter assured the public that the mail was safe. In the early afternoon, the Postmaster General held a second press conference in an unused section of Brentwood, where he again told the news media and employees in attendance that Brentwood was safe. When Plaintiff Vincent Gagnon attempted to ask a question at the press conference, a Postal Inspector prevented him from doing so. Mr. Gagnon—who had clocked out to attend the press conference—then returned to work, where his supervisor informed him that “she had been directed [by Plant Manager Haney] to initiate proceedings to fire him for going to the press conference and trying to ask questions.” Plant Manager Haney held a series of “floor” meetings with Brentwood employees on Thursday, October 18, 2001, to inform them that there was no anthrax in the building. He also mentioned that the CDC would be conducting tests in protective gear (i.e., “moonsuits”). … Mr. Haney apparently told employees that they would lose their jobs if they did not report for work, noting that “it would cost the USPS $500,000 a day if the Brentwood facility were shut down.” At another “floor” meeting, Mr. Haney allegedly refused to answer questions about why the machines and the building were being tested but employees were not. Also on Thursday, October 18, 2002, USPS contacted the Fairfax County (Virginia) HAZMAT Team to have an on-site field test for anthrax spores conducted at Brentwood. Two HAZMAT Team members and inspectors from a private consulting firm came to Brentwood in moonsuits that afternoon, to begin testing for contamination while postal employees continued their normal duties. At least by sometime that evening, the test results apparently showed that some of the Brentwood equipment “[a]gain … tested hot.” Testing continued until 2:30 a.m. on October 19, 2001. Notes from Plant Manager Haney indicate that, by 11 a.m. on Friday, October 19, 2001, USPS officials had determined that the DSBC # 17 had been used to sort the mail that included the letter to Senator Daschle. The CDC arrived at Brentwood that afternoon and began its analysis. In the meantime, USPS officials asked the District of Columbia Department of Health to place all Brentwood employees on antibiotics for exposure to anthrax. On that same day, Mr. Potter told a television interviewer that early reports of testing showed no anthrax contamination at Brentwood; this same information was posted on all employee bulletin boards at the Brentwood facility. Similarly, Mr. Haney held another series of “floor” meetings to assure employees that Brentwood was safe and that he was doing everything in his power to protect them.

Chapter 15 l Hospitals and Workplaces in Health Emergencies  281

Despite Messrs. Potter’s and Haney’s representations, rumors began to circulate throughout Brentwood on Friday afternoon that DBCS # 17 was contaminated with anthrax spores. [Supervisors gave conflicting information about the safety of DBCS # 17.] One supervisor allegedly advised Mr. Alston that gloves and masks were available for employee use, but that he should not pass them out to employees unless they specifically asked for them. At some point on Friday, October 19, 2001, DBCS # 17 was taken off-line. At approximately 11:30 p.m. on Friday, October 19, 2001, a Brentwood manager “insisted that [DCBS # 17] was not contaminated and ordered [technicians] to clean DCBS # 17 by ‘blowing it out’ with compressed air and to get it on-line immediately.” Brentwood employees reportedly heard managers state that they needed DBCS # 17 on-line because another DBCS machine had broken down. As a result, DBCS # 17 was re-activated. Also on Friday, October 19, 2001, Brentwood employee Leroy Richmond entered the emergency room at Fairfax Inova Hospital with symptoms of inhalation anthrax. Doctors determined from blood tests that Mr. Richmond was suffering from inhalation anthrax. Mr. Richmond’s wife called Plant Manager Haney and left a voicemail message describing her husband’s condition and telling Mr. Haney to shut down Brentwood. During an early-morning meeting with the Mayor’s Office of Emergency Response on Saturday, October 20, 2001, it is alleged that USPS officials—including Mr. Haney—discussed Mr. Richmond’s illness, and “confirmation that the facility tested positive; and that more testing was on the way.” Nonetheless, Mr. Haney conducted “floor” meetings at Brentwood throughout the day on Saturday and allegedly told employees, “We have made it this far and we do not have any positive test results for anthrax.” … At 4:39 a.m. on Sunday, October 21, 2001, Brentwood employee Thomas Morris, Jr., called 911 complaining of anthrax-like symptoms. Mr. Morris died of inhalation anthrax several hours later. At approximately 11:00 a.m. on Sunday, a CDC representative told Plant Manager Haney that Brentwood needed to be closed. Mr. Haney then ordered all employees to gather at noon in the cafeteria, where he told them that a postal worker was in the hospital with a confirmed case of anthrax exposure and that Brentwood was being closed as a “precautionary measure.” The employees in attendance were directed to go to a … government facility, for medical evaluation and treatment. …[A] group of eight to ten workers was directed to report to a manager’s office [rather than being allowed to attend the cafeteria meeting]. They were told that they were needed to “round up all of the mail at Brentwood and move it to the loading dock/platform so that it could be loaded onto trucks” and removed from the building. … Plaintiff Jeffrey Butler … worked until 5:00 p.m. and then, upon driving out of the parking lot, received a flyer that was being distributed to incoming workers. Only upon receiving the flyer did Mr. Butler learn that Brentwood was closed and the postal workers were being directed [elsewhere] for medical evaluation and treatment. Plaintiff Vincent Gagnon continued to work inside Brentwood until approximately 7:00 p.m. to turn off fans and air and dust-handling equipment. Brentwood was finally closed at approximately 7:00 p.m. on Sunday, October 21, 2001, although truckers continued to handle the mail that had been in Brentwood and was being moved for processing to other facilities. On Monday, October 22, 2001, Brentwood employee Joseph Curseen went to the hospital with flu-like symptoms. Mr. Curseen died that evening of inhalation anthrax. Two other Brentwood employees were hospitalized and nine became ill with anthrax-like symptoms.

282  THE LAW OF EMERGENCIES

It was the next day—October 23—when the postal workers in Miami filed their grievance.

…[O]ne of the mid-level managers allegedly [stated] that the mid-level managers had been instructed by senior management to lie to the floor supervisors and employees about Brentwood being contaminated with anthrax. When the complaint [in this case] was filed in October of 2003, Brentwood was still closed due to anthrax contamination. It has now reopened. … … Plaintiffs assert: once Defendants affirmatively acted to provide Plaintiffs with information regarding the safety of the Brentwood facility and whether the facility was contaminated with anthrax, they had a constitutional duty, under the well-established State/Government Endangerment Theory, not to enhance or make Plaintiffs more vulnerable to the danger of anthrax contamination (a) by lying to them and misleading them with information Defendants knew to be false, and (b) by preventing Plaintiffs from learning of their exposure to anthrax and preventing them from getting medical treatment. …[W]hether Defendants can be held liable under the theory of State Endangerment requires a two-part analysis, which raises the following questions: (1) has there been an affirmative act by Defendants to create or increase the danger that resulted in harm to Plaintiffs and, if so, (2) does that act shock the conscience? … Defendants argue that Plaintiffs have failed to allege that Defendants acted affirmatively to create or enhance a dangerous situation. They contend that Plaintiffs’ substantive due-process claim is based on Defendants’ inaction… Defendants are correct that in light of [earlier case law], their mere failure to warn Plaintiffs about a danger of anthrax contamination does not expose them to constitutional liability. [Other laws would apply.] However, Plaintiffs’ allegations are not premised upon the notion that Defendants violated their rights solely by failing to warn them of a known risk or to provide them with a safe working environment. Instead, Plaintiffs allege that Defendants made affirmative misrepresentations about the safety of the facility. While it is clear that Plaintiffs do not allege that Defendants created the danger at Brentwood, Plaintiffs contend that by providing false safety briefings and representing to employees that there was no evidence of anthrax contamination at the facility (despite alleged actual knowledge to the contrary), Defendants increased the risk that Plaintiffs would be exposed to deadly anthrax spores and made Plaintiffs more vulnerable to such danger… The Court has given considerable thought to Plaintiffs’ arguments. If the facts are as alleged, the conduct of USPS managers would appear commendable for their dedication to getting the mail out but deplorable for not recognizing the potential human risk involved. … [T]hese alleged actions demonstrated a gross disregard for a dangerous situation … It is alleged that Defendants “had been put on notice of the serious consequences that could result” from Plaintiffs’ exposure to anthrax yet, despite such knowledge, Defendants engaged in a campaign of misinformation designed to keep the employees at work. … The Court therefore finds that Plaintiffs have

Chapter 15 l Hospitals and Workplaces in Health Emergencies  283

sufficiently alleged that Defendants’ conduct amounted to deliberate indifference, which violated their substantive due-process rights under the State Endangerment theory. … …Plaintiffs here are not seeking constitutional redress based on Defendants’ failure to protect them from a hazard that was “inherent” in their occupation. While it is true that Defendants did not force Plaintiffs to become postal workers, potential exposure to anthrax is not a danger that one would reasonably anticipate when accepting employment at a post office. …

Fig. 15-1 shows a chest radiograph 22 hours prior to death showing widened mediastinum due to inhalation anthrax.

Critical Thinking In the Miami case, the court was being asked to order immediate action (by granting an injunction) to prevent harm. In Briscoe, the harm had already occurred and the court was considering whether plaintiffs had a valid cause of action for damages. What kinds of concerns were foremost for the judges in each situation? Should the judges’ concerns have been different, and if so, how?

Workplaces and Mass Quarantine Depending on which infectious agent was involved, it is possible that a bioterrorist act or a pandemic such as influenza could necessitate a public health intervention that would

FIGURE 15-1  Chest x-ray shows distortion of central thoracic cavity caused by inhalation anthrax Source: Photo Courtesy of CDC/Public Health Image Library PHIL ID#1118.

284  THE LAW OF EMERGENCIES

mandate various social distancing techniques for weeks or even months. We analyzed this situation from the perspective of government power in Chapter 14. Here we consider the impact of such an order on individual workers and the private sector, especially the employment law questions that would immediately arise.

Job Protection Persons who need to absent themselves from work for any form of quarantine should not be penalized for cooperating with public health agencies in efforts to impede the spread of disease. As a practical matter, however, the great majority of people will not be able to simply stay home without risking the loss of their job. For employees, even if there was an income replacement system in place, the dislocation from having lost the job to return to would be enormous. Similarly, most employers will be unable to afford such a loss of productivity on their own, without some form of government assistance. (Review Chapter 11, and consider how the Stafford Act might apply in this situation.) In the United States, there is no federal law guaranteeing that a person’s job will be preserved if he or she is absent during an emergency for these reasons. Very few states include job protection for persons under quarantine in its state law, and even in those states, the laws are not adequate. The New Mexico law, for example, extends job protection to “a person who is placed in isolation or quarantine pursuant to the provisions” of its state law (N.M. Statutes § 12-10A-16). However, in a widespread outbreak or pandemic, health officials may have to rely on voluntary, self-quarantine as was done in Toronto during SARS. Individuals who acted as good citizens in response to the request would not have their jobs protected by a law such as New Mexico’s. New Jersey state law provides: (a) Any person who has been placed in isolation or quarantine pursuant to an order of the commissioner and who at the time of quarantine or isolation was in the employ of any public or private employer, other than a temporary position, shall be reinstated to such employment or to a position of like seniority, status, and pay, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so, if the person: (1) receives a certificate of completion of isolation or quarantine issued by the department or the authorized local health department; (2)  is still qualified to perform the duties of such position; and (3) makes application for reemployment within 90 days after being released from isolation or quarantine. (b) If a public or private employer fails or refuses to comply with the provisions of this section, the Superior Court may, upon the filing of a complaint by the person entitled to the benefits of this section, specifically require the employer to comply with the provisions of this section, and may, as an incident thereto, order the employer to compensate the person for any loss of wages or benefits suffered by reason of the employer’s unlawful action. A person claiming to be entitled to the benefits of this section may appear and be represented by counsel, or, upon application to the Attorney General,

Chapter 15 l Hospitals and Workplaces in Health Emergencies  285

request that the Attorney General appear and act on his behalf. If the Attorney General is reasonably satisfied that the person so applying is entitled to the benefits, he shall appear and act as attorney for the person in the amicable adjustment of the claim, or in the filing of any complaint and the prosecution thereof. No fees or court costs shall be assessed against a person so applying for the benefits under this section. Attorney fees shall be awarded to the Attorney General or to the counsel for a person entitled to benefits under this section, who prevails in the proceeding. (c) The Attorney General may apply to the Superior Court and the court may grant additional relief to persons placed in isolation or quarantine under section 15 of this act, which relief may include, but is not limited to, relief similar to that accorded to military personnel… (New Jersey Statutes 26:13–16)

If an employer does not voluntarily offer special leave in an emergency, many workers could use existing medical leave to cover an absence. The Family Medical Leave Act (FMLA) guarantees up to 12 weeks of unpaid leave for persons who have a “serious health condition” or persons who need the time off to care for a newborn or newly adopted child, or for a child, spouse or parent with a serious health condition (24 U.S. Code § 201 et seq.). “Serious health condition” is defined as one involving inpatient care or continuing outpatient treatment. Here, too, however, there are gaps in coverage. The FMLA applies only to entities with 50 or more employees, leaving small employers and self-employed workers uncovered. Workers must have been employed for at least one year and must work a certain number of hours per year, which averages to slightly more than three days a week, to qualify for FMLA coverage. Caring for anyone not included in the statutory list—such as a grandchild, domestic partner, or neighbor— would disqualify the worker from using leave under the FMLA. And while an already-infected person would meet the criteria for having a “serious health condition,” someone who had been exposed but was not ill, or who was taking precautions against exposure, would not qualify. Laws that prohibit discrimination based on disabilities could be useful in some emergency situations, but not all. The Americans with Disabilities Act prohibits firing an individual because he or she has a disability, or once had a disability, or is perceived to be disabled, or associates with someone who is disabled (42 U.S. Code § 12101 et seq.). Disability is defined for purposes of discrimination law as a physical or mental impairment that substantially limits a major life activity. One major life activity is working. The ADA would apply if an employee was fired because she had been infected with smallpox virus but was now recovered so that she could safely work, or because a false rumor had circulated that she was infectious. However, if that same person was fired for absenteeism, which happened because she could not be vaccinated because of contraindications to smallpox vaccine (such as pregnancy), which in term necessitated her staying away from public spaces until the epidemic passed, the ADA might not apply. If a healthy person voluntarily stayed home, even at the request of health officials, he may not be covered by the ADA if he was fired. There is a substantial and complex body of case law interpreting the ADA, and its possible application would have to be assessed in each individual case.

286  THE LAW OF EMERGENCIES

Without a specific statute such as job protection laws or the ADA, employees have little recourse. Under what is known as the employment at will doctrine, companies usually do not have to identify a specific reason for firings. Employers have the freedom to terminate workers at will, with or without good cause, unless a statute (such as an antidiscrimination law) or an employment contract or a collective bargaining agreement applies, and in essence changes the terms of the employer–employee relationship. The legal adage is that employers can fire workers for any reason or for no reason, but not for a prohibited reason. In certain rare instances, courts will bar firings if they find that the employer’s reason seriously undermines public policy. Examples have included firing an employee for refusing to perform an unlawful act or for filing a complaint with a regulatory agency (Sabine Pilot Service, Inc. v. Hauck, 1985). It is possible that courts would use this doctrine to invalidate a firing if the employee had an emergency-related reason to not report for work, although this relief would come only after the fact, if the employee sued.

Income Replacement Even if an individual’s job was preserved, an employer might well furlough workers during an extended emergency because of the financial hardship of paying them while at least parts of the business were closed. The most obvious model for income replacement in existing American law is our unemployment compensation benefits system. As a threshold matter, however, persons who did not lose their jobs, but who received unpaid leave, would not generally qualify for unemployment compensation. Other nations have handled this issue differently. All of the countries most affected by the SARS outbreak in 2003 adopted laws that provided some form of monetary compensation to persons who were under quarantine or who had been advised to remain at home (Rothstein, 2003, 2008). There is precedent in international law. The International Labour Organization, which is affiliated with the United Nations and the World Health Organization, adopted a recommendation 40 years ago that sickness benefits should include a cash award to compensate for loss of earnings caused by an individual being quarantined (ILO Medical Care and Sickness Benefits Recommendations, 1969 (No. 134, Art. 8)).

Critical Thinking Perhaps the biggest problem with the kinds of laws now available to address issues of job protection, income replacement and access to medical care during a lengthy emergency is that even if all of them could be used to the maximum, people would have no assurance in advance that their interests—as both employees and employers—would be protected. At best, their usefulness would be extremely uneven. Should America’s legal system prepare now for this kind of eventuality and if so, how? Alternatively, are there advantages to waiting to see if such needs arise? Which do you think is the better course?

Chapter 15 l Hospitals and Workplaces in Health Emergencies  287

Summary Although the law of public health emergencies focuses on federal and state governments as the sources of the greatest power to prevent harm, the impact of such events carries over into the private sector as well. The provision of health care itself is likely to be the sector most affected by any public health crisis, but—depending on the circumstances—others may be as well. Policymakers are increasingly seeking to anticipate and plan for the full dimensions of social harm from such an emergency.

Important Terms Active endangerment Americans with Disabilities Act ● Cutaneous anthrax ● Employment at will doctrine ● EMTALA ● Family and Medical Leave Act ● Inhalational anthrax ● Injunction ● ●

Review Questions 1. Design a chart mapping all the ways that a four-week public health emergency would disrupt normal functioning of the government and the economy. How should these costs be allocated? Who should bear which ones? How might the law operate to carry out these policy decisions about the distribution of burdens? 2. Imagine that you are the head of a large urban hospital. Since hospitals are workplaces, you have a duty under OSHA to develop a contingency plan for emergencies. What issues would your plan address? 3. Why would the law set such a high standard—irreparable injury—before a judge can grant the injunction sought in the Miami case? 4. Why would the law provide that the government’s action could meet the criteria for “active endangerment” only in the limited circumstances described in Briscoe?

16 The Law of Search and Seizure Introduction In this chapter, we will be examining how two amendments in the Bill of Rights limit the actions of public officials and how those limitations might alter the range of permissible responses to any kind of public emergency. The Fourth Amendment imposes restrictions on searches and seizures of both individuals and property. Although these restrictions are most commonly applicable in the context of ordinary criminal prosecutions, they can also affect how emergency officials respond to an emergency. The Fifth Amendment provides a general rule that the government must pay “just compensation” whenever it “takes” private property for a public use—known as the Takings Clause. During an emergency, the Takings Clause could be triggered by such things as forced closures or evacuations and the commandeering of health institutions for purposes such as quarantine. An emergency official must be aware of the normal scope of and the exceptions to these rules when planning responses to an emergency. In this chapter, we will explore how the Fourth Amendment constrains the ability of public officials to conduct searches; when and for what purposes an emergency provides an exception to the normal Fourth Amendment rules; when the Takings Clause of the Fifth Amendment could require the government to compensate for property seized or destroyed during an emergency; and the ways in which state emergency laws address these issues. THE FOURTH AND FIFTH AMENDMENTS The Fourth and Fifth Amendments to the U.S. Constitution apply only to government-sponsored actions. Because public health officials are government agents, they are bound by constitutional standards. As a general rule, these amendments will also apply to any individual acting as an agent of the government. Actions by private sector entities or ordinary citizens, however, are not covered by the Fourth and Fifth Amendments.

The Fourth Amendment The Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but

The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00016-4 © 2018 Elsevier Inc. All rights reserved.

291

292  THE LAW OF EMERGENCIES

upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The protection afforded by this amendment historically emanates from the home. The idea that the privacy of one’s own home is somehow special is centuries old. It was in 1604 that an English court famously observed, “the house of every one is to him as his castle and fortress” (quoted in Wilson v. Layne, 1999). While the range of Fourth Amendment protections has increased over time, the home is still seen to a large extent as inviolable. As we will see, knowing when and why a private home can be entered can be very important during an emergency. The “seizure” strand of the Fourth Amendment refers mainly to the detention and interrogation of individuals. Any arrest is a seizure, but formal arrest is not necessary for a government’s seizure of a person to occur. When a reasonable person would not have felt free to leave based on a police officer’s words or actions, that also constitutes a seizure.

Reasonable Searches Because the Fourth Amendment prohibits only those searches that are “unreasonable,” the touchstone for analysis is reasonableness. Although testing for reasonableness may seem difficult, the Supreme Court has held that reasonableness is synonymous with the presence of a warrant. As a result, warrantless searches are presumed to be “unreasonable” and therefore in violation of the Fourth Amendment unless they conform to certain narrowly defined exceptions. We will soon be turning to some of these exceptions and how they might be relevant in emergency situations. Before we do, note that the Amendment also demands that warrants can only be issued “upon probable cause.” Probable cause has come to require that the official(s) have some individualized suspicion as to the person or place to be searched. One way of understanding probable cause is that officials must demonstrate that it is likely that evidence of a crime will be found in the area to be searched. Generally, with or without a warrant, searches are only valid when based on probable cause. Seizures are subject to slightly different rules. Arrests usually require a warrant issued on probable cause, unless the circumstances make this both impractical and dangerous. Interrogations, on the other hand, normally only require probable cause. HOW IS THE FOURTH AMENDMENT ENFORCED? The most powerful mechanism for enforcing the Fourth Amendment lies in the principle that if the police violate an individual’s rights by engaging in an unlawful search, they are prohibited from using whatever they find against the person. This so-called “exclusionary rule” will not usually be relevant in emergencies that typically involve no wrongdoing and therefore no need for criminal prosecution—for example, a naturally occurring epidemic or a flood. Of course, in the case of bioterrorism, this rule could prove very important, as the desire to hold someone responsible might strongly conflict with the need to prevent the spread of the disease or future attacks.

Chapter 16 l The Law of Search and Seizure  293

Community Caretaking The Fourth Amendment is primarily concerned with public officials operating pursuant to criminal law enforcement needs: for example, chasing a suspect or investigating a crime. Other exceptions exist to both the warrant and probable cause requirements, and most of which arise when officials are acting for purposes other than law enforcement. Because the nature of an emergency is frequently outside the criminal law context, these exceptions may be of great use to emergency officials. Perhaps the most important of the non law enforcement exceptions arises when the police are acting in their “community caretaker” function. When acting in that role, the police are generally not bound by the normal warrant and probable cause requirements. The difference between the community caretaking and normal law enforcement functions is one of motivation: The law enforcement function includes conduct that is designed to detect or solve a specific crime, such as making arrests, interrogating suspects, and searching for evidence. Community caretaking on the other hand, is based on a service notion that police serve to ensure the safety and welfare of the citizenry at large. For example, this may involve approaching a seemingly stranded motorist or lost child to inquire whether he or she needs assistance, assisting persons involved in a natural disaster, or warning members of a community about a hazardous materials leak in the area. (Decker, 1999)

One court colorfully summed up the exception as follows: Police are required to serve the community in innumerable ways, from pursuing criminals to rescuing treed cats. While the Fourth Amendment’s warrant requirement is the cornerstone of our protections against unreasonable searches and seizures, it is not a barrier to a police officer seeking to help someone in immediate danger. (People v. Molnar, 2002)

How does the community caretaking exception alter the normal rules of the Fourth Amendment? If the community caretaking function does not involve the “seizure’” of a person, the officer is not required to demonstrate a detailed and reasonable justification for her actions. In other words, so long as no one is detained or interrogated, neither a warrant nor probable cause is necessary. While the Supreme Court has never explicitly defined this as an “emergency” exception, the suggested list of caretaking functions above suggests that it is commonly triggered by emergencies, both large (a hazardous materials leak) and small (a cat in a tree). The Supreme Court has connected this exception with public health. In fact, in a case mentioning “inspections, even without a warrant, that the law has traditionally upheld in emergency situations,” the Court offered this list: exposure to unwholesome food, smallpox and other contagious diseases, and tubercular cattle (Camara v. San Francisco, 1989).

294  THE LAW OF EMERGENCIES

Although there are few cases that specifically address public health or other emergencies as such, the decisions that do exist clarify how acting out of public health and welfare concerns can at least partially trump the warrant and probable cause requirements. Firefighting, for example, falls into the caretaking function. Firemen entering a house to fight a fire are generally not subject to Fourth Amendment strictures. So long as they are not specifically looking for evidence of a crime, any evidence they might find while fighting the fire would be admissible in court. Meanwhile, police officers would similarly be operating outside the Fourth Amendment to the extent that they were helping put out or investigate the cause of the fire, subject again to the limitation that they cannot be looking for evidence of a crime.

Case Study 1—The Furniture Store Fire [F]irefighters were dispatched around midnight to a furniture store to extinguish a fire. While fighting the fire, firefighters came across two containers of flammable liquid and summoned the police, who seized the containers as possible evidence of arson. Police and firefighters then briefly scanned the rest of the building in an attempt to determine the exact cause of the fire. Due to darkness and smoke, the officials were not able to establish the fire’s origin and, consequently, evacuated the premises around 4:00 a.m. after verifying that the fire was completely extinguished. Later that morning, police and firefighters re-entered the premises without a warrant several times to further investigate the cause of the fire. During those entries, police seized pieces of a rug and bits of the stairway as evidence suggestive of a fuse trail. More than three weeks later, police again made repeated visits to the scene to investigate and to obtain evidence against the defendants, the owners of the store, who were charged with conspiracy to commit arson. When does the community caretaking function end and evidence collection begin? The police had neither a warrant nor consent for any of these various entries. At trial, the defendants moved to suppress all evidence obtained after the initial entry as the fruits of illegal warrantless searches. The Supreme Court noted that a fire in progress was an obvious emergency permitting immediate governmental action. However, the Court pointed out that owners of fire-damaged premises, whether commercial or residential, which are not completely destroyed, continue to have a reasonable expectation of privacy in their premises even after the exigency of the fire has passed. Thus, the Fourth Amendment was applicable, and a warrant should have been obtained. Imagine that instead of a fire, the house had been partially damaged by a flood or wholly contaminated by the release of a biological agent. What limitations would there be on entries by public health officials and other emergency workers? In the latter scenario, what happens if or when it becomes clear that the release of the agent was intentional and probably criminal? Two other cases might provide some answers. In one, a 911 call alerted the police about a “strange odor” coming from an apartment, so strong and putrid that some neighbors had to vacate their apartments. Police officers arrived and knocked on the door, but no one answered. After concluding there was no alternative, they forced their way into the apartment. The apartment was covered

Chapter 16 l The Law of Search and Seizure  295

with vermin and a dead body was protruding from a closet. The evidence seen and collected by the officers was admitted into court because “[t]he police were not functioning in a criminal arena, but acting as public servants in the name of protecting health and safety” (People v. Molnar, 2002). In the other, a police officer, who had received tips that the defendant kept the manufacturing ingredients for narcotics in his car, approached the defendant’s car only to smell an odor of ether “so strong that it made his eyes water” (People v. Clements, 1983). Concerned the ether might explode, the officer opened the trunk and found the ether in a glass whiskey bottle. The court held that the search was permissible because the smell of ether presented an emergency. Although there are few clear lines in this area, there appears to be a space in which an emergency official can be acting primarily out of his caretaking obligation while at the same time clearly engaged in more traditional law enforcement efforts.

Factors That Trigger Community Caretaking or Emergency Exceptions What is required to trigger the community caretaking or emergency exception? Law professor John H. Decker has identified three factors. First, there must be some identifiable emergency. In other words, the circumstances must suggest that the “officer could have reasonably believed that there was an immediate need for his or her community caretaking assistance.” Recognized examples include: a burning building; a person in need of medical treatment; missing persons; kidnaping; a child in danger; report of an assault in progress; the odor of a dead body; and the presence of volatile chemicals. Second, the officer must be motivated by some caretaking instead of law enforcement concern.

●

●

Third, the action must fall within the scope of the emergency, both in terms of time and place.

●

Administrative Searches Another exception to the normal warrant requirement has been established for administrative authorities charged with ensuring public health and safety compliance. Such “[a]dministrative searches have been described generally as a means of ensuring compliance with such matters as occupancy permits and proper wiring standards” and have generally been permitted because they “normally involve only a minimal invasion of privacy” (Gould & Stern, 2004). Administrative searches are not excused from the warrant requirement altogether, but rather are subjected to a lower standard of probable cause than law enforcement searches. As opposed to the traditional ‘likelihood that evidence will be found,’ in the administrative context “probable cause is satisfied by ‘reasonable legislative or administrative standards for conducting an area inspection… with respect to a particular dwelling’”(Goodman et  al., 2003). In other words, ensuring compliance can be done in a more systematic way than criminal searches, which require individualized suspicion.

296  THE LAW OF EMERGENCIES

Generally, routine (what we might call non-emergency) searches conducted by public health officials will qualify as administrative searches: [C]ommon purposes of public health investigations include, for example, detecting and remediating biological, chemical, or other threats to community health; developing information regarding risk factors for the occurrence of diseases, injuries and disabilities; and providing a scientifically rational basis for implementing prevention and control measures. These purposes may require public health officials to make entries to obtain samples of substances that pose a threat to public health, conduct inspections, or to alleviate hazardous conditions. Entry may also be sought in response to a complaint, in furtherance of a regulatory scheme, or pursuant to an enforcement provision in a statute or ordinance. (Goodman et al., 2003)

Critical Thinking What types of administrative searches might be necessary during or after a pandemic? A flood or earthquake? To what extent do you think administrative searches might be inapplicable in the event of a bioterrorist attack?

Case Study—Michigan v. Tyler Revisited We can locate a primary example of how the administrative search doctrine functions by revisiting the scene of a fire: If the primary object [of a search] is to determine the cause and origin of a recent fire, an administrative warrant will suffice. To obtain such a warrant, fire officials need show only that a fire of undetermined origin has occurred on the premises, that the scope of the proposed search is reasonable and will not intrude unnecessarily on the fire victim’s privacy, and that the search will be executed at a reasonable and convenient time. (Michigan v. Clifford, 1984)

Recall Michigan v. Tyler described above. In that case, the firefighters and police officers entered the building at three different times and for three different purposes: first, while the fire was burning, in order to put it out; second, later that morning, to further investigate the cause of the fire; and third, more than three weeks later, to look for evidence of arson. The first entry was permissible without a warrant on the grounds of the emergency or community caretaking exception. For obvious reasons, we do not want to make firefighters wait for a warrant before putting out a fire. Accordingly, there was no Fourth Amendment violation, and although the firefighters could not actively look for evidence, any evidence they came across in the course of putting out the fire would be admissible. The second entry presents a harder case, coming so soon after the fire was put out. Remember that the scope of the emergency exception is limited to the timeframe of the

Chapter 16 l The Law of Search and Seizure  297

emergency. In Michigan v. Tyler, the fire had already been extinguished, so the Supreme Court would have required a warrant. Because they were only looking for the cause of the fire—then unknown—the firefighters probably would have needed only an administrative warrant. Under slightly different circumstances, however, we might imagine a court ruling that the emergency was still ongoing and therefore not requiring the warrant. The third entry, however, was conducted for the purpose of finding evidence of arson. This search would not fit the administrative search or community caretaking exception, and an ordinary warrant accompanied by probable cause would have been necessary.

THE SCOPE OF AN ADMINISTRATIVE SEARCH It is important to realize that administrative warrants provide “no wholesale right to do a thorough search of the house, such as opening drawers or cabinets” (Goodman et al., 2003). Rather, the search is limited to its purpose: a public health official testing for chemical agents, for example, might only need access to a main room and the water supply, but would have little reason to rifle through a desk. Searches that exceed their purpose are often found to violate the Fourth Amendment. Items in “plain view,” however, are fair game. So if the health inspector, while testing the tap water, sees contraband in the sink, the contraband can be admitted into evidence in court. Now consider Florida Department of Agriculture v. Haire. In that case, citrus tree growers challenged search warrants permitting area-wide searches to find trees infected with citrus canker. Any infected trees and any trees within 1900 feet of an infected tree were to be removed and destroyed. While the court would have allowed warrants that included multiple properties, it found the area-wide warrants invalid. The probable cause requirement, whether in a criminal or administrative warrant, requires “particularity in the description of the property to be searched.”

Special Needs There is one other relevant exception to the general rules of the Fourth Amendment. The special needs exception applies “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable” (New Jersey v. T.L.O., 1985). Generally, the common thread tying such searches together is the presence of a “safety concern of sufficient magnitude to outweigh the particular privacy interests involved” (American Federation of Teachers v. Kanawha County Board of Education, 2009). While such special needs searches may sound similar to the emergency or caretaking exception, they usually do not involve actual emergency situations. Instead, the special needs doctrine has been used to uphold systematic, suspicionless searches, such as routine drug tests of students, government employees, and railway employees (Gould & Stern, 2004). In other words, the special needs exception applies when warrants would present an undue administrative burden given the safety concerns involved, not because those safety concerns are time-sensitive. This doctrine has also been used to permit the search of probationers’ homes on individualized suspicion less than the normal probable cause.

298  THE LAW OF EMERGENCIES

One law review article considered this doctrine in a hypothetical involving a small atomic bomb—for which we might substitute a dirty bomb—smuggled into a city and tracked to an area in which 100 private homes were located. In a normal criminal search, the one-in-100 chance afforded by the tracking would not amount to probable cause as to any house. And as we discussed earlier, warrants generally cannot be used to conduct area-wide sweeps. Could the special needs doctrine work here? Because the special-needs rationale has been used to permit a search of the home [of a probationer], and given that protecting the public is one of the concerns allowing such searches, it might appear that our hypothetical search, aimed at protecting homes in an entire urban area, fits neatly within this exception… [But unlike probationers], all citizens have a broad and cherished expectation of privacy in their homes and have no relation to the police that would give the latter any right to intrude on the home. (Gould & Stern, 2004)

The special needs doctrine would probably not work under this scenario. The needs here are too closely aligned with normal law enforcement. Could you argue, however, that these searches ought to be permitted under the emergency exception? This does not end the relevance of special needs searches for public health officials.

Critical Thinking Jacobson Revisited (Again) Briefly read over the facts of Jacobson in Chapter 13. Jacobson involved forced vaccinations. Consider for a moment the fact that the Supreme Court has allowed numerous systematic drug-testing programs under the special needs theory. Now imagine the sudden outbreak of a highly contagious and deadly disease in a major U.S. city. Public health officials want to conduct mandatory blood testing on all of the city’s residents. What problems would the Fourth Amendment potentially present for this plan? How great do you consider the privacy invasion—the needle in the arm and the blood examined— for the individuals involved? Are there any hurdles the officials will have to clear before beginning the testing? Or will certain exceptions and limitations on the Fourth Amendment render the Amendment inapplicable in these circumstances?

The Fifth Amendment and the Takings Clause The Fifth Amendment states: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Chapter 16 l The Law of Search and Seizure  299

The last clause of the Amendment is commonly referred to as the Takings Clause. As demonstrated above by the special status given to the home, the law is very protective of private property: “It is a universal law that wherever the right to own property is recognized in a free government, practically all other rights become worthless if the government possesses an uncontrollable power over the property of the citizen” (House v. Los Angeles County Flood Control District, 1944). The Takings Clause is one specific protection of private property.

Eminent Domain v. the Police Power The general rule of the Takings Clause is that the government must pay just compensation for any property it has taken for public use. The government’s power to take property for public use is called eminent domain. Takings come in two forms. The first are physical occupations— or “real” takings—in which the government either physically damages or appropriates or occupies property. Such real takings are usually remedied by granting the property owner money damages for the market value of the property taken. An example might be the appropriation of a house or other private building in order to build some public structure in its place. The other form is the regulatory taking, where some government action diminishes the owner’s ability to use his property. For example, if a city rezones a parcel of land to prohibit almost all buildings or uses on that land, we might call this a regulatory taking. The government has not actually “taken” the land, but it has severely restricted its use. Regulatory takings are a confusing area of the law, but the rule of thumb is that they do not require compensation unless they deprive the property owner of all economically beneficial use of the land—a very high standard to meet. Beyond the question of form, takings are defined by the motivation underlying them. Courts have strongly delineated between those takings that are effected for “public use” and those that occur for other purposes. One of the most important “other purposes” is the police power, which allows states to act in defense of the public health and safety. The line between public use and the police power is often a fine one, but it is very important because it separates those takings that require compensation from those that do not: The distinction between an exercise of the eminent domain power that is compensable under the fifth amendment and an exercise of the police power [which is not compensable] is that in a compensable exercise of the eminent domain power, a property interest is taken from the owner and applied to the public use because the use of such property is beneficial to the public; and in the exercise of the police power, the owner’s property interest is restricted or infringed upon because his continued use of the property is or would otherwise be injurious to the public welfare. (Franco-Italian Packing Co. v. United States, 1955)

Put another way, the eminent domain power relates to public improvements and public works, but does not cover emergency situations that threaten the public health (Customer Company v. City of Sacramento, 1995). One classic example of police power at work are those cases “in which buildings have been set on fire to prevent a larger fire from spreading.”

300  THE LAW OF EMERGENCIES

Of course, this is not to say that in any situation the government can claim there was an emergency and be excused from paying compensation. The government must demonstrate that an emergency actually existed; in addition, the damage inflicted “cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights” (House v. Los Angeles County Flood Control District, 1944). The government must also exercise the police power with reasonable care. When the government was the cause of the emergency compensation being required, compensation may be required (Odello Brothers v. County of Monterey, 1998).

Critical Thinking Do you think the distinction between taking property for public use and destroying property to protect the public health is a viable one? In the examples that follow, can you make the argument that the government should have been required to pay the property owner? Why might we consider this distinction a good one?

Public Health and Takings What types of actions have been excused from the normal rule of compensation as exercises of the police power? Historically, the police power exception has been at its strongest during wartime. Compensation was denied for a tuna boat impounded off the coast of Costa Rica in the days after Pearl Harbor, an oil facility in Manila destroyed by the U.S. Army immediately prior to the Japanese invasion of the Philippines, and a bridge destroyed by Union forces to prevent a Confederate advance during the Civil War (Franco-Italian Packing Company v. United States, 1955; United States v. Caltex, Inc., 1952; United States v. Pacific Railroad, 1887). The historical record also provides a number of cases that deal directly with the public health. So, for example, the destruction of a herd of elk infected with contagious bovine tuberculosis did not require compensation (South Dakota Department of Health v. Heim, 1984). Case Study 2—The Smallpox Hospital In 1896, Chicago built and began operating a smallpox hospital on the east side of Lawndale Avenue near West 33rd Street on a parcel of land the city owned. The owners of property on the west side of that same stretch of Lawndale Avenue sued the city, claiming that the smallpox hospital had rendered their property unsuitable for many investment purposes. The private property owners sought money damages under the Takings Clause. The court denied the property owners’ claim, however, stating that it was within the city’s police power to erect the hospital on its own land (Frazer v. Chicago, 1900). What type of taking was involved in this case? How might the principles of the case be important during a public health emergency? Think specifically of quarantine and isolation. Note that 20 years later, a court granted compensation to a property owner who complained about “hospitals for the confinement and treatment of malignant, contagious, and infectious diseases” built adjacent to her land. One possible difference is that the property owner in that case alleged that the city negligently maintained the “pest house” (Oklahoma City v. Vetter, 1919). What additional factors might that ruling require a public health official to consider in dealing with an epidemic?

Chapter 16 l The Law of Search and Seizure  301

Case Study 3—The Nursing Home In September 1976, the Woodland Nursing Home in Methuen, Massachusetts, was facing serious budgetary issues. It told its staff that it could not longer pay them, and informed the families and relatives of certain patients that they were advised to remove those patients immediately. The Massachusetts Commissioner of Public Health decided that the transfer of the patients would put them at serious risk, such that the situation constituted a public health emergency. As a result, the Governor of Massachusetts declared an emergency and ordered that the Department of Public Health take over the nursing home. The emergency declaration was revoked two days later, and the nursing home was turned back over to its owners. The owners then sued Massachusetts for compensation under the Takings Clause. The court, however, held that no compensation was required: We believe that the Commonwealth’s action in these circumstances constituted an exercise of the State’s police power and a regulation of or a restriction upon the plaintiff’s use of its property “to prevent the use thereof in a manner that is detrimental to the public interest.” (Davidson v. Commonwealth, 1979)

Davidson deals with a somewhat limited emergency. How are the stakes changed when the situation is graver and potentially affects many more people? Think again about our example of a dirty bomb being detonated or other chemical agent being released in an urban area. Presumably public health officials would need to use the existing health infrastructure—and hospitals in particular—to respond to the situation. This might well involve various degrees of appropriating hospitals, from using isolated wards for quarantine to taking over the entire operations of the facility. What types of claims might the hospital make once the emergency passed? Law professor Vickie J. Williams has suggested some possibilities: …Physical occupation of [a] hospital by the government would clearly involve interference with “property,” since even a de minimus physical occupation of real property constitutes a compensable taking. An order establishing an isolation or quarantine center at a hospital could involve a physical occupation of the hospital by the government. Nevertheless, it is far more likely to constitute a regulatory action directing the hospital to use its premises in a certain manner, thus disrupting the facility's day-to-day business. It is far from clear whether the hospital's contracts with insurers and other business associates, and day-to-day revenueproducing operations, are “property” within the meaning of the Takings Clause. Protecting these intangible interests would be of paramount importance to a hospital when considering whether to comply with an order designating it an isolation or quarantine center. The Supreme Court has found compensable takings when government action adversely affects intangible interests such as loss of repose, intellectual property, and monetary interest on pooled funds. Yet, hospital managers could not be certain whether the Takings Clause would protect the hospital's intangible business interests. Intangible business-related interests have been characterized as compensable “property” in some types of takings, but have been characterized as noncompensable losses in others. Can you think of any other ways in which public health officials might “take” private property during such an emergency?

302  THE LAW OF EMERGENCIES

Takings and Emergencies—Statutory Response In addition to the general concerns and issues involved in the Takings Clause, many states have enacted legislation specifically expanding takings-type powers in times of emergency. New Jersey’s law on takings and public health emergencies, based largely on the MSEHPA, follows: During a state of public health emergency, the commissioner may exercise, for such period as the state of public health emergency exists, the following powers concerning health care and other facilities, property, roads, or public areas: (a) Use of property and facilities. To procure, by condemnation or otherwise, subject to the payment of reasonable costs …, construct, lease, transport, store, maintain, renovate or distribute property and facilities as may be reasonable and necessary to respond to the public health emergency, with the right to take immediate possession thereof. Such property and facilities include, but are not limited to, communication devices, carriers, real estate, food, and clothing.

How long might a health emergency last? Can the hospital challenge the state’s determination of the duration of the emergency?

This authority shall also include the ability to accept and manage those goods and services donated for the purpose of responding to a public health emergency. The authority provided to the commissioner pursuant to this section shall not affect the existing authority or emergency response of other State agencies. (b) Use of health care facilities. (1) To require, subject to the payment of reasonable costs …, a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary to respond to the public health emergency, as a condition of licensure, authorization or the ability to continue doing business in the State as a health care facility. After consultation with the management of the health care facility, the commissioner may determine that the use of the facility may include transferring the management and supervision of the facility to the commissioner for a limited or unlimited period of time, but shall not exceed the duration of the public health emergency. In the event of such a transfer, the commissioner shall use the existing management of the health care facility. Do you think reasonable costs are the same as just compensation?

Chapter 16 l The Law of Search and Seizure  303

(2) Concurrent with or within 24 hours of the transfer of the management and supervision of a health care facility, the commissioner shall provide the facility with a written order notifying the facility of: (i)   the premises designated for transfer; (ii)   the date and time at which the transfer will commence; (iii)  a statement of the terms and condition of the transfer; (iv)  a statement of the basis upon which the transfer is justified; and (v)   the availability of a hearing to contest the order, as provided in paragraph (3) of this subsection. (3) A health care facility subject to an order to transfer management and supervision to the commissioner pursuant to this section may request a hearing in the Superior Court to contest the order. (i) Upon receiving a request for a hearing, the court shall fix a date for a hearing. The hearing shall be held within 72 hours of receipt of the request by the court, excluding Saturdays, Sundays, and legal holidays. The court may proceed in a summary manner. At the hearing, the burden of proof shall be on the commissioner to prove by a preponderance of the evidence that transfer of the management and supervision of the health care facility is reasonable and necessary to respond to the public health emergency and the order issued by the commissioner is warranted to address the need. (ii) If, upon a hearing, the court finds that the transfer of the management and supervision of the health care facility is not warranted, the facility shall be released immediately from the transfer order. (iii) The manner in which the request for a hearing pursuant to this subsection is filed and acted upon shall be in accordance with the Rules of Court. (4) A health care facility which provides services or the use of its facility or whose management or supervision is transferred to the commissioner pursuant to this subsection shall not be liable for any civil damages as a result of the commissioner's acts or omissions in providing medical care or treatment or any other services related to the public health emergency. Why might this section be very important to the hospitals?

(5) For the duration of a state of public health emergency, the commissioner shall confer with the Commissioner of Banking and Insurance to request that the Department of Banking and Insurance waive regulations requiring compliance by a health care provider or health care facility with a managed care plan's administrative protocols, including but not limited to, prior authorization and pre-certification. (c) Control of property. To inspect, control, restrict, and regulate by rationing and using quotas, prohibitions on shipments, allocation or other means, the use, sale, dispensing, distribution or transportation of food, clothing and other commodities, as may be reasonable and necessary to respond to the public health emergency.

304  THE LAW OF EMERGENCIES

This section grants a great deal of leeway over most property. Is the “reasonable and necessary” requirement a serious limitation on this power?

(d) To identify areas that are or may be dangerous to the public health and to recommend to the Governor and the Attorney General that movement of persons within that area be restricted, if such action is reasonable and necessary to respond to the public health emergency. N.J. Stat. 26:13-9. Reasonable reimbursement, meanwhile, is determined and awarded by a State Public Health Emergency Claim Reimbursement Board (N.J. Stat. 26:13-24). How well does the New Jersey statute fit with what we already know about the Takings Clause and the limitations on it provided by the police power?

THE MAYOR OF DES MOINES DECLARES AN EMERGENCY The massive floods of 1993 caused disruption throughout Des Moines, including the incapacitation of the city’s water treatment facility. In response, the Mayor issued a proclamation of emergency that ordered businesses to provide their own sanitation facilities for employees. Most businesses complied, but some simply ignored the proclamation. The city began to receive complaints from employees that they were being forced to work in unsanitary conditions. The city’s lawyers had to face the question of whether and how the proclamation could be enforced. The city’s chief lawyer described the result: … Iowa's state code provides for no specific penalty in this situation. Iowa statutes simply provide that in times of emergency the mayor may “govern the city by proclamation.” The Legal Department reasoned that if the mayor can govern by proclamation, then the mayor can do by proclamation whatever the city council exercising the city's home rule powers can do by motion, resolution, amendment, or ordinance. We reasoned further that since the initial proclamation stated that all future proclamations were to have the force and effect of law, the proclamation requiring businesses to cease occupying their business premises had the same effect as an ordinance. Consequently, since the original proclamation provided that the violation of a proclamation would be considered a violation of law punishable as such, then a violation of a proclamation could be prosecuted as a simple misdemeanor under the Iowa Code and would be punishable as such. In the face of open defiance of the second proclamation by a small handful of businesses, the Legal Department advised the mayor and city staff to advise the public that violators would be prosecuted for misdemeanor violations. Fortunately for all concerned, the need to resort to such eventualities was avoided by the restoration of water service … (Nowadsky, 1995)

Chapter 16 l The Law of Search and Seizure  305

Takings, Emergencies, and Public Policy The Takings Clause is not merely an after-the-fact question. From a policy standpoint, compensation for perceived takings could be a crucial issue both for the government and hospitals in preparing to react to emergencies. According to Professor Williams: Because the availability, type, or amount of compensation under the Takings Clause is uncertain, the Clause is not an incentive for hospitals to comply with the orders of public health authorities during a pandemic. In the case of a wide-scale public health emergency requiring multiple isolation and quarantine centers capable of using sophisticated medical technology, the threat of massive amounts of litigation regarding the compensation due to hospitals is likely to cool the eagerness of hospitals to comply with the orders of public health authorities. It could also make the government think twice about designating hospitals as isolation and quarantine centers. This fear may dilute the response to the emergency, cause delay, and adversely affect the public's health. The undeveloped state of our Takings Clause jurisprudence in the context of public health emergencies encourages hospitals to protect themselves by resisting such orders in the first place. Resistance becomes far more attractive than taking the chance of complying and engaging in protracted litigation about the amount of compensation due afterward. Do these concerns help explain or justify the distinction between eminent domain and “public use” on the one hand, and the police power and protecting the public welfare on the other?

“Demoralization costs” are a less apparent danger to the viability and quality of our health care system from the uncertainty surrounding compensation for takings in public health emergencies. A “demoralization cost” is the loss in utility that can be attributed to the likelihood that a property owner, knowing that the compensation she receives will be inadequate if her property is taken, will fail to maintain the property or use it properly. A hospital that knows that it is unlikely to receive adequate compensation for its losses if it is designated as an isolation or quarantine facility has little economic incentive to build additional capacity or invest in additional equipment in anticipation of a pandemic. In this context, demoralization costs may take the form of hospitals choosing to make themselves less attractive isolation or quarantine centers by channeling funds away from pandemic preparedness. Hence, hospitals that might have been well-prepared for a pandemic may consciously choose to under-prepare so that they can reap the financial benefits related to treating the more lucrative patients that isolation and quarantine centers will have to turn away. A perverse incentive to under-prepare such as this works to the severe detriment of the public's health by decreasing overall pandemic preparedness. Are hospitals better off preparing to be unprepared?

306  THE LAW OF EMERGENCIES

Critical Thinking How well do you think the New Jersey statute addresses these concerns?

Summary Search and seizure law is likely to become relevant at some point in almost any emergency because of the likelihood of official decisions to restrict movement of people or usage of property. Traditionally, law has imposed fewer restrictions on police action when the individual being restrained is not suspected of a crime and therefore not at risk of prosecution and incarceration. However, situations involving limitations on movement, such as quarantine, trench closely to that line and raise important legal and normative questions.

Important Terms Administrative search Community caretaking function ● Eminent domain ● Exclusionary rule ● Just compensation ● Plain view ● Probable cause ● Regulatory taking ● Special needs exception ● Taking for police power purposes ● Taking for public use ● Warrant ● ●

Review Questions 1. What are the usual requirements for conducting a search of a private home under the Fourth Amendment? 2. What exceptions to the normal Fourth Amendment rules might be triggered in the event of a public health emergency? 3. What is the difference between eminent domain and a taking that is done under the police power? Which require compensation to be paid to the property owner? 4. What policy reasons suggest that public health officials should be granted a good deal of leeway in both searching and taking private property during emergencies?

17 Evacuation Introduction Issues related to evacuation cut across many different kinds of emergencies, from natural disasters to terrorist attacks. In the best-case scenario, there may be two to three days of advance warning that an evacuation will be necessary. Or there could be a repetition of the frenzy of evacuating the World Trade Center on September 11. The space to be evacuated could be as sprawling as an entire city or region, or as condensed as a single building. In this chapter, you will explore the legal bases for allowing government officials to order evacuations as well as legal duties that attach to the treatment of vulnerable populations.

Fundamentals: Legal Authority The Supreme Court has never ruled on the specific question of whether public officials have the power to order mass evacuations in an emergency, but that is likely because no case has reached the Court that raises serious questions about the absence of that power. An order to evacuate, in anticipation of a genuine emergency, is likely to be upheld unless it runs afoul of other constitutional principles; for example, an order that singled out or was enforced against one group of persons (see Jew Ho in Chapter 9) or that had the purpose or effect of silencing protected expression (see discussion of viewpoint neutrality principle in Chapter 9). As the Eleventh Circuit said in upholding a curfew during a hurricane emergency: [W]hen a curfew is imposed as an emergency measure in response to a natural disaster, the scope of review in cases challenging its constitutionality “is limited to a determination whether the [executive’s] actions were taken in good faith and whether there is some factual basis for the decision that the restrictions … imposed were necessary to maintain order.” (Smith v. Avino, 1996)

That principle is said to flow from the inherent police powers of a state, as in the following case:

The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00017-6 © 2018 Elsevier Inc. All rights reserved.

307

308  THE LAW OF EMERGENCIES

Miller v. Campbell County, Wyoming U.S. District Court for the District of Wyoming, 1989 Alan B. Johnson, District Judge. The plaintiff, H. Douglas Miller, seeks damages ... for alleged deprivations of his civil rights under the Fourteenth Amendment to the United States Constitution. The case arose after county officials discovered that lethal gasses, hydrogen sulfide, and methane were seeping into the Rawhide subdivision where the plaintiff owned a home. The gasses, evidently, were also seeping into the homes located in the subdivision. The subdivision is located in Campbell County, Wyoming, and is adjacent to a large open pit coal mine owned by Amax Coal Company. The plaintiff and other persons owning homes in the subdivision previously sued Amax in this court under various tort theories, alleging that Amax’s mining operations caused the dangerous gasses to seep into their homes thereby causing them injuries to their property and persons. The court dismissed that action on April 26, 1989, because of a settlement reached by and between the parties. Miller is now suing Campbell County and its commissioners, alleging that the commissioners violated his constitutional rights when, in response to the gas problems, they voted to pass a resolution that ordered the property owners of the Rawhide subdivision to evacuate their homes. The county discovered the presence of dangerous gasses in the subdivision in February 1987. After consulting with federal and state agencies concerning health and safety problems posed by the gas seepage, the Wyoming Department of Environmental Quality (DEQ) conducted drill tests that confirmed the presence of methane and hydrogen sulfide gasses. In response to the problem, the county commissioners passed two resolutions declaring the Rawhide subdivision uninhabitable and ordered, by their first resolution, that some residents evacuate their homes by July 3, 1987. The defendants passed the first resolution on June 2, 1987, and attempted to order a permanent evacuation of the subdivision on or before July 31, 1987. The resolution calling for a permanent evacuation however was soon rescinded. On June 3, the governor of the state of Wyoming declared the Rawhide subdivision a disaster area and thereby activated the state emergency operation plan to help coordinate the emergency assistance to persons living in the Rawhide subdivision. In response to a drilling program conducted by the DEQ within the subdivision, the county commissioners passed a second resolution on July 3, 1987, ordering the immediate evacuation of those persons residing near the drilling sites, which included the plaintiff. This is the resolution about which the plaintiff now complains. The commissioners passed it after determining that the DEQs drilling augmented the gas danger to the Rawhide residence. To enforce this order, the DEQs drilling augmented the gas danger to the Rawhide residence. To enforce this order, the commissioners ordered that the Campbell County Sheriff’s Office erect supervised roadblocks at the entrances to the evacuated parts of the subdivision. The county therefore physically deprived the plaintiff, at least temporarily, of all use of his property. The plaintiff, who operated a small business in his home, refused to leave until July 6. ... After attending a meeting with the county commissioners the next day, on July 7, the plaintiff attempted to return to his home, but was arrested by sheriff deputies when he traveled through a barricade to the entrance of the subdivision. The plaintiff spent the night in jail and was released the following day. ... In [this] action, the plaintiff initially must show that the conduct about which he complains was committed by a person acting under color of state law and that the conduct deprived him

Chapter 17 l Evacuation  309

of rights, privileges, or immunities guaranteed by the constitution or laws of the United States. ... It is undisputed that in passing the resolutions at issue, the defendants acted under color of law. They hold their positions as county commissioners by virtue of state law and as such are in positions of considerable authority. Thus the court must focus on whether the defendants deprived the plaintiff of a federally secured right .... The plaintiff asserts that the defendants’ resolution requiring that he evacuate his residence deprived him of property without procedural due process of law because presumably it was passed without any notice to him and an opportunity for him to be heard. ... [P]laintiff has not been deprived of a federally secured property right because the defendants took his property during an emergency for which the state of Wyoming plainly provides an adequate post-deprivation remedy. [The remedy is that plaintiff can file an action for damages based on the government’s usage of his property without payment to him, although he might not prevail.] In his brief, the defendant asserts that the emergency exception rule is unavailable to the defendants because there was in fact no emergency. The plaintiff’s assertion, however, is belied by his prior complaint against Amax Coal Company, where in his amended complaint he alleged that “since the presence of gas is in significant amounts was noted in early 1987, the plaintiffs have suffered damages in the form of property losses, personal injuries, and consequential emotional injuries. The combined actions of the defendant [Amax Coal Company] have resulted in a total devaluation of all property values in the Rawhide subdivision and surrounding areas.” According to the complaint in the prior lawsuit, the residents of the Rawhide subdivision began to notice in early 1987 “significant seepage of methane and hydrogen sulfide gasses from the ground into and around their residences” (emphasis added by the court). By July 1987 another poisonous gas, hydrogen selenide, also was confirmed to be seeping from the ground into the subdivision. In their opposition to Amax’s motion for summary judgment, the plaintiffs argued “that as a group the emotional distress suffered by Rawhide residents has surpassed that of the victims of some of our country’s best known technological disasters.” ... Alternatively, the plaintiff argues that even if there was an emergency, the county commissioners lacked the police power to order an evacuation. In Wyoming, a county is a political subdivision “of the state created to aid in the administration of government and is not a sovereign entity” and has only those “powers expressly granted by statute or reasonably implied from powers granted.” The state of Wyoming has inherent police powers to protect the public health, safety, and welfare, which it clearly may delegate to its political subdivisions. ... The ... Wyoming Disaster and Civil Defense Act grants broad police powers to political subdivisions to protect the public health, safety, and general welfare in times of emergencies. The Act contemplates “joint participation by local, state, and federal governments in emergency and disaster services.” By implication, Wyoming’s Disaster and Civil Defense Act grants broad police powers to counties to enact measures protecting the public in times of disasters. It provides in relevant part that “any political subdivision … complying with or reasonably attempting to comply with [the Civil Defense Act], or any order … promulgated … pursuant to … precautionary measures enacted by any political subdivision of the state is not liable for the death of or injury to persons or for damages to property as a result of the activity….” (Wyo. Stat. § 19-5-113(a)). A county is a political subdivision. This provision provides governmental

310  THE LAW OF EMERGENCIES

immunity to counties for damages arising out of their activities relating to the performance of civil defense functions. Without limitation those functions include the following: The coordination of firefighting services, police services, medical and health services, rescue, engineering, attack warning services, communications, radiological defense, evacuation of persons from stricken areas, ... together with all other activities necessary or incidental to the preparation for any carrying out of the foregoing functions… (Wyo.Stat. § 19-5-102(a)(i)). ... ... The court concludes that counties have emergency police powers under the Wyoming Civil Defense Act, which clearly include the power to order an evacuation of an area within the county stricken by a disaster of natural causes such as the seepage of lethal gasses. ...

Police Power “Police power” does not refer to the authority of law enforcement. Indeed, the phrase is so old that it is difficult to pinpoint its exact origin or to give it a precise definition. The Maryland Law Encyclopedia offers a typical description: “the police power is the power inherent in the state to prescribe, within the limits of State and Federal Constitutions, reasonable regulations necessary to preserve the public order, health, comfort, general welfare, safety, and morals.” It is often considered to be an inherent attribute of state sovereignty under the Tenth Amendment.

Judgment Calls Making the decision about when, precisely where or even whether to evacuate—if, for example, weather forecasts are uncertain—can be a difficult judgment call for public officials. For that reason, an evacuation order issued in good faith is a paradigmatic example of the kind of policy decision that is insulated from retrospective scrutiny. (You will learn more about the concept of a discretionary function exception from liability for causing harm in Chapter 19.)

Thames Shipyard and Repair Co. v. United States U.S. Court of Appeals for the First Circuit, 2003 Campbell, Senior Circuit Judge. ...On the morning of November 2, 1997, the NORTHERN VOYAGER, a 144-foot fishing vessel, was proceeding a few miles off the coast of Gloucester, Massachusetts, when crewmen discovered water flooding a compartment in the ship’s stern. The flooding, which resulted when the starboard rudder dropped out of the vessel, was severe and the crew immediately began trying to pump out the water. Despite the crew’s best efforts, the water level in the compartment continued to rise, threatening to flood the boat’s engine room. If the engine room flooded, all of the NORTHERN VOYAGER’s electrical pumps and generators located inside would be rendered useless.

Chapter 17 l Evacuation  311

The situation was such that the master of the NORTHERN VOYAGER, Captain David Haggerty, radioed Coast Guard Station Gloucester, told them that “[w]ater [was] coming in fast,” and requested that they “get some pumps out to [the ship].” To complicate matters, a storm had passed through the area the night before, leaving swells of roughly six to eight feet. Station Gloucester (under the command of Chief Warrant Officer Wesley Dittes) responded immediately by launching a 41-foot boat, to be followed shortly thereafter by a 47-foot one. The Coast Guard also diverted a 110-foot cutter, the ADAK, to assist as On Scene Coordinator. Coast Guard Group Boston, which is organizationally superior to Station Gloucester, assumed the role of Search and Rescue Mission Coordinator. The 41-footer arrived on the scene at approximately 9:15 a.m. and immediately evacuated eight crew members who apparently requested to leave the NORTHERN VOYAGER, leaving on board of the original crew Captain Haggerty, the engineer, and the first mate. Two Coast Guardsmen, Petty Officers Adam Sirois and Brian Conners, boarded the NORTHERN VOYAGER and attempted to assist in continuing efforts to remove water from the ship using extra pumps supplied by the Coast Guard. Although what was done slowed the rate of water accumulation, the flooding continued and the NORTHERN VOYAGER began to develop a port side list. As the NORTHERN VOYAGER rolled and began to list, Coast Guard Officer Dittes (aboard the 47-footer), Group Boston, and the On Scene Coordinator began discussing the possibility that the vessel would need to be evacuated. Several factors worried Dittes. His most immediate concern was that the vessel’s port side tilt made both access to and escape from the NORTHERN VOYAGER more difficult. This is because the fishing boat’s only access port, a door from the shelter deck through which the crew boarded and departed from the boat, was on the starboard side. As the fishing boat tilted more and more to port, the starboard side was raised higher and higher off the surface of the water. No less worrisome was his concern about progressive flooding, which was causing the vessel to settle further in the water, with the danger that the boat would capsize without warning before it sank, trapping anyone aboard before they could be rescued. Based upon these concerns, Dittes’s conversations with NORTHERN VOYAGER crew members who had already boarded the 47-footer, and the continual progression of the flooding, Dittes ordered his men to evacuate the NORTHERN VOYAGER’s remaining crew members. Captain Haggerty opposed the Coast Guard’s decision to evacuate his vessel and wanted to talk about other options for pumping and salvage, including commercial salvage. Dittes and Conners refused to discuss any other options for salvage aboard the NORTHERN VOYAGER, and, again, ordered Haggerty and his men off the boat. According to Captain Haggerty, Conners informed him that if he did not cooperate, the Coast Guard would “subdue [him] physically” in order to take him off the NORTHERN VOYAGER. All Coast Guard personnel and the remaining NORTHERN VOYAGER officers were then transferred to the Coast Guard 47-footer. The NORTHERN VOYAGER was abandoned at 10:27 a.m., continued to sink, and capsized at 11:22 a.m., fifty-five minutes after the last person left the vessel. ... According to plaintiffs’ experts, there were various steps that Captain Haggerty and his senior crew could have taken to stabilize the situation if the Coast Guard had permitted them to stay on the vessel. These steps included shutting certain doors and making them watertight so that the flooding was confined to two compartments in the stern of the boat. If these steps had been taken, plaintiffs’ experts asserted, the vessel could have floated for at least another twenty

312  THE LAW OF EMERGENCIES

hours even assuming that no pumping capacity was brought to bear. This would have provided ample time for independent salvage resources to reach the vessel, even if they had to come from as far away as Boston. While Coast Guard rescue efforts were underway, radio traffic about the NORTHERN VOYAGER was overheard by a commercial salvor named Michael Goodridge based in Newburyport, Massachusetts. At 9:03 a.m., just minutes after Captain Haggerty first radioed for Coast Guard assistance, Goodridge placed a telephone call to Station Gloucester. He told them that he had dive gear and pumps and asked whether they needed assistance. Station Gloucester responded that they were busy and they were going to “handle it.” ... Himself a diver, Goodridge, who continued to monitor developments over his radio, recognized that the “vessel was going to need a diver to correct the problem.” Accordingly, he began loading up his truck. At 9:15 a.m., Goodridge placed a telephone call to Cape Ann Divers to see if anyone was available to assist him. At 9:33 a.m., he reported to Station Gloucester that he was en route, with diving gear, and that his estimated time of arrival was one hour. At 10:03 a.m., several minutes before the decision to evacuate was made, Goodridge hailed Station Gloucester on radio channel 16. He was told to switch to channel 12, a frequency not being used by anyone on the scene. Goodridge stated that he was boarding a vessel at Cape Ann Marina, and asked if he should bring extra pumps or whether just diving assistance was necessary. Station Gloucester responded that it “wasn’t sure,” the situation was unstable, and it needed to keep “[the] frequency clear.” Goodridge interpreted this to mean that he shouldn’t tie up the channel. He stated that he would be there “in a little bit,” and he got off the radio. Shortly thereafter, everyone was evacuated from the NORTHERN VOYAGER. ... According to plaintiffs’ expert, Goodridge was in a position to reach the NORTHERN VOYAGER by 10:50 a.m., well before it sank. Goodridge stated at his deposition that he had the skill and equipment necessary to dive under the NORTHERN VOYAGER and plug the hole formerly containing the rudder post, and the task would have taken him only a couple minutes. However, he needed to talk to somebody in the NORTHERN VOYAGER crew before making such an attempt in order to find out if the engines were running. Without this knowledge, it was too risky to dive near the propellers, as he would have had to do to plug the rudder tube. Captain Haggerty stated that he did not know any commercial salvors in the Gloucester area and thought that the Coast Guard was working on getting commercial assistance. At no time before the captain was put ashore in Gloucester, however, did he learn, nor was he told by the Coast Guard, that a salvor was approaching with additional pumps and with dive gear. If the captain had been in contact with Goodridge and had been made aware of his concerns about the engine running, the captain would have shut off the engines before evacuating, rigged a Jacobs ladder in order to facilitate a possible return to the boat, and communicated this information to Goodridge. Northern Voyager, its insurers, and Thames Shipyard brought this action in the District of Massachusetts against the United States alleging that the sinking of the NORTHERN VOYAGER was due to the negligence of the Coast Guard. Plaintiffs’ primary contention was that the Coast Guard exceeded its authority by coercively compelling the NORTHERN VOYAGER’s master to leave the vessel against his will. ...

Chapter 17 l Evacuation  313

The United States contended that the Coast Guard was legally authorized to issue the evacuation order by virtue of the broad search and rescue powers conferred upon the Coast Guard by Congress under 14 U.S.C. § 88 [hereafter, § 88] to “perform any and all acts necessary to rescue and aid persons …” ... [The plaintiffs’] argument requires us to determine whether § 88, which provides inter alia that the Coast Guard may perform “any and all acts necessary to rescue and aid persons and protect and save property,” permits the Coast Guard, when it deems such action necessary to protect lives, to compel an unwilling master to evacuate his vessel. This is a novel question in that, while similar events may have arisen in the past, no federal cases interpreting the Coast Guard’s powers in this regard appear to exist in the law books, nor have any specific regulations been promulgated on the subject by the Coast Guard. Moreover, the legislative history of § 88 does not address this particular issue. On the one hand, the statute’s literal language (empowering the Coast Guard to “perform any and all acts necessary to rescue and aid persons …”) can be said literally to encompass such action. On the other, in our democratic society the circumstances are limited in which governmental officials may legally compel people, against their will, to abandon their homes or other private property. If it were unconstitutional or contrary to clear law for the Coast Guard to rescue unwilling mariners in life-threatening situations, we would be loath to read such authority into § 88. Given the dearth of federal authority, we turn to state law and practice in analogous rescue situations for guidance. Almost every state in the United States has adopted statutes providing for the exercise of police powers in the event of an emergency or disaster (such as fire, flood, tornado, hurricane, etc.). Most of the state statutory schemes provide that the governor of the state has the ability to declare an emergency. “Further, most of the states also allow the exercise of emergency or disaster authority by a local government.” One of the most common forms of authority exercised in an emergency is the mandatory evacuation of buildings, streets, neighborhoods, and cities. In some states, there are statutes that expressly delegate to local safety officers the authority to order evacuations in an emergency. In other states, where the issue is not expressly addressed in any statute, the authority of a safety officer to order an evacuation has been inferred from a statute delegating general authority “to preserve the public peace.” See, e.g., Ohio Op. Atty. Gen. No. 87-099 (reasoning in this way and opining that a sheriff “may order the evacuation of persons residing … in the vicinity of a hazardous materials accident or emergency, when reasonably necessary for the protection of the health, safety, and well-being of such persons” and “may, in a reasonable manner, remove to a safe area any persons who refuse to evacuate voluntarily”). The Coast Guard is a governmental agency and has been granted by Congress a variety of public safety responsibilities and powers, including, of course, the specific power under discussion to rescue and aid persons and property. In exercising its rescue powers, it construes its own role as giving priority to the saving of lives over the saving of property. In circumstances such as the present, Coast Guard operations are relevantly different from the situation in which a private vessel or a commercial salvor comes to the aid of a distressed vessel. Under the circumstances, we think it reasonable to assume that Congress, in granting the Coast Guard the broad authority to undertake “any and all acts necessary to rescue and aid persons and

314  THE LAW OF EMERGENCIES

protect and save property,” intended to confer powers analogous to those commonly possessed by state public safety officials, namely, the power to rescue a person even against his will in lifethreatening circumstances. We do not, however, accept that the phrase “any and all” gives the Coast Guard carte blanche authority to engage in forcible evacuations in less than life-threatening emergencies. A forcible evacuation from a private vessel constitutes a seizure of the person. Under the circumstances, the body of case law developed under the “emergency aid” exception to the Fourth Amendment’s warrant requirement both lends support for evacuation authority and cabins it. That exception requires an objectively reasonable belief by safety officers that a true emergency exists and there is an immediate need for assistance or aid. In situations as the present, where we are satisfied that such a life-threatening emergency could reasonably be found to exist, the Coast Guard possessed under § 88 the discretionary authority to order (or not order) a forced evacuation. Within the scope of that discretionary authority, we hold that the Coast Guard could not be held liable for the consequences of its decision. ...

Critical Thinking The court said that the Coast Guard had “the discretionary authority to order (or not order) a forced evacuation.” This means that the outcome at the time could have been the opposite, and there would have been no liability for that either, if damages had occurred or there had been harm to the crew. Is that a good legal rule? Can you propose a realistic alternative?

Statutory Authority of State Officials The much more typical scenario unfolds not on the high seas, but in defined locales, and the governmental entity at issue is not federal authority to order an evacuation, but the authority of state and local officials, as in the Miller case above. Every state provides its officials with the authority to issue evacuation orders. As is so often true when dealing with state law, however, there is enormous variance from state to state as to the precise scope of authority and the extent of enforcement power. Identify the different issues raised by the language in the following examples: North Carolina—The Governor has the authority, during a declared disaster, to “direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state; to prescribe routes, modes of transportation and destinations in connection with evacuation; and to control ingress and egress of a disaster area, the movement of persons within the area, and the occupancy of premises therein.” (G.S. 166A-6(c)(1)). Texas—A county judge or mayor of a municipality who orders an evacuation “may compel persons who remain in the evacuated area to leave and authorize

Chapter 17 l Evacuation  315

the use of reasonable force to remove persons from the area” (Tex. Government Code §418.185(b)). Illinois—During a declared disaster, the Governor has the power “to recommend the evacuation of all or part of the population from any stricken or threatened area within the State if the Governor deems this action necessary” (2ILCS 3305/7 (a)(6)). North Dakota—In the absence of an emergency declared by the Governor, “a local disaster, emergency, or mandatory evacuation order may be declared only by the principal executive officer of the county or city. It may not be continued or renewed for a period in excess of seven days except by or with the consent of the governing board of the county or city. Any order or proclamation declaring a local disaster, emergency, or mandatory evacuation must be given prompt and general publicity and must be filed promptly with the county or city auditor” (N.D. Century Code 37-17.1-10). Georgia—[I]n the event of disaster or emergency beyond local control, [the Governor] may assume direct operational control over all or any part of the emergency management functions within this state (Ga. Code Ann. §38-3-22(a)).

Critical Thinking Most states allocate some authorities to local as well as state officials, but many are not specific about precisely who has which power at what time. Recall that during Hurricane Katrina, the Governor of Louisiana and the Mayor of New Orleans both ordered evacuations, but at different times. How would you draft a law to specify the division of labor more clearly?

Is “Mandatory” a Myth? In the Texas statute quoted above, there is clear authorization for the use of “reasonable force” to effectuate an evacuation order. In most states, the equivalent authority is found in criminal laws, such as the Maryland law that makes it a misdemeanor to fail to comply with an emergency order issued by the Governor (Md. Code Ann., Public Safety, §14-309). In some states, the penalties differ depending on whether the order was issued by the Governor or by local authorities. On the ground, though, the bigger question is whether enforcement is realistically possible or worth the use of resources, especially if a significant number of persons resist. Many experts advocate the use of coercive or quasi-coercive methods short of the use of physical force. A law that subjects persons who refuse to evacuate to monetary fines, for example, might be as effective in producing compliance (or more so) as one that authorizes arrest. North Carolina law provides that A person who willfully ignores a warning regarding personal safety issued by a law enforcement agency or emergency management agency during a disaster and places himself or others in danger because he fails to act as a reasonable person is civilly liable for the cost of a governmental rescue effort undertaken on the endangered person’s behalf. (NCGS §166-A15.1)

316  THE LAW OF EMERGENCIES

Other possible legal interventions include escalating penalties, based on prior refusals to evacuate, or a rule of civil liability that allows the community to recoup costs caused by a refusal to evacuate. Some tactics rely on psychology rather than law, such as asking resistors to furnish next of kin information in advance of a storm.

Duty as well as Discretion For persons with special needs, the law has recognized that evacuation plans must be structured and implemented in ways that take into account barriers that would, as a practical matter, impede those persons from being able to leave a dangerous area. Recall from Chapter 10 that courts have begun holding state and local jurisdictions to the standards set by DHS for services for those who have mobility or other impairments. In BCID v. Bloomberg, in a portion of the opinion not excerpted in Chapter 10, a federal district court evaluated how New York City addressed the needs of the disabled in its evacuation plans. Brooklyn Center for Independence of the Disabled (BCID) v. Bloomberg U.S. District Court for the Southern District of New York, 2013 [BCID and a number of individual plaintiffs, called “class members,” brought an action seeking to compel the City of New York to bring its emergency plans and policies into compliance with laws prohibiting discrimination against disabled persons.] The Mayor issued a mandatory evacuation order for the areas of the City most likely to be most affected by Hurricane Sandy—denominated Zone A—at 11:30 a.m. on Sunday, October 28, 2012. The Mayor directed residents of Zone A to evacuate by the end of the day. The City directed people who needed assistance evacuating to call 311. In advance of the evacuation order, Access-a-Ride was available to people with disabilities who made reservations at least twenty-four hours in advance. Paratransit began to shut down almost immediately after the evacuation order was issued on October 28, 2012, with the MTA website announcing that “[o]utbound Access-A-Ride trips” would be “scheduled only until 12 p.m…, and return trips [would] continue until 5 p.m.” Any trips scheduled to take place after that time were canceled. By contrast, subway service did not begin to shut down until 7:00 p.m. on October 28, 2012, and MTA bus service was not curtailed until at least 9:00 p.m. The NYPD requisitioned thirty MTA buses, and for several hours after public transit had shut down, police officers drove through the evacuation zone providing transportation to those who had no other way to evacuate. The buses traveled along a designated route, but also responded to calls for assistance via 311 and 911 as well as reports from patrol officers of people who needed help evacuating. The bus drivers were not instructed to ensure that the buses did not get too full to allow wheelchair users to access them, and no wheelchair users were evacuated in this way. The Homebound Evacuation Operation (HEO) began at 9:00 a.m. on Sunday, October 28, 2012, the same time the City’s shelter system opened, and was deactivated at 10:00 p.m. that same night. Those who called 311 after that time requesting evacuation assistance were advised not to leave their locations and to shelter in place. The HEO did not reopen after the hurricane passed.

Chapter 17 l Evacuation  317

The storm made landfall at approximately 7:30 p.m. on Monday, October 29, 2012, and by the night of October 30, 2012, it had subsided. In the immediate aftermath of the hurricane, the Fire and Police Departments conducted a search-and-rescue operation. The operation was limited to rescuing those in life-threatening situations. It did not aid those who were in need of evacuation assistance but otherwise safe. ... MTA buses resumed modified service on Tuesday, October 30, 2012 at 5:00 p.m., and bus service was as close to fully operational as possible by October 31, 2012. Subway service was partially restored on November 1, 2012. Access-A-Ride began offering limited paratransit service in cases of “medical necessity” on October 31, 2012, and resumed regular service on November 1, 2012, although it did not resume most transportation within Zone A for several more days. There is substantial evidence that people with disabilities were stuck in high-rise buildings after the storm. For example, MOPD Commissioner Calise testified that he received calls from people who were stranded in their buildings and, more generally, that it was “known” that people who used wheelchairs were stuck in high-rise buildings in the aftermath of Hurricane Sandy. ... Class member Kenneth Martinez, who relies on a motorized wheelchair for mobility and lived in Far Rockaway when Hurricane Sandy struck, testified that he became aware of the impending hurricane on Sunday, October 28, 2012, the day before it was to make landfall. Police officers directed him to an intersection where buses were gathering to transport evacuees. Although there were “four or five buses lined up at the intersection,” Martinez could not get on any of them because they were too crowded for him to board in his wheelchair. A bus driver told him that more buses would be arriving within ten to fifteen minutes. Martinez waited outside for twenty minutes, but no more buses came. He could not stay outside for any longer because it was raining, and he feared that his motorized wheelchair would short out in the rain. The following day, Martinez called 311 in an attempt to get evacuation assistance. He testified that although he began calling at 12:30 p.m., he could not get through until 4:00 p.m. The 311 operator informed Martinez that he would be put “on a list,” but that he would “have to wait.” Nobody ever came to assist him. That evening, flood water began to fill Martinez’s firstfloor apartment, and Martinez was scared that he “was going to drown.” With the water “so high” that his “head was almost to the ceiling,” Martinez began “banging on the ceiling, hoping that the neighbors would hear” him. They did—and were able to break a window into his apartment, swim inside, and rescue him. Class member Joyce Delarosa, who uses a wheelchair and relies on oxygen and lives on the east side of Manhattan, testified that during Hurricane Sandy, the power in her building went out, leaving her unable to power her oxygen concentrator or exit the building. She called 911 for evacuation assistance and was told that, “unless [she] was having an immediate medical crisis and need[ed] to go to the hospital,” she could not receive assistance. Because she did not think she needed to be in a hospital, but rather only needed to plug in her oxygen concentrator, she declined emergency assistance. She testified that she called 311 to request assistance evacuating her daughter, who also uses a wheelchair, but was told that the City would not provide evacuation assistance unless her daughter needed to go to a hospital. Eventually, Delarosa testified, the consequences of lack of oxygen became so severe that she did require medical attention, at which point she called 911 again. EMS came to her apartment, used a stair chair to evacuate her, and provided her oxygen. Delarosa testified that the only way she was able to convince the EMS providers to evacuate her daughter too was to lie and say that her daughter needed to go to the hospital as well.

318  THE LAW OF EMERGENCIES

Class member Melba Torres, who uses a wheelchair and lives on the Lower East Side of Manhattan, testified that after receiving an evacuation order, she sent her aide to investigate accessible transportation options, but that her aide reported to her that the buses being used to evacuate the people in her building were not wheelchair accessible. As a result, she did not evacuate and spent six days in her apartment without running water, heat, or electricity. At one point, Torres testified, a police officer came to her apartment, but the officer stated that she could not receive evacuation assistance unless she was having a medical emergency. ... Plaintiffs have proved that the City’s plans for evacuations, including its plans for the evacuation of multi-story buildings and its plans for transportation in the event of an emergency evacuation, are not in compliance with [federal and state laws prohibiting discrimination in program access based on disability]. The City maintains several plans intended to facilitate the safe evacuation of City residents and visitors during an emergency. For the most part, these plans assume that people will be able to exit their buildings unassisted and that they will evacuate using public transit. For many people with disabilities, however, these assumptions are flawed. People with disabilities may require assistance evacuating their buildings and accessible public transportation in order to reach an evacuation center. The City’s plans do not sufficiently accommodate either of these needs. Most glaringly, apart from the HEO, the City has no plan whatsoever for evacuating people with disabilities from multi-story buildings. The evidence at trial showed, however, that many people with disabilities cannot evacuate multi-story buildings on their own, particularly if a power outage has rendered elevators inoperable. The City’s witnesses testified that the City does not need to plan specifically for the evacuation of people with disabilities because it can accommodate all those who need evacuation on a case-by-case basis. But as the court held in CALIF v. City of Los Angeles [Chapter 10], such ad hoc accommodations “are both legally inadequate and practically unrealistic.” Instead, the evidence at trial, including testimony from the City’s own witnesses, demonstrated that the needs of people with disabilities, including the need for evacuation assistance, could only be accommodated through advance planning. “The purpose of the City’s emergency preparedness program is to anticipate the needs of its residents in the event of an emergency and to minimize the very type of last-minute, individualized requests for assistance described by the City, particularly when the City’s infrastructure may be substantially compromised or strained by an imminent or ongoing emergency or disaster.” With respect to its plans for evacuation of residents from multi-story buildings during an emergency, therefore, the City has failed to provide people with disabilities with meaningful access. This exclusion is magnified by the City’s failure to ensure the availability of sufficient accessible transportation in the event of an emergency. The City’s evacuation plans rely on public transportation, but there is no dispute that the vast majority of such transportation is inaccessible to people with disabilities under the best of circumstances. Further, the evidence at trial demonstrated that even transportation that is ordinarily accessible to people with disabilities is likely to be unavailable during an emergency. MTA buses, for example, which have two wheelchair-accessible seats, may be too crowded for people in wheelchairs to board. And paratransit requires a twenty-four hour advance reservation, which renders it almost useless in the event of a disaster that arises without warning. In addition, during Hurricane Sandy, paratransit began to shut down only half an hour after the Mayor issued the evacuation order, while subway and bus service remained open for at least eight more hours. Additionally, the City has no plans or agreements to ensure that paratransit—which is run by the MTA, a state agency, rather than by the City—remains open for a sufficient amount of

Chapter 17 l Evacuation  319

time after an evacuation order is issued to allow people with disabilities to evacuate; that it remain open for as long as other forms of public transportation to ensure people with disabilities have an equal opportunity as those without disabilities to evacuate; that paratransit operate without the need for reservation in the event of an emergency; or, indeed, that paratransit be available for evacuations at all. Nor does the City have any other plan to ensure the availability of accessible transportation in the event of an emergency. The point of preparing for a mass evacuation in advance is to ensure that, when an emergency strikes, there will be sufficient resources (and plans for the use of those resources) to enable those who need to evacuate to do so. But the failure to plan for accessible transportation virtually ensures that the opportunity of people with disabilities to evacuate will be unequal to that of individuals without special needs—that is, that the opportunity of people with disabilities to benefit from advance planning for evacuations is unequal to that of others. In short, because the City’s evacuation plans do not sufficiently account for the transportation needs of people with disabilities, people with disabilities lack meaningful access to those plans. The City’s failure to plan for the evacuation and transportation of people with disabilities is not remedied by the HEO—the only provision in the City’s evacuation plans specific to the evacuation of those with special needs. First, the City does not publicize the existence of the HEO, either in its emergency preparedness outreach or during an emergency. The program is meant as a “last resort.” The City therefore does not intend for people with disabilities to plan to use the HEO to evacuate during an emergency; indeed, given that the public is generally unaware that the HEO even exists, people with disabilities are effectively precluded from doing so. Thus the HEO does nothing to remedy the fact that people without disabilities are able to plan to evacuate via public transportation, whereas people who require accessible transportation are not informed in any meaningful way whether or how they may evacuate. Second, as discussed earlier, the HEO was originally designed for emergencies with advance notice, such as coastal storms. On the eve of trial (and perhaps because of the trial), the City incorporated the HEO into its Area Evacuation Plan, its plan for disasters that occur without warning, such as radiological incidents, major explosions, and terrorist attacks. But the HEO is not well suited for such incidents. It is dependent on advance warning and designed to begin—and end—even before the relevant emergency occurs. Even the City’s witnesses were hard pressed to explain whether, or how, the HEO could be implemented in the event of a no-notice emergency event. Thus the HEO is little or no help to people with disabilities in a disaster that occurs without warning. Third, even in those emergencies in which the HEO can be implemented, there is no evidence that, as currently resourced, it has the capacity to evacuate all those who might require assistance. The City has not determined how many people might require evacuation assistance through the HEO, and therefore cannot know whether the resources available are sufficient. And finally, the effectiveness of the HEO is limited by its dependence on the 311 system. There is no other way for those who require its assistance to access it. As demonstrated during Hurricane Sandy, however, the 311 system is unreliable during an emergency: some people may be unable to reach 311; some may not have sufficient power in their cellphones to wait for an operator; and others may lack telephone service entirely. Thus, the HEO cannot remedy the fact that although the City’s evacuation plans are intended to apply to all residents, the plans plainly—and unlawfully—fail to take into account the special needs of people with disabilities. Hurricane Sandy dramatically demonstrated the consequences of this failure. Plaintiffs provided substantial evidence that people with disabilities, unable to leave their buildings unassisted or to locate accessible transportation, remained trapped in highrise buildings for days after the storm. ...

320  THE LAW OF EMERGENCIES

Other Law and Policy Issues Other special needs concerns in the context of evacuation include: Adequacy of Warnings and Information—Especially for disabled persons and persons with limited English language proficiency, reliance on television or Internet communications may be insufficient. Many communications issues can be solved with technology; the key to avoiding liability or harm to innocent people is planning for how to address these needs in advance of sudden or oncoming disaster. Some states maintain a voluntary registry of persons who need additional assistance in emergencies, to ensure that they are contacted in the early stages of an evacuation. Accommodation of Service Animals or Pets—After Katrina, researchers learned that a significant number of persons who resisted evacuation, and did not have private vehicles, did so because they were told that they had to abandon their animals. Congress enacted legislation in 2006 that required emergency response plans to include arrangements for the shelter and care of service animals and pets.

Summary Evacuations are both one of the most common and one of the most complex operations that can occur during an emergency or any form of disaster. Although there are relatively few restrictions on good faith evacuation orders, there are duties to structure the implementation of such an order around—and thus to consider when developing the operational plan to be used—the needs of persons with impairments that limit their capacity to self-evacuate.

Important Terms Mandatory evacuation Quasi-coercive methods ● Police powers ● ●

Review Questions How has the role of federal law and policy increased vis-à-vis evacuation planning and implementation? Why do you think the increase has occurred?

18 A Dirty Bomb Explodes in Washington, DC Introduction This chapter offers a case study and exercise. The facts in the briefings and the scenario are grounded in science (but they are not intended to substitute for the most authoritative research). Obviously the narrative and many of the details are invented. The exercise encompasses only a small number of the many issues that would arise should a real attack occur. As you read the scenario, note what some of the most important additional issues would be if the event actually occurred.

Background Briefing: Radiological Dispersion Bombs (RDB) A dirty bomb—more precisely, a radiological dispersion bomb—is a relatively unsophisticated device that combines radioactive materials with conventional explosives. When exploded, such a device scatters radioactive particles into the environment. Anyone within the initial blast radius will probably be killed immediately, and more casualties could result from the long-term effects of the dispersed radioactive material. Almost all deaths and serious injuries would be confined to the immediate vicinity of the explosion. No nuclear fission reaction takes place as would occur with a true nuclear weapon. The number of immediate fatalities from such a blast would not be increased by the presence of radioactive materials, unlike what would occur if even a crude nuclear device were detonated. However, widespread contamination exceeding Environmental Protection Agency (EPA) safety guidelines would be likely to result. The dust and debris generated by a dirty bomb explosion would land on the skin of the people closest to the explosion, and could then be inhaled, ingested, or absorbed through wounds. Radiation released by radioactive materials inside the body can damage the liver, ­thyroid, kidneys, and bones, as well as increase a victim’s chances of getting cancer. Victims might also be exposed to radiation from radioactive materials scattered nearby. An invisible radioactive plume could develop and carry small amounts of radioactive material to locations miles away; the direction that the plume would travel would depend on wind and weather conditions. To stop the exposure to radiation, victims would need to be decontaminated by removing irradiated clothing, washing the skin, and purging inhaled or ingested materials from inside the body. The surrounding area would also need to be decontaminated to remove radioactive The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00018-8 © 2018 Elsevier Inc. All rights reserved.

321

322  THE LAW OF EMERGENCIES

material, prevent radioactive dust and debris from spreading, and protect food and water supplies. The effects would be most damaging to survivors who had been closest to the explosion: about 1 in 100 survivors in the area less than a half-block from the source would die of cancer. People a half-mile to a mile from the blast would be in contaminated areas, but probably not seriously affected. Most experts say that except for people in the immediate area of the blast, the odds are against anyone absorbing enough radiation to suffer long-term effects, such as radiation poisoning or cancer. Applying its safety guidelines, the EPA would probably recommend the long-term evacuation of the contaminated area, approximately half a mile to a mile from the blast. With urban areas especially difficult to decontaminate after a radiological attack, any abandonment could be permanent, potentially costing trillions of dollars. In addition to this economic damage, a dirty bomb attack would also be likely to produce a psychological effect out of proportion to the actual physical damage it would achieve on its own. Experts who have run simulations of dirty bomb attacks have warned officials to expect large-scale panic reactions by the public.

THE GOIÂNIA, BRAZIL INCIDENT On September 13, 1987, two scrap metal scavengers broke into an abandoned radiotherapy clinic in Goiânia, Brazil, and removed a source capsule from the protective housing of a teletherapy machine. The International Atomic Energy Agency (IAEA) estimates that the source capsule contained 1375 Ci of cesium-137 chloride (137CsCl) in soluble form. The capsule had been abandoned when the clinic moved to a new location two years earlier. Both men became sick almost immediately. They assumed that the vomiting and diarrhea was caused by bad food they had eaten. Five days later, one of the men punctured the window of the source capsule, allowing the powder to leak out. This was the critical event that sparked the most serious consequences. That same day the assembly was sold to a junkyard owner. That night the new owner saw that the powder glowed blue. Intrigued by the glowing blue material, he took the capsule into his house to show it off to his family and friends. He gave fragments away, and several people sprinkled or rubbed the material on their bodies as they might have done with the glitter used for Carnival. On approximately September 21, the wife of the junkyard owner became ill with symptoms of acute radiation sickness. Her mother nursed her for two days, and then returned to her home outside Goiânia, taking a significant amount of contamination with her. Over the next few days, two employees at the junkyard disassembled the structure; both died. One of the thieves had become ill enough to be admitted to a local hospital. On September 24, a six-year-old girl played with the colorful source powder, painted it on her body, and ate a sandwich while her hands were contaminated. She was massively internally contaminated and died a month later. The correct diagnosis of acute radiation sickness was made September 28 after the owner’s wife and an employee at the junkyard took the remnants of the rotating assembly to a doctor’s office at the clinic of the Vigilancia Sanitária. They carried the material in a plastic bag and took a public bus to the clinic, thus contaminating the bus and exposing other passengers to the cesium. Acting on the diagnosis and in partnership with a team from the IAEA, Brazilian authorities monitored over 112,000 people in an Olympic-sized soccer stadium for radiation exposure and sickness. Radioactive contamination spread throughout Goiânia and even reached Rio de Janeiro.

Chapter 18 l A Dirty Bomb Explodes in Washington, DC  323

For several days, nobody remembered to decontaminate the ambulances used to transport some of the sickest victims from the Rio airport to the naval hospital there, which had the country’s primary facility for the treatment of radiation sickness. According to the IAEA report on the incident, a total of 249 people were identified as contaminated by the Cesium-137; 151 people exhibited both internal and external contamination; and 49 people were admitted to hospitals. The internally contaminated patients were themselves radioactive, seriously complicating their treatment. In the end, 28 people suffered radiation burns and five people died. There was also a major economic impact: as a result of the incident, it became impossible for farmers in the region to sell their produce, and the economic damage was severe.

The Scenario Unfolds It is lunchtime on a lovely spring Wednesday in Washington, DC. As is always true in the spring in DC, when hundreds of schools schedule class trips to the capital, a line of yellow school buses is parked near the Mall. Nearby, members of Congress and their staffs are working. Across the street from the far side of the Capitol, the Supreme Court is in session. At 12:45 p.m., a school bus parked at the foot of Capitol Hill (see Fig. 18-1), close to the National Gallery of Art, explodes with a deafening roar. The carnage is instant. Bodies and body parts are scattered on the ground near the detonation point. Some of the survivors are crying or screaming; others are dazed. The National Gallery of Art has collapsed, as has a portion of the west front of the Capitol. Several other buildings and vehicles are burning. In the surrounding blocks, thousands of people heard the blast and felt what seemed like an earthquake. Within a few minutes, the sound of sirens fills the air, as police, fire, and ambulance crews rush to the scene. Special security agents ­surround members of the Congressional leadership and Justices of the Supreme Court. A dozen blocks away, the President and other high-ranking officials are whisked into a top-secret bunker. In a municipal building not far from the White House, the Mayor is also taken to a secure location. Five minutes after the blast, a bulletin is broadcast on the emergency radio frequency shared by first responders: radiation sensors in the area of the explosion have spiked. Initial reports estimate that the bomb contained approximately 1000 curies of Cesium-137. Responders are instructed to wear hazmats gear at the scene. Many of the responders rushing to the scene do not have such gear; some of those turn back. As the crews start to arrive, the surviving victims see persons clad in “moon suits” emerging from ambulances and walking toward them. Many of those who can, begin to run. Reports have come in from the scene that survivors with minor or no injuries are being told to wait for special decontamination tents—which contain mobile showers—to arrive. However, many are not obeying. The police department has just begun the process of closing off streets in a one-mile radius around the blast. but it lacks the necessary personnel to complete this assignment. The metropolitan transit authority has issued orders to close all subway stations in the downtown area and to direct all buses and subways that are now operating to transport passengers to stops at least two miles from the blast site. Some people are breaking through police lines, and police are unsure how much force they can use to stop those trying to escape the cordon.

324  THE LAW OF EMERGENCIES

FIGURE 18-1  Capitol Hill in Washington, DC.

Chapter 18 l A Dirty Bomb Explodes in Washington, DC  325

You are a member of the incident command legal council, which includes representatives from multiple federal and local agencies. For purposes of this exercise, assume that the District of Columbia is the equivalent of a state and that the mayor has the same powers that a governor would have. You can also assume that the Federal Bureau of Investigation will take the lead role in investigating the criminal aspects of what has occurred.

WHAT ACTIONS SHOULD THE MAYOR TAKE NOW? Assume that DC has laws authorizing the Mayor to declare a state of emergency. What are the most important goals to be achieved now? What kinds of further action would a state of emergency declaration enable? What other actions should the Mayor take? Consider: ● ● ● ●

Activating EMAC Calling out the state’s National Guard units Requesting assistance from the federal government Are there legal issues that need to be addressed with any of these possible actions?

WHAT ACTIONS SHOULD THE FEDERAL OFFICIALS TAKE NOW? What options does the President have for declaring different types of emergency? What are the differences between them? Into what category or categories of federal emergency does a dirty bomb attack fit? Should the President deploy troops to the scene? Can he deploy troops? Should martial law be declared? What criteria would you recommend that the President use in deciding when, if at all, to invoke martial law? Can the Secretary of Health and Human Services declare a public health emergency? On what basis? Have the criteria for such a declaration been satisfied? What about the Secretary of the Department of Homeland Security? What should his initial actions be? For each decision, what legal consequences will ensue?

Meanwhile, the news media have broadcast the news that the blast was a dirty bomb and that the best thing that people in the “hot zone” in downtown DC can do is to go inside and shelter in place until they are directed through the decontamination process. Mobile ­decontamination units, in which people can undress, shower, and change into unisex shirts, pants and disposable shoes, are being set up at the exit points from the police cordon. Most are obeying instructions. Response units from Maryland and Virginia have begun to arrive. Several more workers whose units lacked protective equipment have refused to obey orders to go into the hot zone, and they have been fired. A special RDB squad from a nearby Army base has brought additional

326  THE LAW OF EMERGENCIES

decontamination equipment into the District and is operating several of the units through which people are being processed. Army personnel have also begun questioning certain of the people passing through a checkpoint on the Mall about what they know about the blast. Outside the hot zone, traffic has overwhelmed many streets as thousands of people try to flee the area. Police have closed some streets to all but emergency traffic. Hospitals in the immediate area are struggling to accommodate casualties being brought in by ambulance or private car, as well as a number of people who are simply walking into the emergency room. One person who was driving two friends to the hospital who had been injured in the blast caused a multi-car accident, in which two other people were killed. Because the attack occurred so close to Congress and the Supreme Court, news media have begun speculating on what measures will be taken to protect those institutions. The Majority Leader of the Senate was giving a speech at an outdoor rally on Capitol grounds when the bomb exploded, and his death has been confirmed. The Capitol sustained structural damage from the attack, but is still standing. Other buildings appear uninjured. No members of Congress or Justices have been seen since the attack. The President has just addressed the nation and urged people to remain calm. No other attacks have occurred, and no one has claimed “credit” for this one.

CONTINUING QUESTIONS A disagreement has arisen about the firing of the first responders who refused to enter the hot zone without protective equipment. Should they be quickly reinstated and furnished with equipment or should the firings stand? What legal issues might be implicated? The situation at hospital emergency rooms is getting dangerous, in part because the hospitals do not have enough special equipment for treating persons suffering from radiation burns. They are also short on personnel, a situation made worse because some hospital workers are refusing to come into contact with these patients. What legal options could apply here? Can the hospitals close their emergency rooms to new patients? Can the government take over the hospitals, most of which are private? Can makeshift emergency treatment locations be set up, and where? How can additional medical staff be obtained? Can the workers who are refusing to participate in providing care be forced to do so? Already, some physicians and nurses from Delaware and Pennsylvania have started to appear at area hospitals, volunteering to assist. Is there any problem with this? Can National Guard troops be used to guard the perimeter that has been set up around the hot zone? Should the President revisit the question of martial law?

Planes are arriving at Andrews Air Force Base near Washington containing several thousand doses of Radioburnase that have been shipped from the Strategic National Stockpile. Radioburnase can be very effective in purging the body of cesium contamination, but only if it is administered within four hours of exposure. It is now 2:30 p.m. A decision must be made immediately about how and where the drugs are dispersed.

Chapter 18 l A Dirty Bomb Explodes in Washington, DC  327

LAW AND ETHICS Members of Congress have been gathered in a few locations in basements of the congressional office buildings and have gone through the showers-and-fresh-clothes decontamination process; the same process has occurred with Supreme Court Justices. Staff members have been processed separately. Approximately 550 doses of Radioburnase will be sufficient for members and Justices. (Anyone working at the White House is already being treated.) Approximately 3000 congressional and Supreme Court employees also have been told to wait for treatment. However, there are tens of thousands of other affected people, including some highranking government officials at other agencies. Hospitals within DC are in crisis mode, and some patients are starting to appear at suburban hospitals. Hundreds of first responders are at risk. These people, however, are geographically scattered. What principles should govern the distribution of Radioburnase?

At the decontamination unit on the Mall being run by Army troops, certain “suspicious” persons are being detained for extensive questioning. It appears that only persons who cannot speak English and those with Arabic names are being held. The next day, a habeas corpus petition on their behalf is filed in local court. Also on the next day, the scientific back-up team has briefed the legal council with a map of the bomb’s impact, given the weather conditions, measured in concentric circles out from the detonation point (see Fig. 18-2). Virtually everyone who was in the small area closest to detonation is dead, as are many people in the second circle. The third circle represents the ­official contamination zone, where the buildings and grounds are assumed to require ­extensive “muck and truck”—digging and demolition followed by removal of the debris to a radioactive waste storage facility—if the area can ever be inhabited again. It is unclear whether that degree of physical rebuilding is feasible, despite the presence within the contaminated zone of the Capitol building, the Supreme Court, and the Library of Congress, as well as business and residential areas. The radioactive plume has drifted to the Maryland suburbs, a fact that the news media are highlighting. EPA and health officials begin a search of every building in the contamination zone. So far they have found a few corpses or stranded victims, but mostly they report finding illegal drugs and other contraband, which they are seizing with the plan to turn the items over to local police. Hospitals have been flooded with calls from people seeking news of loved ones who may have been injured or killed in the blast. DC Memorial Hospital released a list of all those whom it has treated for radiation burns. The first person on that list has already been notified that he is fired. Meanwhile, the press is reporting that the “good Samaritan” who caused yesterday’s accident while driving people to the hospital could lose his home because of lawsuits.

328  THE LAW OF EMERGENCIES

FIGURE 18-2  Predicted circles of destruction from a dirty bomb on Capitol Hill. Source: Congressional testimony of Professor Michael Kelly, Federation of American Scientists.

NEXT DAY QUESTIONS How should the habeas corpus petition be answered? Were these actions lawful? If police later seek to prosecute someone for possession of illegal drugs based on the evidence seized during the rescue sweep, will that prosecution stand? Should the hospital have released the names of its patients? Does the man who was fired have legal grounds to regain his job? What about the individual who caused an accident on the way to the hospital—does he have a legal defense if those who were hurt in the accident sue? Maryland residents who live closest to the District are demanding that the Governor of Maryland declare a health emergency in that state. What would be the advantages and disadvantages of doing so? Draft a statement for the Governor explaining the reasons behind whichever decision you recommend. As the District tries to recover, what will be some of the legal issues for the future?

Postscript: The Movie Version As a way to enrich this exercise—and just have some fun—watch Dirty War, a British film made in 2004 in which the story centers on a dirty bomb explosion in central London. Although it is fiction, the 90-minute film is so well done that a number of first responder agencies have used it in training. Does it suggest other legal issues?

19 Sovereign Immunity and Government Liability Introduction The focus of this chapter is on the question of whether and to what extent government should be required to pay damages to compensate persons who have been injured by its actions. The debate over sovereign immunity, as the relevant doctrine is called, dates from English common law. As we will see, American law incorporates both a sovereign immunity defense to lawsuits and the allowance of damages in situations for which the defense has been waived. However, if the action being complained of was the formulation of policy rather than a failure by officials to adhere to clearly established rules, recovery can be blocked on that basis. In other words, when plaintiffs seek money damages against the government, there must be a waiver of sovereign immunity for the lawsuit to be allowed. And even if there is a waiver, the lawsuit may be dismissed if the actions being complained of were discretionary or policymaking decisions by government officials. Many statutes that create waivers contain a discretionary function exception. The most widely used example is the Federal Tort Claims Act, which allows suits by citizens to recover damages for harm caused by government employees. In addition to learning the meaning of “sovereign immunity,” you will also learn the ways in which sovereign immunity law can determine issues of liability in emergency response and disaster management situations, how the law measures whether negligence has occurred, and how the legal system offers heightened protection for the actions that constitute policymaking.

The Sovereign Immunity Defense Sovereignty is one defining characteristic of an autonomous, independent government. In Federalist Paper No. 81, Alexander Hamilton noted that it is inherent in the nature of sovereignty that lawsuits in which individuals seek monetary damages from the sovereign are barred unless the sovereign has waived its defense of immunity. The rationale for the defense is the common interest in efficient government and prudent management of government funds. Yet there is also the competing concern that citizens be able to bring meritorious claims if they have been injured. As Professors Schuck and Park wrote: The legal uncertainties surrounding governmental responsibility for [injuries] c­ ommitted by its agents reflect a number of … values, includ[ing] society’s interests in encouraging government to act vigorously without undue caution, deterring unreasonably risky conduct, avoiding judicial control of discretionary and policy decisions entrusted to the politically accountable branches, protecting the public fisc from excessive claiming attracted The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00019-X © 2018 Elsevier Inc. All rights reserved.

331

332  THE LAW OF EMERGENCIES

by government’s uniquely deep pockets, and vindicating and exemplifying the rule of law. Striking a just balance among these goals has proven exceedingly difficult. As we know from Chapter 1, states are also considered sovereign entities. When the United States was created, each state retained much of its sovereignty, subject to the Supremacy Clause, which specifies that federal law will trump conflicting state law. One way that the Constitution recognizes this principle is reflected in the sovereign immunity provision of the Eleventh Amendment, which provides that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The Eleventh Amendment has a rich history: it was adopted in response to the Supreme Court’s 1793 decision in Chisholm v. Georgia, upholding the right of a South Carolina plaintiff to sue the state of Georgia over money that he claimed the state owed him for munitions supplied during the Revolutionary War. Georgia had argued that as a sovereign state, it could not be sued in court without its consent. The public outcry over the decision allowing the suit prompted the adoption of the Eleventh Amendment, which was meant to reassure those who feared encroachment on state power by the national government.

Injunctions Are Treated Differently Than Damages Although the Eleventh Amendment immunizes non-consenting states from suit for money damages, the Supreme Court has held that federal courts may enjoin state officials from violating federal law (Ex parte Young, 1908). An injunction is a legal order that directs a person to do or to refrain from doing a particular act. For instance, where a law is unconstitutional, a court may issue an injunction forbidding its enforcement.

The Eleventh Amendment bars suits against the states only in federal courts. Each state’s law includes a sovereign immunity defense covering actions filed in state courts, although the parameters of the defense vary by state. For example, most states include a provision regarding sovereign immunity in their disaster response laws. Some (such as Alabama) exempt from liability all emergency management activities, while others (such as Kansas) limit immunity to actions taken pursuant to a formal declaration of emergency. Sovereign immunity provisions are also often included in health emergency statutes.

Statutory Waivers of Sovereign Immunity Government immunity from suit is not absolute. Congress and all the state legislatures have enacted statutes that create waivers of the immunity defense for a certain category of lawsuits.

Chapter 19 l Sovereign Immunity and Government Liability  333

These waiver laws play an important role in keeping government accountable. They allow government actors to be sued for the same acts that, if a private person committed them, would constitute negligence. The primary waiver is in the Federal Tort Claims Act (FTCA), enacted in 1946, in which the federal government relinquishes its immunity for: injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (28 U.S. Code §1346(b)(1) (2000))

Each state also has a Tort Claims Act, most of which are worded identically to the FTCA. Waivers can also be found in topic-specific statutes such as civil rights laws or environmental laws.

Negligence The scope of the waiver in the FTCA is for a “negligent or wrongful act or omission.” Negligence—the fixing of responsibility for causing an injury—is a central legal concept in English and American law. In its simplest form, negligence can be defined as the failure to exercise appropriate care in circumstances in which the risk of harm is reasonably foreseeable. Defendants may be found negligent for their actions or for their failure to act. For negligence law to apply, there must have been an actual injury, and the injured person must be seeking to recover damages from the person who caused that injury. If a person behaves “negligently” but does not cause an injury—for instance, a drunk driver who makes it home without causing damage—there is no cause of action for negligence. If a drunk driver is stopped by the police, he or she may be charged with violating the law and face consequences for illegal behavior, but there cannot be a lawsuit for the driver’s “negligent” behavior unless there is harm to other people or property. To win a lawsuit for negligence, a plaintiff must establish several facts: that he or she suffered an injury which was caused by the defendant, and that the defendant had a legal duty not to cause the injury, which he or she breached. It is often relatively easy to establish an injury and damages. For example, a wrecked car and physical injury following a car accident can be proven by photographs, witnesses, doctor’s reports, and in many other ways. Causation may be trickier—if the drunk driver was following the traffic laws while the sober driver ran a red light, for instance, the court would find that the drunk driver did not cause the accident. The more complicated issue is usually establishing what the “duty of care” is in a given situation, so that the jury can determine from the facts whether the defendant breached it. The duty of care is expressed as a failure to exercise “reasonable care,” or to act as a reasonable person would in light of the risk that was foreseeable in the situation. In our drunk driving example, for instance, the breached duty requirement might be expressed as follows: when a

334  THE LAW OF EMERGENCIES

person drives a car, he or she has an obligation to the public, including other drivers, to exercise reasonable care in driving. This includes an obligation to use prescription lenses for eyesight problems, to obey traffic signals, to comply with the speed limit, and to take other normal precautions, certainly including the duty not to drive when intoxicated. Judge Learned Hand offered a succinct summary of reasonable care in the 1947 case United States v. Carroll Towing Co. He wrote that a court can determine whether reasonable care was exercised by looking at three factors: the probability at the time of the action or failure to act of an accident occurring; the gravity of the injury that resulted; ● the burden on the actor of taking the necessary precautions to avoid the injury. ● ●

Generally, as the severity of possible injury increases, so does the required level of care to avoid that injury. Statutes, regulations, building codes, and contracts also serve as sources of the standard of care. If a building’s electrical system is not up to code, for example, that will constitute a breach of the duty of care owed by its owners to occupants. The same is true of professional standards. As the Supreme Court of Georgia wrote, “[t]he law imposes upon persons performing architectural, engineering, and other professional and skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which generally is taken and considered to such a degree of care and skill as, under similar circumstances, is ordinarily employed by their respective professions” (Housing Authority of City of Carrollton v. Ayers, 1955). In some situations, a statute or code will set the minimal standards for reasonableness, but more may be required in order to avoid liability. Aslakson v. United States U.S. Court of Appeals for the Eighth Circuit, 1986 Fagg, Circuit Judge. Paul Aslakson [sued] the United States for the death of his son, Timothy Aslakson. Timothy was killed in a boating accident on Devils Lake, North Dakota, when the aluminum mast of his sailboat made contact with electrical power lines owned and operated by the Western Area Power Administration (WAPA), an agency of the United States government. Aslakson claims that the United States was negligent by failing to provide adequate vertical clearance between the power lines and the surface of the water. The United States denies any liability for the accident on the basis that its decision not to elevate the lines beyond the clearance provided is immune from a tort suit under the “discretionary function” exception to the Federal Tort Claims Act (FTCA)… WAPA transmits electrical power to fifteen central and western states. As part of its responsibility in the transmission of this electrical power, WAPA constructs and maintains its electrical power lines in accordance with the National Electric Safety Code (NESC). Rule 013B of the NESC states: “Existing installations, including maintenance replacements, which comply with prior editions of the Code, need not be modified to comply with these rules, except as may be required for safety reasons by the administrative authority.” … WAPA inspects and maintains these lines on a routine basis. WAPA has a local maintenance crew at Devils Lake that carries out monthly aerial inspections of the transmission lines.

Chapter 19 l Sovereign Immunity and Government Liability  335

Furthermore, ground inspections are conducted annually. As part of its responsibility, the maintenance crew is instructed to look for clearance problems caused by changed conditions and report any such clearance problems to the main office. The particular power lines involved in this case were constructed in 1950 to comply with the 1948 edition of the NESC. As originally constructed, the power lines provided a vertical clearance of 28 feet and passed over land rather than water. Later the water level of Devils Lake rose to such an extent that the lines crossed over an area of Devils Lake called Creel Bay. Motivated by a concern over what effect the rising water level of Devils Lake might have on WAPA’s power lines, several WAPA employees conducted a field review of the lake in 1979. The review team did not inspect the lines over Creel Bay but focused its attention on the lines that crossed the main part of Devils Lake. After its inspection the review team concluded that the height of the conductors over the water surface “could be a hazard to tall-masted sailboats on the lake.” Although several long-term solutions were suggested by the review team such as rerouting the lines and installing submarine cable, WAPA decided to elevate the existing lines over the main part of Devils Lake. Hence, in the spring of 1980 the power lines were retensioned to comply with the current edition of the NESC. The retensioned lines provided a vertical clearance of over fifty feet. WAPA took no action, however, either to increase the vertical clearance or to warn boaters of the power lines over Creel Bay. According to Vernon Hartwick, WAPA’s district manager of the Bismarck office, the power lines over Creel Bay were not considered a hazard, because of their remote location and because no reports or complaints had been received regarding their low vertical clearance. The accident occurred on June 20, 1982, while Timothy was sailing a Hobie Cat sailboat on the north end of Creel Bay. Timothy was severely shocked when the sailboat’s 26.5 foot mast made contact with WAPA’s power lines. Timothy’s body was later recovered in water that was approximately six feet deep… In this case, the United States invokes the [discretionary function] exception on the basis that its policy required only that its power lines meet the standards of the 1948 edition of the NESC. Because the district court found that WAPA’s power lines met the minimum vertical clearance requirements of the 1948 standards, the United States asserts that WAPA’s power lines were within the requirements of its own policy. We disagree… Under its policy, although WAPA is bound to the minimum vertical clearance requirements of the NESC in effect at the time of construction of its power lines, it must elevate those power lines to comply with revisions of the Code if safety reasons require such action. The United States claims that any decision by WAPA officials regarding the safety of its power lines is within the scope of the discretionary function exception. … We believe that such an expansive interpretation would result in the exception swallowing the rule. … WAPA’s policy clearly required it to elevate its power lines if safety considerations compelled such action. Where the challenged governmental activity involves safety considerations under an established policy rather than the balancing of competing public policy considerations, the rationale for the exception falls away and the United States will be held responsible for the negligence of its employees. For the government to show merely that some choice was involved in the decision-making process is insufficient to activate the discretionary function exception. The balancing of policy considerations is a necessary prerequisite. WAPA’s determination that the power lines over Creel Bay were not a safety hazard did not involve an evaluation of the relevant policy factors; rather it was a decision made by WAPA officials charged with the responsibility of implementing an already established policy.

336  THE LAW OF EMERGENCIES

Furthermore, WAPA’s policy does not allow its officials to choose a course of action they deem desirable if their power lines are dangerously low. The policy’s mandate is clear; WAPA must raise its power lines if they constitute a safety hazard. Although such a policy necessarily involves some degree of judgment on the part of government officials, it is not the kind of judgment that involves the weighing of public policy considerations. … Aslakson’s challenge to the governmental activity involved here goes not to the policy itself or to the manner in which WAPA chose to implement that policy. Furthermore, the challenged conduct is neither regulatory in nature nor administrative decision-making grounded in social, economic, or political policy. Rather, Aslakson claims WAPA officials were guilty of failing to comply with their own safety policy in the maintenance of their electrical transmission lines. This claim smacks of ordinary ‘garden-variety’ negligence, and the meeting by WAPA officials of their responsibility under the safety policy does not come within the scope of the discretionary function exception. By fashioning an exception for discretionary governmental functions, … Congress took steps to protect the Government from liability that would seriously handicap efficient government operations. We conclude that holding WAPA responsible for compliance with its own safety policy regarding its electrical transmission lines will not undermine its governmental function. Hence, the conduct of WAPA officials must be reviewed in accordance with North Dakota’s tort law standards. …

Critical Thinking The sovereign immunity defense and the waivers of it create a seemingly all-or-nothing framework for plaintiffs seeking to recover damages from the government. Are there other ways that the law could reflect the conflicting values underlying this debate? One example would be by capping the amount of damages that a plaintiff could recover. Can you think of others? For each, evaluate the pros and cons of whether they should be adopted.

Intentional Torts and Active Endangerment In addition to the negligence standards discussed earlier, states also recognize claims for intentional (“wrongful”) acts that cause injuries. One category of intentional torts that has arisen in emergency situations is called “active endangerment,” or the intentional or knowing conduct by government officials that places others in even greater danger than what is already present. The active endangerment theory was the basis for a lawsuit brought by workers at the Brentwood mail processing facility in Washington, DC, who alleged that the Postal Service intentionally misled them into believing that their workplace was safe even after managers learned that some equipment was contaminated by anthrax. Two employees who worked there died from anthrax inhalation, and several others became ill. Here is how the court a­ nalyzed the doctrine:

Chapter 19 l Sovereign Immunity and Government Liability  337

Plaintiffs allege here that Defendants acted with deliberate indifference because they knew that Brentwood was contaminated with anthrax, yet, to keep the employees working, they continued to make affirmative misrepresentations concerning the facility’s safety. Plaintiffs also allege that by not providing them with accurate information concerning the safety of the Brentwood facility and by “threatening, intimidating, and/or coercing” them to continue working at the anthrax-contaminated facility, Defendants made Plaintiffs more vulnerable to the danger of anthrax contamination. In addition, Plaintiffs have alleged a series of events that they argue demonstrate that Defendants were put on notice “that anthrax spores sent through the mail could penetrate the sides of a sealed envelope during processing at the Brentwood facility and, thereby, cause serious injury and/or death to Plaintiffs…” The Court has given considerable thought to Plaintiffs’ arguments. If the facts are as alleged, the conduct of USPS managers would appear commendable for their dedication to getting the mail out but deplorable for not recognizing the potential human risk involved. …[T]hese alleged actions demonstrated a gross disregard for a dangerous situation… It is alleged that Defendants had been put on notice of the serious consequences that could result from Plaintiffs’ exposure to anthrax yet, despite such knowledge, Defendants engaged in a campaign of misinformation designed to keep the employees at work. As noted by the Supreme Court … “[w]hen opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” (Briscoe v. Potter, 2004)

The Discretionary Function Exception The discretionary function exception provides immunity for government officials’ policy judgments, as opposed to actions they are required by the law to carry out. In other words, the sovereign immunity defense is effectively reinstated by this exception to the waiver. In the FTCA, despite its waiver of immunity, the discretionary function exception bars any claim based on the “exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.” This means that the sovereign has not waived immunity for discretionary acts or policy decisions. The Stafford Act also contains a statutory discretionary function exception. Because the Stafford Act is the core of federal disaster relief, this example is critically important to the law of emergencies. It states: The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter. (42 U.S. Code §5148)

338  THE LAW OF EMERGENCIES

Although the general principle is easy to state, it is not always clear which actions are discretionary. In general, if a law clearly mandates that officials perform specific acts, then the discretionary function exception does not apply. But if a law places a broad requirement on an official to meet an objective, are that official’s independent decisions on how to reach the goal discretionary and immune, or are they mandated by law and therefore “fair game” for lawsuits under the FCTA if the actions cause injuries? The following case is the leading Supreme Court decision in this area of law.

The Berkovitz Case The parents of a paralyzed infant sued the National Institutes of Health (NIH) under the FTCA after their child contracted polio from an oral polio vaccine. The Berkovitz family alleged that the Division of Biological Standards (DBS) within the NIH had been negligent in two of its actions: licensing the manufacturer of the vaccine and then approving the specific vaccine lot in question. The government claimed that the decisions to license the manufacturer and to approve the vaccine lot were discretionary and therefore immune from suit.

Berkovitz v. United States United States Supreme Court, 1988 The determination of whether the discretionary function exception bars a suit against the Government is guided by several established principles. This Court stated in Varig [an earlier case] that “it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” In examining the nature of the challenged conduct, a court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. See Dalehite v. United States (stating that the exception protects “the discretion of the executive or the administrator to act according to one’s judgment of the best course”). Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. Moreover, assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress’ desire to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. See Dalehite v. United States (“Where there is room for policy judgment and decision there is discretion”). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment…

Chapter 19 l Sovereign Immunity and Government Liability  339

Petitioners’ suit raises two broad claims. First, petitioners assert that the DBS violated a federal statute and accompanying regulations in issuing a license to Lederle Laboratories to produce Orimune. Second, petitioners argue that the Bureau of Biologics of the FDA violated federal regulations and policy in approving the release of the particular lot of Orimune that contained Kevan Berkovitz’s dose. We examine each of these broad claims by reviewing the applicable regulatory scheme and petitioners’ specific allegations of agency wrongdoing. Because the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in petitioners’ complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate… Petitioners’ first allegation with regard to the licensing of Orimune is that the DBS issued a product license without first receiving data that the manufacturer must submit showing how the product, at the various stages of the manufacturing process, matched up against regulatory safety standards. The discretionary function exception does not bar a cause of action based on this allegation. The statute and regulations described above require, as a precondition to licensing, that the DBS receive certain test data from the manufacturer relating to the product’s compliance with regulatory standards. The DBS has no discretion to issue a license without first receiving the required test data; to do so would violate a specific statutory and regulatory directive. Accordingly, to the extent that petitioners’ licensing claim is based on a decision of the DBS to issue a license without having received the required test data, the discretionary function exception imposes no bar.

Note the importance of specific facts to the application of the legal principles in this case.

Petitioners’ other allegation regarding the licensing of Orimune is difficult to describe with precision. Petitioners contend that the DBS licensed Orimune even though the vaccine did not comply with certain regulatory safety standards… This charge may be understood in any of three ways. First, petitioners may mean that the DBS licensed Orimune without first making a determination as to whether the vaccine complied with regulatory standards. Second, petitioners may intend to argue that the DBS specifically found that Orimune failed to comply with certain regulatory standards and nonetheless issued a license for the vaccine’s manufacture. Third, petitioners may concede that the DBS made a determination of compliance, but allege that this determination was incorrect. Neither petitioners’ complaint nor their briefs and argument before this Court make entirely clear their theory of the case. If petitioners aver that the DBS licensed Orimune either without determining whether the vaccine complied with regulatory standards or after determining that the vaccine failed to comply, the discretionary function exception does not bar the claim. Under the scheme governing the DBS’s regulation of polio vaccines, the DBS may not issue a license except upon an examination of the product and a determination that the product complies with all regulatory standards… The agency has no discretion to deviate from this mandated procedure. Petitioners’ claim, if interpreted as alleging that the DBS licensed Orimune in the absence of a determination that the vaccine complied with regulatory standards, therefore does not challenge a discretionary function. Rather, the claim charges a failure on the part of the agency to perform its clear duty under federal law. When a suit charges an agency with failing to act in accord with a specific mandatory directive, the discretionary function exception does not apply.

340  THE LAW OF EMERGENCIES

If petitioners’ claim is that the DBS made a determination that Orimune complied with regulatory standards, but that the determination was incorrect, the question of the applicability of the discretionary function exception requires a somewhat different analysis. In that event, the question turns on whether the manner and method of determining compliance with the safety standards at issue involve agency judgment of the kind protected by the discretionary function exception. Petitioners contend that the determination involves the application of objective scientific standards, whereas the Government asserts that the determination incorporates considerable “policy judgment.” In making these assertions, the parties have framed the issue appropriately: application of the discretionary function exception to the claim that the determination of compliance was incorrect hinges on whether the agency officials making that determination permissibly exercise policy choice. The parties, however, have not addressed this question in detail, and they have given us no indication of the way in which the DBS interprets and applies the regulations setting forth the criteria for compliance. Given that these regulations are particularly abstruse, we hesitate to decide the question on the scanty record before us…

Notice that the Court has used a two-part test to determine whether the discretionary function exception applies. First, the action must be discretionary in that it involves some element of choice. Second, it must be a permissible use of discretion because it is based on considerations of social, economic, and political policy.

● ●

The Court’s analysis of the first prong focused on whether there were specific rules and mandated actions that the agency was required to meet. If there were, the Court did not need to reach the second prong, i.e., whether a discretionary action was based on inappropriate considerations. This was the standard relied on in a California case in which state employees who had been hired to install traps in a pest eradication program suffered injuries caused by exposure to a chemical in the traps. They alleged that their supervisors had concealed and misrepresented the dangers associated with the chemical. State law imposed strict notification requirements when pesticides were used. The government argued that its actions, taken during a declared state of emergency brought about by Medfly infestation, were exempt from a lawsuit because of the discretionary function exception. Here is how the court ruled: We recognize in a state of emergency it is imperative the State must be able to act with haste in exercising its sovereign powers to protect the public. However, in exercising that power in situations in which the State is also obligated to provide accurate information to the ­public in the context of an eradication program, there can be no reason for the State to purposefully withhold health and safety information from persons most likely to be injured. The State cannot thwart plaintiffs’ claims by labeling their actions as “discretionary acts” or acts which are but a “myriad of decisions regarding the implementation of the Medfly program.” … The State is required to use its best efforts to provide accurate and complete health and safety information; no decision-making is required. Thus, the [discretionary function exception] does not immunize the State. (Adkins v. California, 1996)

Chapter 19 l Sovereign Immunity and Government Liability  341

THE DUTY THAT COMES WITH KNOWLEDGE Discretionary immunity does not apply where state or federal officials know that their actions or omissions violate statutory or constitutional rights (Harlow v. Fitzgerald, 1982). Because no official is authorized to break the law, any decision to violate what are known to be protected legal rights is inherently outside the scope of authorized discretion.

Hurricane Katrina and Liability for Personal Harm Now consider a case involving Hurricane Katrina and the failure of federal agencies and officials to provide enough aid, fast enough, to avert tragedy. The relatives of three deceased individuals, all of whom remained in New Orleans during Hurricane Katrina because of their impaired mobility, sued the federal government for its failure to deliver aid so as to prevent the deaths. Each person died in a separate incident. Fig. 19-1 shows a satellite image of hurricane Katrina. Ms. Freeman died at the New Orleans Convention Center. After Hurricane Katrina made landfall, her home was flooded. Her son borrowed a boat to bring her, in her wheelchair, to higher ground. He was directed by local police to take her to the Convention Center. Once there, he notified police officers that she needed medical attention. They told him a bus would come to evacuate Ms. Freeman. The Convention Center was not equipped with food, medical supplies, clean water, blankets, medical assistance, triage, or transportation. Ms. Freeman died the day after her son brought her there. The second decedent, Ms. Eleby, also died at the Convention Center. Ms. Eleby was bedridden. As Hurricane Katrina approached, her physician advised her to evacuate to a local hospital. Her caretaker contacted hospitals and was told that she could go to the Superdome but that no beds would be provided. As a result, she remained with her family who was trapped by the storm in their home. When the first rescue team arrived, they offered to take Ms. Eleby’s family only if they left her behind because she was paralyzed and bedridden. A second boat took all of them to the Chef Menteur Highway where they spent the night without food, water, or shelter. The next day rescuers brought them to the Convention Center, and Ms. Eleby died the day ­following her arrival. Finally, Mr. DeLuca died at Louis Armstrong International Airport on September 3, 2005. The storm had flooded the assisted living facility in which he resided. A helicopter crew rescued Mr. DeLuca and delivered him to the Pontchartrain Center. After that center flooded, another helicopter transferred him to the interchange of Interstate 10 and Causeway Boulevard (the “Cloverleaf”). The Cloverleaf was not equipped with medical supplies, food, water, shelter or transportation—it was in the same squalid condition as the Convention Center. Although evacuation buses began arriving on August 31, 2005, a day after he was transferred, Mr. DeLuca was not evacuated. He remained on the Cloverleaf until September 2, 2005, when he collapsed from stress, heat exhaustion, hunger, and dehydration. A helicopter airlifted him to the airport, where he died the next day.

342  THE LAW OF EMERGENCIES

FIGURE 19-1  Hurricane Katrina. Source: www.nasa.gov/…/h2005_katrina.html

Chapter 19 l Sovereign Immunity and Government Liability  343

Shortly thereafter, the families of Ms. Freeman, Ms. Eleby, and Mr. DeLuca sued the federal government, alleging that the government failed to exercise due care in the provision of emergency aid pursuant to the National Response Plan (NRP), namely by failing to provide food, water, shelter, medical assistance, and transport to the Convention Center and to the Cloverleaf. The families’ argument relied upon their characterization of the NRP as mandating the provision of relief. The government claimed that the NRP was a generalized plan that left much to the discretion of various officials and mandated no specific action, only goals. Who do you think prevailed?

Freeman v. United States U.S. Court of Appeals for the Fifth Circuit, 2009 Under the first prong of the Berkovitz test, plaintiffs fail to identify any specific, nondiscretionary function or duty that does not involve an element of judgment or choice. To the contrary, plaintiffs cite a large number of NRP provisions that contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow. … Under the second prong of the Berkovitz test, we hold that the government’s decisions about when, where, and how to allocate limited resources within the exigencies of an emergency are the types of decisions that the discretionary function was designed to shelter from suit… In light of the ‘strong presumption’ that, where permitted by the relevant statute or regulation, the exercise of choice or judgment implicates relevant policy, decisions regarding the feasibility, safety, and benefit of mobilizing federal resources in the aftermath of a natural disaster are grounded in social, economic, and public policy… The tragedies that gave rise to this litigation were compounded by the well-documented inability of all levels of government to provide timely relief to the hurricane’s victims. The federal government has publicly admitted that it made many mistakes; however, even if those mistakes caused decedent’s deaths, which we are presently in no position to determine, the federal government’s negligence does not give rise to tort liability absent the United States express waiver of sovereign immunity. For the above explained reasons, we conclude that the United States has not waived sovereign immunity for the discretionary functions alleged in this case. …

Critical Thinking Notice that all three of the decedents in Freeman had “impaired mobility.” Remember that when an evacuation order is in effect, those who disobey it are disobeying a municipal ordinance and may be subject to criminal penalties, such as fines or detention. Do you think this should make a difference in whether a person may recover from the government for its actions during an emergency? Keep in mind the many able-bodied people who were trapped inside the Superdome and suffered physical and emotional injury as a result. What if the evacuation order is the third in two weeks and both previous orders were issued for storms that missed the area completely?

344  THE LAW OF EMERGENCIES

Hurricane Katrina and Liability for Property Damage Because so many people sought damages for loss of property after Katrina, the federal courts consolidated the cases. Below is an excerpt from the appeal of a District Court ruling that disallowed the discretionary function exception for some of the claims. The excerpt focuses on a group of people who lived in the same area—called “the Robinson plaintiffs” because the Robinson family claims were selected as representative of those by others in the group— to illustrate the Court of Appeals’ reasoning in relying on the DFE to immunize the Corps of Engineers from liability.

In re Katrina Canal Breaches Litigation U.S. Court of Appeals for the Fifth Circuit, 2012 Jerry E. Smith, Circuit Judge. Decades ago, the Army Corps of Engineers (the “Corps”) dredged the Mississippi River Gulf Outlet (“MRGO”), a shipping channel between New Orleans and the Gulf of Mexico, and levees alongside the channel and around the city. When Hurricane Katrina struck in 2005, MRGO’s size and configuration greatly aggravated the storm’s effects on the city and its environs. … In 1943, Congress requested a report from the Chief of Engineers, Secretary of the Army, investigating ways to make the Port of New Orleans more accessible for maritime and military use. That request led to the authorization of MRGO in 1956. The channel was built to its full dimensions by 1968 and afforded a shorter shipping route between the Gulf of Mexico and New Orleans. As the district court noted, the channel, as originally designed, “was to be 36 feet deep and 500 feet wide, increasing at the Gulf of Mexico to 38 feet deep and 600 feet wide.” MRGO was cut through virgin coastal wetlands at a depth that exposed strata of so-called “fat clay,” a form of soil soft enough that it will move if made to bear a load. The channel’s original designers considered and rejected armoring its banks with foreshore protection, leaving them vulnerable to erosion. During the design and construction of MRGO, the Corps also implemented the Lake Pontchartrain and Vicinity Hurricane Protection Plan (“LPV”). Pursuant to that plan, the Corps constructed, inter alia, the New Orleans East Unit, levees protecting New Orleans East; the Chalmette Area Unit, levees protecting the Ninth Ward and St. Bernard Parish; and higher floodwalls in the outfall canals at 17th Street, Orleans Avenue, and London Avenue. Separately from MRGO, between 1967 and 1985 the Corps also “lifted” and enlarged portions of the levee paralleling Reach 2 of the channel. Reach 2 of MRGO runs southeasterly from a point near Michoud in eastern New Orleans along the south shore of Lake Borgne and through the marshes to and across Chandeleur

Chapter 19 l Sovereign Immunity and Government Liability  345

Sound to the Gulf of Mexico. Its south shore parallels the Reach 2 levee (later breached during Katrina, resulting in massive flooding). Foreshore protection was authorized for that shore in 1967 and costs charged to the MRGO project in 1968. From 1968 until 1980, it is not evident why the protection was not implemented. In March 1980, the Corps scrapped its original design for further study, which it continued for the next two years. In 1982, it began testing foreshore protection along the south shore; the study was completed in early 1983. A contract was awarded in 1985, and the foreshore protection was finished in 1986. For the north shore of Reach 2—that shore which abuts Lake Borgne and its wetlands—the district court found that, by the early 1970s, erosion of the channel had threatened the wetlands, in particular the land bridge that prevented Lake Borgne from flowing directly into the MRGO. In the early 1980s, the Corps was directed to study the feasibility of protection along the north shore. In 1984 and 1988, the Corps reported studies recognizing that erosion from wave wash had widened the channel and that the north shore was close to being breached, thereby exposing development and inhabitants to the southwest to hurricanes from Lake Borgne. The Corps outlined two erosion-control plans in the 1984 report. The 1988 report concluded that the bank-erosion problem threatened to increase dredging costs sixfold, a problem Corps engineers with the New Orleans Division attempted to address via a supplement to MRGO’s Design Memorandum, which would encompass further studies and bypass any requirements for local cost-sharing. That attempt was rejected by the Lower Mississippi Valley Division, which criticized the modeling used and the estimated costs of dredging. The Corps took the position that design modification was not warranted under the cost– benefit ratio: “[U]ntil the cost of providing foreshore protection proved to be less expensive than the continued need for dredging to maintain the channel’s navigability, the Corps did not actively pursue funding for this protection.” The Corps refused to undertake the cost of foreshore protection unless there was local cost participation under the Water Resources Development Act. Furthermore, the district court noted, the Corps did not prioritize protecting the north shore, because there was no levee to protect, and the primary mission of the Corps was to keep the channel navigable. In 1994, the Corps issued another report in which it still proceeded under the assumption that the cost of foreshore protection was greater than it proved to be; the Corps took the position that costs for bank stabilization should be shared by the local population. Finally, in the mid1990s, the Corps realized that the actual costs of maintaining the foreshore protection were less than estimated in the 1988 report, so a “re-analysis of the benefits and costs based on this new cost information was the genesis for an April 1996 Evaluation Report.” That report recommended funding for protection along five sections of the north shore of Reach 2, and that same year, Congress instructed the Corps to use its available operations and maintenance funds to protect the shore to minimize future dredging costs and preserve the wetlands. The Corps’ delay in armoring MRGO allowed wave wash from ships’ wakes to erode the channel considerably, destroying the banks that would have helped to protect the Reach 2 levee (in the Chalmette Area Unit) from front-side wave attack and loss of height. The increased channel width added more fetch as well, allowing for a more forceful frontal wave attack on the levee.

346  THE LAW OF EMERGENCIES

MRGO’s expansion thus allowed Hurricane Katrina to generate a peak storm surge capable of breaching the Reach 2 levee and flooding the St. Bernard polder. [A polder is a tract of low land reclaimed from a body of water.] Separately from MRGO, the hurricane also caused the 17th Street, Orleans Avenue, and London Avenue levees to breach. Over four hundred plaintiffs sued in federal court to recover for Katrina-related damages, many naming the federal government as a defendant. … The DFE bars suit on any claim that is “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The purpose of the DFE “is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” “The Supreme Court has developed a two-part test for determining whether the federal government’s conduct qualifies as a discretionary function or duty” (Freeman v. United States [above]). First, the conduct must involve “an element of judgment or choice. … If a statute,

Chapter 19 l Sovereign Immunity and Government Liability  347

regulation, or policy leaves it to a federal agency or employee to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary… On the other hand, [t]he requirement of judgment or choice is not satisfied and the discretionary function exception does not apply if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive.” Second, the DFE “protects only governmental actions and decisions based on considerations of public policy.” The “proper inquiry” is not whether the decision maker “in fact engaged in a policy analysis when reaching his decision but instead whether his decision was susceptible to policy analysis.” … “[T]he very existence” of a law or regulation allowing a government employee discretion (satisfying Berkovitz’s first prong) “creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” … [Maintenance Issues] …[T]he Robinson plaintiffs allege that the Corps had a mandate from Congress to maintain MRGO at a certain size: “The channel was to be 36 feet deep and 500 feet wide, increasing at the Gulf of Mexico to 38 feet deep and 600 feet wide.” But MRGO has now eroded to an average of three times its design width. The district court recognized, however, that the design for MRGO expressly contemplated ­erosion from wave wash and did not provide for armoring the banks. The court held that these design f­ eatures were “shielded by the [DFE],” a ruling that the plaintiffs do not challenge on appeal. Logically, therefore, the absence of armoring and the resultant erosion cannot have violated a mandate sufficient to negate the first Berkovitz prong. In their attempt to negate the second DFE prong, the Robinson plaintiffs allege that the critical calculations made by the Corps in waiting to armor MRGO were only erroneous scientific judgments, not decisions susceptible to public policy considerations. If the government’s discretion is “grounded in the policy of the regulatory regime,” the decision is immune under the DFE, even if it also may entail application of scientific principles. If it is susceptible only to the application of scientific principles, however, it is not immune. For the government to enjoy DFE immunity, the deciding agent need not have actually considered any policy implications; instead, the decision must only be “susceptible to policy analysis.” … “[T]he very existence” of a law or regulation allowing a government employee discretion (satisfying Berkovitz’s first prong) “creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” The relevance of the grounds for the decision is strictly limited: “Evidence of the actual decision may be helpful in understanding whether the ‘nature’ of the decision implicated policy judgments, but the applicability of the exemption does not turn on whether the challenged decision involved such judgments.” As discussed above, there is ample record evidence indicating the public policy character of the Corps’s various decisions contributing to the delay in armoring Reach 2. Although the Corps appears to have appreciated the benefit of foreshore protection as early as 1967, the record shows

348  THE LAW OF EMERGENCIES

that it also had reason to consider alternatives (such as dredging and levee “lifts”) and feasibility before committing to an armoring strategy that, in hindsight, may well have been optimal. The Corps’s actual reasons for the delay are varied and sometimes unknown, but there can be little dispute that the decisions here were susceptible to policy considerations. Whatever the actual reasons for the delay, the Corps’s failure to armor timely Reach 2 is shielded by the DFE. … [Storm Surge Issues] Norman and Monica Robinson, who reside within the New Orleans East polder, claim that MRGO created a “funnel effect” that increased the power of Hurricane Katrina’s storm surge such that the Reach 1 levee was breached and the Citrus Back levee was overtopped, exacerbating the flooding of their house. They also contend that the Corps should have installed a surge barrier, which would have prevented any significant flooding in New Orleans East. They contend that the Corps was negligent in its maintenance and operation of MRGO and its failure to create a surge protection barrier. The district court found that the Corps permissibly relied on the “Bretschneider and Collins Report,” which stated that MRGO’s effect on storm surge would generally be minimal. Id. Therefore, the court reasoned, “a duty did not exist to construct a surge protection barrier,” and the Corps was not negligent for failing to construct the barrier or for the effects of a widened MRGO. In addition, the court found that the complained of “funnel effect” would have been present in MRGO’s initial design and construction, meaning the Corps cannot be held liable for the plaintiffs’ damages because of the DFE. Plaintiffs contend that the court erred in finding that the Corps reasonably relied on the Bretschneider and Collins report, because later studies called it into question, a fact allegedly ignored by the district court. More specifically, the plaintiffs contend that though the Corps may have reasonably relied on the report when it was released, it was unreasonable to rely on it for the next thirty years while new reports came out calling its conclusions into question. Despite these contentions, the court did not clearly err in finding that the Corps was reasonable in relying on the report. … There were several later studies and occurrences that supported the Bretschneider and Collins report’s conclusions, including a 2003 Corps study and the experience of Hurricane Camille. Thus, the district court did not commit clear error when it determined that the Corps had no duty to construct a storm surge barrier based on its reasonable reliance on the report, both when it was issued and in later decades. … The court intertwined its ruling on the surge protection barrier with its ruling on the maintenance issue. The court called attention to the fact that, had MRGO remained at its original dimensions through proper maintenance, its original design would have caused the Robinsons’ property to suffer six feet of flooding regardless. “This fact indicates that a substantial portion of the harm would have arisen from the original design and presents substantial causation issues which will not be discussed based on the Court’s finding of no negligence.” If harm from the original design were legally actionable, then, it would present a substantial causation issue only if it were mixed with another harm the court found non-actionable, namely, the added flooding caused by the widened MRGO. The Robinsons have not shown that the court clearly erred in rejecting their negligent-maintenance argument. … Our application of the DFE … completely insulates the government from liability.

Chapter 19 l Sovereign Immunity and Government Liability  349

Critical Thinking Many legal scholars are critical of the doctrine of sovereign immunity because it can leave so many people without a remedy for mistaken acts by government. The Canal Breaches litigation combined more than 400 suits brought by homeowners, effectively seeking damages for losses not covered by their insurance, since the law prohibits double recovery. Loyola-New Orleans Law Professor Mitchell Crusto, in referring to the levee cases, commented that “the application of sovereign immunity was brutal.” A law school dean, Erwin Chemerinsky, writing prior to Hurricane Katrina, argued that “sovereign immunity is an anachronistic concept, derived from long-discredited royal prerogatives, and … inconsistent with basic principles of the American legal system.” Why do you think the doctrine has survived? Have its functions changed, and if so, how? What could take its place?

Summary If an individual doing her job makes a mistake and the mistake causes injury to others or damage to property, the employer (who presumably has insurance) may be liable for the damages. That statement may not apply to government employees, however, because of the concept of sovereign immunity. In the interests of fairness, governments at all levels have waived this immunity, but only for certain kinds of acts. Moreover, even for situations covered by the waiver—primarily torts, or harms to persons or property caused by negligence—the immunity may be effectively reinstated by the discretionary function exception. Because of the nature of the work and it inherent dangers, questions related to immunity, waiver and discretionary function arise frequently in the context of disasters and emergencies. How does this relate to the other areas of law covered in this book? Negligence and other bases for liability discussed in this chapter are independent of the issues that we have ­examined in previous chapters. Any one action by the government may be challenged in court on multiple grounds; each of those legal grounds will have separate components (like the ­elements of negligence) that a plaintiff must prove in order to succeed.

Important Terms Active endangerment Discretionary function ● Duty of care ● Eleventh Amendment ● Federal Tort Claims Act ● The Hand test ● Negligence ● Sovereign immunity ● Tort ● ●

350  THE LAW OF EMERGENCIES

Review Questions Imagine a scenario in which emergency management officials implement a plan for evacuation in advance of a hurricane, but they ignore how well its execution occurs in a neighborhood where most of the residents are low-income elderly persons. (In all other neighborhoods, the agency implements the plan extremely well.) Analyze what the possible legal liability could be for this differential treatment of one neighborhood. For each legal theory, identify the ­additional facts that you would need to know before you can reach a final conclusion.

20 Liability Issues for Individuals Introduction Can an individual government employee be sued and forced to pay damages? What about volunteers who assist the government in responding to an emergency? Are the rules different for physicians and other licensed professionals? These are the questions that we will explore in this chapter. You will learn the ways that liability rules for individuals differ from those that apply to government; how the law can transform nonemployees into employees for purposes of tort liability; the degree to which individual volunteers do and do not have immunity from personal injury lawsuits; and the special laws and registration systems established to ­encourage health care professionals to volunteer for emergency assistance projects.

Government Responsibility for the Acts of Its Employees In almost all instances, an employee of a government agency will be protected from ­ ersonal liability for injuries that result from his or her performance of job duties. So long as p the employee was carrying out his or her job responsibilities at the time of the incident, even if the employee’s actions were negligent, plaintiffs will usually recover any damages to which they are entitled from the government rather than from the individual. (This assumes that the lawsuit would fit within the scope of a waiver of sovereign immunity—see Chapter 19.)

The government’s obligation to pay arises from its role as employer. Under the common law ­doctrine of “respondeat superior” (Latin for “let the master answer”), an employer will generally be responsible for the wrongful acts of its employees, so long as those acts were performed in the normal course of business. This principle applies only to civilian government employees; other laws govern liability for acts committed by military personnel.

If it is the employee who suffers an injury arising out of and in the course of employment, a workers’ compensation law will usually provide an automatic remedy. Workers compensation systems are also the exclusive remedy, meaning that the employee must give up the option to sue for damages in return for this automatic entitlement. The umbrella that shields individual government employees does not, however, extend to situations in which the employee is acting outside the scope of his or her job. It also does not protect the individual from a lawsuit if the actions were unlawful or amounted to gross The Law of Emergencies. DOI: http://dx.doi.org/10.1016/B978-0-12-804275-5.00020-6 © 2018 Elsevier Inc. All rights reserved.

351

352  THE LAW OF EMERGENCIES

negligence or willful misconduct. To take a simple example, imagine that a government worker is driving a city-owned car while on the job and causes an accident. In most instances, any damages will be paid by the city. However, if the employee was intoxicated or was using the car improperly—say, for personal trips—then the individual will be liable. In some jurisdictions, the government chooses another option for shielding its employees. Rather than assume responsibility for employees’ lawful actions as a threshold matter, the state or municipal government elects to indemnify any employees who are successfully sued for their activities on the job. “Indemnification” means that the government will reimburse the amount of any damages that an employee is ordered to pay.

The Extension of Government Responsibility Beyond Regular Employees The federal government and many state governments have laws that deem persons who volunteer to assist in a government project, such as disaster relief, to be temporary government employees for the duration of that project. This insures that those volunteers will receive the same protections from liability that regular government workers enjoy. The deeming approach may also apply when employees of one governmental entity are called in to assist another. For example, if employees of State A or County B assist the rescue efforts undertaken by State C, they may be deemed to be “special employees” of State C. Two deemer provisions in federal law are especially relevant to the law of emergencies. First, under the Stafford Act, the federal government may use non-federal employees and may hire other emergency personnel: In carrying out the purposes of this Act, any Federal agency is authorized to accept and utilize the services or facilities of any State or local government, or of any agency, office or employee thereof, with the consent of such government. … In performing any services under this Act, any Federal agency is authorized to appoint and fix the compensation of such temporary personnel as may be necessary, without regard to [Civil Service requirements]… (42 U.S. Code § 5149)

The second important federal deemer law applies to health care workers. The Secretary of Health and Human Services is authorized to accept “services performed by individuals (hereafter called volunteers) whose services have been offered to the Government and accepted under a formal agreement on a without compensation basis for use in the operation of a health care facility or in the provision of health care” (45 Code of Federal Regulations § 57.2). One benefit accorded such “federalized” volunteers is that they receive the same immunity from tort claims that regular employees enjoy (45 Code of Federal Regulations § 57.5(a)(2)). The deemer approach can apply in a variety of circumstances, not limited to emergencies or rescue efforts. For example, in an Illinois case, two high school students who were chosen to

Chapter 20 l Liability Issues for Individuals  353

be unpaid teachers’ assistants in a swimming class were found to qualify as “employees” under the immunity law, despite their student status: [Under] Section 1-202 of the Tort Immunity Act, ‘[e]mployee’ includes a … volunteer … whether or not compensated … [S]ection 3-108(a) grants absolute immunity to a public entity or a public employee. … In this case, Styx and Krastin were … student volunteers and the plain language of section 1-202 controls our decision. Styx and Krastin applied for the position of student guard to assist the freshman swimming class, were not compensated for their services, and were under the direct supervision of [the teacher]. … Therefore, because of their status as volunteers, both Styx and Krastin qualify as public employees. Consistent with the language of the Tort Immunity Act and the clear intention of the legislature, we conclude that the actions of uncertified student guards under the supervision of a certified teacher are entitled to immunity … (Trotter v. School District, 2000)

A Maryland statute allows a volunteer to be considered “state personnel” for purposes of the tort claims act if the person provides a service without pay, and if the individual:. (a) Performs services to or for a unit of State government, the employees of which are considered State personnel, (b) Engages in the actual performance of State services at the time of the incident ­giving rise to a claim, and (c) In the performance of the services: (i) Participates in a formal volunteer program, or (ii) Before the beginning of those services, is formally recognized by the unit of the State government as a volunteer. (Code of Maryland Regulations 25.02.01.02(B)(8))

It is difficult to formulate an overall summary of state deemer laws because they vary enormously in the details of exactly who is covered and under which circumstances. In general, though, if persons who are not part of an agency’s regular workforce—whether volunteers or government workers from another jurisdiction—are participating in that agency’s disaster response or emergency effort, then there is at least a strong possibility that those extra workers will be deemed to be temporary or special employees. One has to consult each state’s law to determine its precise scope.

Critical Thinking The laws that deem a nonemployee to be an employee affect not only individual liability; they also effectively lock in the control and direction of rescue efforts by government agencies. Volunteers come from a wide variety of backgrounds, with many motivations, from religious to civic to selfish. What are the advantages and disadvantages of incorporating all these people as temporary government employees?

354  THE LAW OF EMERGENCIES

The Federal Volunteer Protection Act In 1997, responding to a wave of state legislative efforts, Congress adopted the Volunteer Protection Act (VPA) to establish one uniform national law that would shield volunteers from personal liability in situations where they could not be deemed employees of a governmental body. One of the major concerns motivating Congress was that fear of liability would deter people from volunteering for charitable activities. Nonprofit organizations wanted to be able to assure volunteers that they need not worry about being sued for damages if they made honest mistakes. In addition, government entities also wanted to extend liability protection to volunteers even if their jurisdiction lacked an adequate deemer law. The VPA defines a “volunteer” as a person who performs services for a nonprofit organization or a unit of government who receives no compensation other than for expenses (42 U.S. Code § 14505(6)). It shields volunteers from liability for harm caused by that individual’s act or failure to act, but only if four key criteria are met: (1) the volunteer was acting within the scope of the his or her responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; (2) if appropriate or required, the volunteer was properly licensed, certified or authorized to engage in the particular action; (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and (4) the harm was not caused by the volunteer operating a motor vehicle … [for which a license or insurance is required]. (42 U.S. Code § 14503(a)) Note that one consequence of the first condition is that the VPA does not extend to random individual volunteers, but only to those who are working under the supervision of either a nonprofit organization or a government agency. The VPA additionally provides that its immunities do not apply to actions by volunteers that constitute violent crimes, international terrorism, hate crimes, sexual offenses, or violations of civil rights laws, or actions taken while the volunteer is intoxicated or under the influence of drugs (42 U.S. Code § 14503(f )).

Momans v. St. John’s Northwestern Military Academy U.S. District Court for the Northern District of Illinois, 2000 …Plaintiffs [are] parents or guardians of current or former students at St. John’s Northwestern Military Academy (“St. John’s”). [They] instituted this state law fraud action against St. John’s and certain members of its Board of Trustees … alleg[ing] that they were persuaded to enroll their children or wards in St. John’s based upon misrepresentations made by the Defendants. …

Chapter 20 l Liability Issues for Individuals  355

[The] alleges that the individual Defendants violated the Illinois … Consumer Fraud Act and committed common law fraud by engaging in a course of action designed to mislead parents and guardians of students and potential students at St. John’s… The Volunteer Act was enacted to “provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.” The individual Defendants contend that they are volunteers within the meaning of the Act, which defines volunteers as individuals, including directors, who perform services for a nonprofit organization and who do not receive compensation… As such, the individual Defendants are immunized from liability for harm caused by them in the scope of their responsibilities, if the harm is not caused by “willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” Although the … Complaint does not specifically allege what each individual Defendant said, it does allege generally that Defendants made certain representations that they knew were false. Plaintiffs also allege in their common law fraud claim that Defendants acted with the intent to induce reliance on the representations. The Volunteer Act does not define the term “willful.” Nevertheless, the term has an established meaning: “[t]he usual meaning assigned to ‘willful’ … is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow[.]” In civil actions, the term is commonly used for an act which is intentional, knowing, or voluntary, as distinguished from accidental. The court concludes that under these standards, Defendants have not met their heavy burden of establishing that this statute precludes recovery by Plaintiffs. Plaintiffs allege both intent to induce reliance and knowledge of the falsity of their representations. Construing the alleged facts in Plaintiffs’ favor—e.g., that Defendants made fraudulent misrepresentations to promote and advertise St. John’s—a fact-finder could reasonably conclude that the individual Defendants acted with sufficient intent and knowledge so as to be ineligible for immunity under the “willful misconduct” exception to the Volunteer Act…

In order to create more national consistency, the VPA pre-empts any state law that provides less protection to volunteers. If a state law offers more protection, then its terms will be applied rather than the VPA (42 U.S. Code § 14502).

The VPA provides no protection from lawsuits for the charitable organization itself, only for individual volunteers (42 U.S. Code § 14503(c)).

There are exceptions to pre-emption as well, however. Although Congress did not include these additional limitations in the federal law, it did provide that if states adopted them, they would not be pre-empted. As a result, the following provisions in state law, if they exist, will not be pre-empted: That the nonprofit organization where volunteer activities occur must adhere to risk management principles, including mandatory volunteer training;

●

356  THE LAW OF EMERGENCIES

That a nonprofit is liable for the acts of omissions of its volunteers to the same extent that an employer is liable for the acts or omissions of its employees; ● That there is no immunity if the volunteer is a defendant in a civil action brought by a government official; and ● That the immunity applies only to volunteers working at nonprofits that provide a “financially secure source of recovery,” such as insurance. ●

(42 U.S. Code § 14503(d)) Another mechanism in the VPA for achieving greater consistency across states is that, even if immunity does not apply, only compensatory, and not punitive, damages may be awarded in a lawsuit against volunteers (42 U.S. Code § 14503(e)).

State Volunteer Protection Laws Every state has some sort of volunteer protection or “good Samaritan” law, but, as indicated above, these laws vary widely. Many have the same or similar kinds of limitations as does the federal VPA: no immunity for acts that are reckless, willful, grossly negligent or unlawful, or for negligent acts committed while driving a motor vehicle. According to a report by the Nonprofit Risk Management Center, many state laws are specific to certain groups of volunteers, such as firefighters (Alabama), health care practitioners (many examples—see below), athletic coaches (Ohio), food donation volunteers (Texas), and even those who volunteer at libraries (Vermont) and bingo raffles (Colorado). Given such specificity of coverage, many states have multiple volunteer protection laws, with different rules for different occupational classifications. Again, one would have to consult each state’s laws in order to determine exactly who and what is covered.

Critical Thinking One huge distinction between the result of deemer laws and volunteer protection laws is the impact on the plaintiff in such lawsuits, i.e., on the person injured by the actions of a volunteer. If the volunteer is treated under the law as a government employee, the plaintiff may well receive compensation from the government (assuming that all relevant criteria for a successful lawsuit have been met). If the volunteer is simply immunized, however, it is possible that the same plaintiff will receive no compensation at all. Can you state when this would occur? Is this outcome fair? How can or should the law try to avoid such situations?

Liability Issues for Health Practitioners Laws applying to health practitioners are probably the largest single subset of state volunteer protection laws. The following case illustrates how one state’s laws operate:

Chapter 20 l Liability Issues for Individuals  357

Frields v. St. Joseph’s Hospital and Medical Center New Jersey Superior Court, Appellate Division 1997 … At approximately 7 p.m. on September 15, 1990, William T. Frields (Billy) arrived at his father’s residence in Paterson. Soon thereafter, Billy reported to his father that he felt dizzy and collapsed on the kitchen floor. His father noticed that his son’s breathing was irregular and instructed one of his daughters to call an ambulance. Mr. Frields attempted to assist his son’s breathing and massaged his back until emergency personnel arrived. A Mobile Intensive Care Unit (MICU) from the Hospital and an Emergency Medical Technician (EMT) team from the City arrived in response to Frields’ call. The MICU team noted that Billy had vomited and was incontinent before their arrival. Believing that Billy exhibited signs of a drug ­overdose, the MICU personnel administered [a drug] to counteract the effect of any narcotic. Soon thereafter, Billy “woke up.” It is undisputed that when Billy became responsive he resisted mightily the efforts of the ­emergency personnel to subdue him and to transfer him to an ambulance. Several men, including a police officer on the scene, were required to restrain him. Once restrained, the emergency personnel were able to transport him to the ambulance. Billy arrived at the Hospital between 7:50 and 7:55 p.m. He died at 9:02 p.m. An autopsy revealed that he died from a subarachnoid hemorrhage. Mr. Frields filed a wrongful death and survival action against the Hospital and the City based on the actions of the Hospital and City emergency personnel… He complained that the emergency personnel used excessive force in their attempt to restrain his son. He also asserted that the actions by the Hospital and City personnel constituted negligent and intentional infliction of emotional distress. Through several statutes, the Legislature has granted qualified immunity to a wide range of p ­ ersons who provide medical assistance in emergency situations. …[P]aid professionals who respond to a medical emergency and render treatment are immunized pursuant to … the [Illinois] Good Samaritan Act. It provides that any individual, including licensed health care professionals, … who in good faith renders medical care at the scene of an accident or emergency to a victim is immune from damages in a civil action as a result of any act or omission by the person rendering the medical care. [A similar law] provides … good faith immunity to mobile intensive care paramedics; [another] provides a good faith immunity to EMT-intermediates. [The MICU law] provides: No mobile intensive care paramedic, licensed physician, hospital or its board of trustees, officers and members of the medical staff, nurses or other employees of the hospital, first aid, ambulance or rescue squad, or officers and members of a rescue squad shall be liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of advanced life support services in good faith and in accordance with this act. [The EMT law] provides: No EMT-intermediate, licensed physician, hospital or its board of trustees, officers and members of the medical staff, nurses or other employees of the hospital, or officers and members of a first

358  THE LAW OF EMERGENCIES

aid, ambulance or rescue squad shall be liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of intermediate life support services in good faith and in accordance with this act. It is undisputed that the Hospital personnel were members of a mobile intensive care unit and that the City personnel qualify as EMT-intermediates. Therefore, the inquiry is whether they acted in good faith. “Good faith” has been defined as honesty of purpose and integrity of conduct without knowledge, either actual or sufficient to demand inquiry, that the conduct is wrong. … This test recognizes that even a person who acted negligently is entitled to a qualified immunity, if he acted in an objectively reasonable manner. Applying these principles [here], we are satisfied that plaintiff presents proofs that the emergency personnel may have acted negligently; however, any negligence does not strip them of their immunity. Plaintiff contends that the emergency personnel used excessive force to restrain his son. He contends that his son could have been restrained sooner and with less force, if he had been sedated. …[However] Plaintiff’s expert [conceded] that the emergency personnel could not be expected to diagnose a subarachnoid hemorrhage in the field[.] [P]laintiff has failed to present any facts which create a genuine issue of material fact that defendants’ employees did not act in an objectively reasonable manner. Accordingly, the City personnel were immune pursuant to the immunity conferred by [the MICU law], and the Hospital employees were immune pursuant to the terms of [the EMT law].

The phrase “good Samaritan law” is applied to statutes that absolve physicians of liability for negligence when they volunteer to treat someone who is not their patient and who needs immediate care. In a number of states, the good Samaritan law is broader and covers anyone who stops to help someone in need of assistance. Some states have adopted narrowly targeted health care provider immunity laws as well. In Maryland, “a health care provider is immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation” (Md. Public Safety Code § 14-3A-06). Note how important it is to read the text of each statute carefully. Would this Maryland law protect a dentist who continues to see her patients after an earthquake strikes? What additional facts would you need to know in order to answer this question?

Licensure and Emergency Mobilization for Health Practitioners Health care professionals who volunteer in emergency response efforts have concerns with licensure as well as liability. Because physicians (and others) are licensed only by the state in which they practice, they are not authorized to practice medicine beyond the borders of the states where they hold licenses. Obviously, in an emergency, there is no time for volunteers to go

Chapter 20 l Liability Issues for Individuals  359

through the licensing process in the state where their services are needed. (This same issue arises for other licensed professionals as well, but health care presents the most frequent example.) As we noted in Chapter 7, every state has become a party to the Emergency Management Assistance Compact (EMAC), a mutual aid agreement among states. One of the EMAC’s most important provisions allows out-of-state physicians to practice in the state requesting assistance. This temporary exemption from the requesting state’s licensure laws applies only to physicians (and other licensed professionals) who provide aid as part of an organized effort overseen by officials of the responding state. It does not exempt individual doctors who travel to a disaster area from complying with the local licensing requirements. In recent years the federal government has undertaken the development of systems to make emergency response by health care professionals faster and more efficient. Begun in the 1980s primarily to provide auxiliary services to military troops, the National Disaster Medical System (NDMS) has shifted its mission to that of back-up for domestic disaster relief (Franco et al., 2007). NDMS has three functions: Deploying medical personnel, supplies, and equipment to a disaster area Transporting patients out of the disaster areas, by bringing them to staging areas where they can board military aircraft ● Providing medical care at participating hospitals in unaffected areas. ● ●

The key to the system is a network of regionally organized groups of specially trained health professionals and support personnel who volunteer to provide assistance during disasters. Once deployed, they are federalized into temporary employee status and are paid by the ­federal government. NDMS was part of the federal response to Hurricane Katrina. Although it succeeded in evacuating thousands of patients, a Senate report found that medical teams were overwhelmed by the number of patients and were unable to institute a reliable patient tracking system. In 2007, the White House ordered a review of NDMS capacities, which is ongoing. In 2002, Congress directed the Secretary of Health and Human Services to establish an Emergency System for Advance Registration of Volunteer Health Professionals (ESAR-VHP). ESAR-VHP allows advance verification of the credentials, licenses, accreditations, and hospital privileges of those who register (42 U.S. Code § 247d-7b). Even if not covered under EMAC, a physician who is registered with ESAR-VHP can be cleared to travel independently to an emergency response zone and provide assistance. The continuing ESAR-VHP system is a national network of state-based emergency volunteer registries. States are responsible for designing, developing, and administering their respective systems and databases. As Professor James Hodge noted: Ideally, these standardized systems allow states and territories to quickly identify and ­better utilize volunteer health professionals in emergencies and disasters. Ultimately, they may enable the development of an interoperable system that will allow aggregation of state registration systems for use at the regional or national level.

360  THE LAW OF EMERGENCIES

Summary It goes without saying that volunteers play a critical role in the delivery of disaster relief and recovery services. Their involvement also raises a number of legal questions, however, such as when they can recover for injuries if they are harmed while assisting and whether others can recover against them if they cause harm, even inadvertently. The federal Volunteer Protection Act provides a set of standards that serve as the uniform minimum, but states can elect to enact more generous statutes.

Important Terms Emergency Management Assistance Compact Emergency System for Advance Registration of Volunteer Health Professionals ● “Federalized” volunteers ● Good Samaritan laws ● Indemnification ● National Disaster Medical System ● Respondeat superior ● Temporary government employees ● Volunteer Protection Act ● Willful conduct ● Worker compensation laws ● ●

Review Questions Underlying all the questions covered in this chapter are public policy concerns, such as the fear that risk of liability will deter people from volunteering, which would in turn weaken the nonprofit organizations that provide so much assistance during emergencies. What are some other important public policy issues that are relevant to the legal principles in this chapter?

Appendix 1 U.S. Constitution (Excerpts) Article I Section 1 All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2 The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons… When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3 The Senate of the United States shall be composed of two Senators from each State, … for six Years; and each Senator shall have one Vote… No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. 361

362  Appendix 1: U.S. Constitution (Excerpts)

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law…

Section 5 Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6 The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section 7 All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States. If he approve he

Appendix 1: U.S. Constitution (Excerpts)  363

shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law… If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8 The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States To borrow Money on the credit of the United States To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures To provide for the Punishment of counterfeiting the Securities and current Coin of the United States To establish Post Offices and post Roads To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries To constitute Tribunals inferior to the supreme Court To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions

364  Appendix 1: U.S. Constitution (Excerpts)

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9 The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10 No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws; and the

Appendix 1: U.S. Constitution (Excerpts)  365

net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article II Section 1 The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows [description of the Electoral College] … No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section 2 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

366  Appendix 1: U.S. Constitution (Excerpts)

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3 He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 4 The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III Section 1 The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers, and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States between Citizens of different States, *between Citizens of the same State claiming Lands under Grants of different States,

Appendix 1: U.S. Constitution (Excerpts)  367

and between the Citizens thereof,* and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [*as changed by the Eleventh Amendment.]

Amendments [The first ten amendments were ratified in 1789 and are known as the Bill of Rights.]

First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Second Amendment A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Third Amendment No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

368  Appendix 1: U.S. Constitution (Excerpts)

Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Seventh Amendment In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [The Fourteenth Amendment was ratified in 1868.]

Fourteenth Amendment Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers

Appendix 1: U.S. Constitution (Excerpts)  369

of a State, or the members of the Legislature thereof is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3 No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability.

Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.

Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Appendix 2 Stafford Act (Excerpts) § 5122. Definitions As used in this chapter— (1) “Emergency” means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States. (2) “Major disaster” means any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby… § 5132. Disaster warnings (a) Readiness of Federal agencies to issue warnings to State and local officials—The President shall insure that all appropriate Federal agencies are prepared to issue warnings of disasters to State and local officials. (b) Technical assistance to State and local governments for effective warnings—The President shall direct appropriate Federal agencies to provide technical assistance to State and local governments to insure that timely and effective disaster warning is provided. (c) Warnings to governmental authorities and public endangered by disaster—The President is authorized to utilize or to make available to Federal, State, and local agencies the facilities of the civil defense communications system … or any other Federal communications system for the purpose of providing warning to governmental authorities and the civilian population in areas endangered by disasters… § 5133. Predisaster hazard mitigation … (b) The President may establish a program to provide technical and financial assistance to States and local governments to assist in the implementation of predisaster hazard mitigation measures that are cost-effective and are designed to reduce injuries, loss of life, and damage and destruction of property, including damage to critical services and facilities under the jurisdiction of the States or local governments. 371

372  Appendix 2: Stafford Act (Excerpts)

§ 5141. Waiver of administrative conditions Any Federal agency charged with the administration of a Federal assistance program may, if so requested by the applicant State or local authorities, modify or waive, for a major disaster, such administrative conditions for assistance as would otherwise prevent the giving of assistance under such programs if the inability to meet such conditions is a result of the major disaster. § 5143. Coordinating officers (a) Appointment of Federal coordinating officer—Immediately upon his declaration of a major disaster or emergency, the President shall appoint a Federal coordinating officer to operate in the affected area. (b) Functions of Federal coordinating officer—In order to effectuate the purposes of this chapter, the Federal coordinating officer, within the affected area, shall— (1) make an initial appraisal of the types of relief most urgently needed; (2) establish such field offices as he deems necessary and as are authorized by the President; (3) coordinate the administration of relief, including activities of the State and local governments, the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief or disaster assistance organizations, which agree to operate under his advice or direction, except that nothing contained in this chapter shall limit or in any way affect the responsibilities of the American National Red Cross…; and (4) take such other action, consistent with authority delegated to him by the President, and consistent with the provisions of this chapter, as he may deem necessary to assist local citizens and public officials in promptly obtaining assistance to which they are entitled. (c) State coordinating officer—When the President determines assistance under this chapter is necessary, he shall request that the Governor of the affected State designate a State coordinating officer for the purpose of coordinating State and local disaster assistance efforts with those of the Federal Government. (d) Single Federal coordinating officer for multistate area—Where the area affected by a major disaster or emergency includes parts of more than 1 State, the President, at the discretion of the President, may appoint a single Federal coordinating officer for the entire affected area, and may appoint such deputy Federal coordinating officers to assist the Federal coordinating officer as the President determines appropriate. § 5144. Emergency support and response teams (a) Emergency support teams—The President shall form emergency support teams of Federal personnel to be deployed in an area affected by a major disaster or emergency. Such emergency support teams shall assist the Federal coordinating officer in carrying out his responsibilities pursuant to this chapter. Upon request of the President, the head of any Federal agency is directed to detail to temporary duty with the emergency support teams on either a reimbursable or nonreimbursable basis, as is determined necessary by the

Appendix 2: Stafford Act (Excerpts)  373

President, such personnel within the administrative jurisdiction of the head of the Federal agency as the President may need or believe to be useful for carrying out the functions of the emergency support teams, each such detail to be without loss of seniority, pay, or other employee status. (b) Emergency response teams—[The President shall establish a minimum of 3 national response teams; sufficient regional response teams; and other response teams as may be necessary to meet the incident management responsibilities of the Federal Government…] § 5148. Nonliability of Federal Government The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this chapter. § 5149. Performance of services (a) Utilization of services or facilities of State and local governments—In carrying out the purposes of this chapter, any Federal agency is authorized to accept and utilize the services or facilities of any State or local government, or of any agency, office, or employee thereof, with the consent of such government. (b) …In performing any services under this chapter, any Federal agency is authorized— (1) to appoint and fix the compensation of such temporary personnel as may be necessary… (2) to employ experts and consultants …and (3) to incur obligations on behalf of the United States by contract or otherwise for the acquisition, rental, or hire of equipment, services, materials, and supplies for shipping, drayage, travel, and communications, and for the supervision and administration of such activities… § 5151. Nondiscrimination in disaster assistance (a) Regulations for equitable and impartial relief operations The President shall issue, and may alter and amend, such regulations as may be necessary for the guidance of personnel carrying out Federal assistance functions at the site of a major disaster or emergency. Such regulations shall include provisions for insuring that the distribution of supplies, the processing of applications, and other relief and assistance activities shall be accomplished in an equitable and impartial manner, without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status. (b) … As a condition of participation in the distribution of assistance or supplies under this chapter or of receiving assistance under this chapter, governmental bodies and other organizations shall be required to comply with regulations relating to nondiscrimination promulgated by the President, and such other regulations applicable to activities within an area affected by a major disaster or emergency as he deems necessary for the effective coordination of relief efforts.

374  Appendix 2: Stafford Act (Excerpts)

§ 5152. Use and coordination of relief organizations (a) In providing relief and assistance under this chapter, the President may utilize, with their consent, the personnel and facilities of the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief or disaster assistance organizations, in the distribution of medicine, food, supplies, or other items, and in the restoration, rehabilitation, or reconstruction of community services housing and essential facilities, whenever the President finds that such utilization is necessary. (b) The President is authorized to enter into agreements with the American National Red Cross, the Salvation Army, the Mennonite Disaster Service, and other relief or disaster assistance organizations under which the disaster relief activities of such organizations may be coordinated by the Federal coordinating officer whenever such organizations are engaged in providing relief during and after a major disaster or emergency. Any such agreement shall include provisions assuring that use of Federal facilities, supplies, and services will be in compliance with regulations prohibiting duplication of benefits and guaranteeing nondiscrimination promulgated by the President under this chapter, and such other regulation as the President may require. § 5154. Insurance (a) Applicants for replacement of damaged facilities— … An applicant for assistance (relating to repair, restoration, and replacement of damaged facilities)… shall comply with regulations prescribed by the President to assure that, with respect to any property to be replaced, restored, repaired, or constructed with such assistance, such types and extent of insurance will be obtained and maintained as may be reasonably available, adequate, and necessary, to protect against future loss to such property… § 5154a. Prohibited flood disaster assistance (a) General prohibition—Notwithstanding any other provision of law, no Federal disaster relief assistance made available in a flood disaster area may be used to make a payment (including any loan assistance payment) to a person for repair, replacement, or restoration for damage to any personal, residential, or commercial property if that person at any time has received flood disaster assistance that was conditional on the person first having obtained flood insurance under applicable Federal law and subsequently having failed to obtain and maintain flood insurance as required under applicable Federal law on such property… § 5155. Duplication of benefits (a) General prohibition—The President, in consultation with the head of each Federal agency administering any program providing financial assistance to persons, business concerns, or other entities suffering losses as a result of a major disaster or emergency, shall assure that no such person, business concern, or other entity will receive such assistance with respect to any part of such loss as to which he has received financial assistance under any other program or from insurance or any other source.

Appendix 2: Stafford Act (Excerpts)  375

(b) … This section shall not prohibit the provision of Federal assistance to a person who is or may be entitled to receive benefits for the same purposes from another source if such person has not received such other benefits by the time of application for Federal assistance and if such person agrees to repay all duplicative assistance to the agency providing the Federal assistance… § 5157. Penalties (a) Misuse of funds—Any person who knowingly misapplies the proceeds of a loan or other cash benefit obtained under this chapter shall be fined an amount equal to one and onehalf times the misapplied amount of the proceeds or cash benefit. (b) Civil enforcement—Whenever it appears that any person has violated or is about to violate any provision of this chapter, including any civil penalty imposed under this chapter, the Attorney General may bring a civil action for such relief as may be appropriate. Such action may be brought in an appropriate United States district court. (c) Referral to Attorney General—The President shall expeditiously refer to the Attorney General for appropriate action any evidence developed in the performance of functions under this chapter that may warrant consideration for criminal prosecution. (d) Civil penalty—Any individual who knowingly violates any order or regulation issued under this chapter shall be subject to a civil penalty of not more than $5000 for each violation. § 5160. Recovery of assistance (a) Party liable—Any person who intentionally causes a condition for which Federal assistance is provided under this chapter or under any other Federal law as a result of a declaration of a major disaster or emergency under this chapter shall be liable to the United States for the reasonable costs incurred by the United States in responding to such disaster or emergency to the extent that such costs are attributable to the intentional act or omission of such person which caused such condition. Such action for reasonable costs shall be brought in an appropriate United States district court. (b) Rendering of care—A person shall not be liable under this section for costs incurred by the United States as a result of actions taken or omitted by such person in the course of rendering care or assistance in response to a major disaster or emergency. § 5161. Audits and investigations (a) In general—[The] President shall conduct audits and investigations as necessary to assure compliance with this chapter, and in connection therewith may question such persons as may be necessary to carry out such audits and investigations… (c) State and local audits—The President may require audits by State and local governments in connection with assistance under this chapter when necessary to assure compliance with this chapter or related regulations.

376  Appendix 2: Stafford Act (Excerpts)

§ 5165. Mitigation planning (a) As a condition of receipt of an increased Federal share for hazard mitigation measures under subsection (e) of this section, a State, local, or tribal government shall develop and submit for approval to the President a mitigation plan that outlines processes for identifying the natural hazards, risks, and vulnerabilities of the area under the jurisdiction of the government… § 5165f. National Urban Search and Rescue Response System … (c) Functions—In administering the [National Urban Search and Rescue Response] System, the Administrator [of FEMA] shall provide for a national network of standardized search and rescue resources to assist States and local governments in responding to hazards… (l) Preparedness cooperative agreements—Subject to the availability of appropriations for such purpose, the Administrator shall enter into an annual preparedness cooperative agreement with each sponsoring agency. [“Sponsoring agency” means a State or local government that is the sponsor of an urban search and rescue team designated by the FEMA Administrator to participate in the System.] Amounts made available to a sponsoring agency under such a preparedness cooperative agreement shall be for the following purposes: (1) Training and exercises, including training and exercises with other Federal, State, and local government response entities. (2) Acquisition and maintenance of equipment, including interoperable communications and personal protective equipment. (3) Medical monitoring required for responder safety and health in anticipation of and following a major disaster, emergency, or other hazard, as determined by the Administrator. § 5170. Procedure for declaration [of a major disaster] (a) In general—All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As part of such request, and as a prerequisite to major disaster assistance under this chapter, the Governor shall take appropriate response action under State law and direct execution of the State’s emergency plan. The Governor shall furnish information on the nature and amount of State and local resources which have been or will be committed to alleviating the results of the disaster, and shall certify that, for the current disaster, State and local government obligations and expenditures (of which State commitments must be a significant proportion) will comply with all applicable cost-sharing requirements of this chapter. Based on the request of a Governor under this section, the President may declare under this chapter that a major disaster or emergency exists.

Appendix 2: Stafford Act (Excerpts)  377

(b) Indian tribal government requests … The Chief Executive of an affected Indian tribal government may submit a request for a declaration by the President that a major disaster exists consistent with the requirements of subsection (a)… § 5170a. General Federal assistance In any major disaster, the President may— (1) direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical, and advisory services) in support of State and local assistance response or recovery efforts, including precautionary evacuations; (2) coordinate all disaster relief assistance (including voluntary assistance) provided by Federal agencies, private organizations, and State and local governments, including precautionary evacuations and recovery; (3) provide technical and advisory assistance to affected State and local governments … (4) assist State and local governments in the distribution of medicine, food, and other consumable supplies, and emergency assistance; and (5) provide accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate severe damage, which may be provided in the absence of a specific request and in which case the President— (A) shall, to the fullest extent practicable, promptly notify and coordinate with officials in a State in which such assistance or support is provided; and (B) shall not, in notifying and coordinating with a State under subparagraph (A), delay or impede the rapid deployment, use, and distribution of critical resources to victims of a major disaster. § 5170b. Essential assistance (a) In general—Federal agencies may on the direction of the President, provide assistance essential to meeting immediate threats to life and property resulting from a major disaster, as follows: (1) Federal resources, generally—Utilizing, lending, or donating to State and local governments Federal equipment, supplies, facilities, personnel, and other resources, other than the extension of credit, for use or distribution by such governments in accordance with the purposes of this chapter. (2) Medicine, food, and other consumables… (3) Work and services to save lives and protect property… (4) Contributions—Making contributions to State or local governments or owners or operators of private nonprofit facilities for the purpose of carrying out the provisions of this subsection. (b) Federal share—The Federal share of assistance under this section shall be not less than g75 percent of the eligible cost of such assistance. (c) Utilization of DOD resources—During the immediate aftermath of an incident which may ultimately qualify for assistance under this subchapter or subchapter IV-A of this

378  Appendix 2: Stafford Act (Excerpts)

chapter, the Governor of the State in which such incident occurred may request the President to direct the Secretary of Defense to utilize the resources of the Department of Defense for the purpose of performing on public and private lands any emergency work which is made necessary by such incident and which is essential for the preservation of life and property. If the President determines that such work is essential for the preservation of life and property, the President shall grant such request to the extent the President determines practicable. Such emergency work may only be carried out for a period not to exceed 10 days… § 5170c. Hazard mitigation (a) In general—The President may contribute up to 75 percent of the cost of hazard mitigation measures which the President has determined are cost-effective and which substantially reduce the risk of future damage, hardship, loss, or suffering in any area affected by a major disaster. …[T]he total of contributions under this section for a major disaster shall not exceed 15 percent for amounts not more than $2,000,000,000, 10 percent for amounts of more than $2,000,000,000 and not more than $10,000,000,000, and 7.5 percent on amounts of more than $10,000,000,000 and not more than $35,333,000,000 of the estimated aggregate amount of grants to be made (less any associated administrative costs) under this chapter with respect to the major disaster… § 5174. Federal assistance to individuals and households (a) In general (1) Provision of assistance—In accordance with this section, the President, in consultation with the Governor of a State, may provide financial assistance, and, if necessary, direct services, to individuals and households in the State who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means. (2) Relationship to other assistance—Under paragraph (1), an individual or household shall not be denied assistance [[[under paragraph (1), (3), or (4) of subsection (c) of this section]]] solely on the basis that the individual or household has not applied for or received any loan or other financial assistance from the Small Business Administration or any other Federal agency. (b) Housing assistance (1) Eligibility—The President may provide financial or other assistance under this section to individuals and households to respond to the disaster-related housing needs of individuals and households who are displaced from their predisaster primary residences or whose predisaster primary residences are rendered uninhabitable, or with respect to individuals with disabilities, rendered inaccessible or uninhabitable, as a result of damage caused by a major disaster.

Appendix 2: Stafford Act (Excerpts)  379

(2) Determination of appropriate types of assistance (A) In general—The President shall determine appropriate types of housing assistance to be provided under this section to individuals and households described in subsection (a)(1) of this section based on considerations of cost effectiveness, convenience to the individuals and households, and such other factors as the President may consider appropriate. (B) Multiple types of assistance—One or more types of housing assistance may be made available under this section, based on the suitability and availability of the types of assistance, to meet the needs of individuals and households in the particular disaster situation. (c) Types of housing assistance (1) Temporary housing (A) Financial assistance—…The President may provide financial assistance to individuals or households to rent alternate housing accommodations, existing rental units, manufactured housing, recreational vehicles, or other readily fabricated dwellings. Such assistance may include the payment of the cost of utilities, excluding telephone service… (ii) Amount—The amount of assistance …shall be based on the fair market rent for the accommodation provided plus the cost of any transportation, utility hookups, security deposits, or unit installation not provided directly by the President. (B) Direct assistance—…The President may provide temporary housing units, acquired by purchase or lease, directly to individuals or households who, because of a lack of available housing resources, would be unable to make use of the assistance provided under subparagraph (A)… (2) Repairs (A) … The President may provide financial assistance for— (i) the repair of owner-occupied private residences, utilities, and residential infrastructure (such as a private access route) damaged by a major disaster to a safe and sanitary living or functioning condition; and (ii) eligible hazard mitigation measures that reduce the likelihood of future damage to such residences, utilities, or infrastructure… (3) Replacement (A)— … The President may provide financial assistance for the replacement of owner-occupied private residences damaged by a major disaster… (e) Financial assistance to address other needs (1) Medical, dental, child care, and funeral expenses—The President, in consultation with the Governor of a State, may provide financial assistance under this section to an individual or household in the State who is adversely affected by a major disaster to meet disaster-related medical, dental, child care, and funeral expenses.

380  Appendix 2: Stafford Act (Excerpts)

(2) Personal property, transportation, and other expenses—The President, in consultation with the Governor of a State, may provide financial assistance under this section to an individual or household described in paragraph (1) to address personal property, transportation, and other necessary expenses or serious needs resulting from the major disaster… (h) Maximum amount of assistance (1) In general—No individual or household shall receive financial assistance greater than $25,000 under this section with respect to a single major disaster. (2) Adjustment of limit—The limit established under paragraph (1) shall be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor. (i) Verification measures—In carrying out this section, the President shall develop a system, including an electronic database, that shall allow the President, or the designee of the President, to— (1) verify the identity and address of recipients of assistance under this section to provide reasonable assurance that payments are made only to an individual or household that is eligible for such assistance; (2) minimize the risk of making duplicative payments or payments for fraudulent claims under this section; (3) collect any duplicate payment on a claim under this section, or reduce the amount of subsequent payments to offset the amount of any such duplicate payment; (4) provide instructions to recipients of assistance under this section regarding the proper use of any such assistance, regardless of how such assistance is distributed; and (5) conduct an expedited and simplified review and appeal process for an individual or household whose application for assistance under this section is denied. § 5177. Unemployment assistance (a) Benefit assistance—The President is authorized to provide to any individual unemployed as a result of a major disaster such benefit assistance as he deems appropriate while such individual is unemployed for the weeks of such unemployment with respect to which the individual is not entitled to any other unemployment compensation … or waiting period credit. Such assistance as the President shall provide shall be available to an individual as long as the individual’s unemployment caused by the major disaster continues or until the individual is reemployed in a suitable position, but no longer than 26 weeks after the major disaster is declared. Such assistance for a week of unemployment shall not exceed the maximum weekly amount authorized under the unemployment compensation law of the State in which the disaster occurred. The President is directed to provide such assistance through agreements with States which, in his judgment, have an adequate system for administering such assistance through existing State agencies. (b) Reemployment assistance (1) State assistance—A State shall provide, without reimbursement from any funds provided under this chapter, reemployment assistance services under any other law administered by the State to individuals receiving benefits under this section.

Appendix 2: Stafford Act (Excerpts)  381

(2) Federal assistance—The President may provide reemployment assistance services under other laws to individuals who are unemployed as a result of a major disaster and who reside in a State which does not provide such services. § 5177a. Emergency grants to assist low-income migrant and seasonal farmworkers (a) …The Secretary of Agriculture may make grants to public agencies or private organizations with tax exempt status … that have experience in providing emergency services to low-income migrant and seasonal farmworkers where the Secretary determines that a local, State or national emergency or disaster has caused low-income migrant or seasonal farmworkers to lose income, to be unable to work, or to stay home or return home in anticipation of work shortages. Emergency services to be provided with assistance received under this section may include such types of assistance as the Secretary of Agriculture determines to be necessary and appropriate… § 5179. Benefits and distribution (a) Persons eligible; terms and conditions—Whenever the President determines that, as a result of a major disaster, low-income households are unable to purchase adequate amounts of nutritious food, he is authorized, under such terms and conditions as he may prescribe, to distribute through the Secretary of Agriculture or other appropriate agencies benefit allotments to such households pursuant to the provisions of the Food and Nutrition Act and to make surplus commodities available pursuant to the provisions of this chapter. (b) Duration of assistance; factors considered—The President, through the Secretary of Agriculture or other appropriate agencies, is authorized to continue to make such benefit allotments and surplus commodities available to such households for so long as he determines necessary, taking into consideration such factors as he deems appropriate, including the consequences of the major disaster on the earning power of the households, to which assistance is made available under this section… § 5180. Food commodities (a) Emergency mass feeding—The President is authorized and directed to assure that adequate stocks of food will be ready and conveniently available for emergency mass feeding or distribution in any area of the United States which suffers a major disaster or emergency. (b) Funds for purchase of food commodities—The Secretary of Agriculture shall utilize funds to purchase food commodities necessary to provide adequate supplies for use in any area of the United States in the event of a major disaster or emergency in such area. § 5181. Relocation assistance Notwithstanding any other provision of law, no person otherwise eligible for any kind of replacement housing payment under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 shall be denied such eligibility as a result of his being unable, because of a major disaster as determined by the President, to meet the occupancy requirements set by such Act.

382  Appendix 2: Stafford Act (Excerpts)

§ 5182. Legal services Whenever the President determines that low-income individuals are unable to secure legal services adequate to meet their needs as a consequence of a major disaster, consistent with the goals of the programs authorized by this chapter, the President shall assure that such programs are conducted with the advice and assistance of appropriate Federal agencies and State and local bar associations. § 5183. Crisis counseling assistance and training The President is authorized to provide professional counseling services, including financial assistance to State or local agencies or private mental health organizations to provide such services or training of disaster workers, to victims of major disasters in order to relieve mental health problems caused or aggravated by such major disaster or its aftermath. § 5184. Community disaster loans (a) …The President is authorized to make loans to any local government which may suffer a substantial loss of tax and other revenues as a result of a major disaster, and has demonstrated a need for financial assistance in order to perform its governmental functions… § 5185. Emergency communications The President is authorized during, or in anticipation of, an emergency or major disaster to establish temporary communications systems and to make such communications available to State and local government officials and other persons as he deems appropriate. § 5186. Emergency public transportation The President is authorized to provide temporary public transportation service in an area affected by a major disaster to meet emergency needs and to provide transportation to governmental offices, supply centers, stores, post offices, schools, major employment centers, and such other places as may be necessary in order to enable the community to resume its normal pattern of life as soon as possible. § 5187. Fire management assistance (a) …The President is authorized to provide assistance, including grants, equipment, supplies, and personnel, to any State or local government for the mitigation, management, and control of any fire on public or private forest land or grassland that threatens such destruction as would constitute a major disaster… § 5189a. Appeals of assistance decisions (a) Right of appeal—Any decision regarding eligibility for, from, or amount of assistance under this subchapter may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance. (b) Period for decision—A decision regarding an appeal under subsection (a) of this section shall be rendered within 90 days after the date on which the Federal official designated to administer such appeals receives notice of such appeal.

Appendix 2: Stafford Act (Excerpts)  383

§ 5189c. Transportation assistance to individuals and households The President may provide transportation assistance to relocate individuals displaced from their predisaster primary residences as a result of an incident declared under this chapter or otherwise transported from their predisaster primary residences…, to and from alternative locations for short or long-term accommodation or to return an individual or household to their predisaster primary residence or alternative location, as determined necessary by the President. § 5191. Procedure for declaration [of an emergency] (a) Request and declaration—All requests for a declaration by the President that an emergency exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the situation is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As a part of such request, and as a prerequisite to emergency assistance under this chapter, the Governor shall take appropriate action under State law and direct execution of the State’s emergency plan. The Governor shall furnish information describing the State and local efforts and resources which have been or will be used to alleviate the emergency, and will define the type and extent of Federal aid required. Based upon such Governor’s request, the President may declare that an emergency exists. (b) Certain emergencies involving Federal primary responsibility—The President may exercise any authority vested in him by section 5192 of this title or section 5193 of this title with respect to an emergency when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable. The President’s determination may be made without regard to subsection (a) of this section. (c) Indian tribal government requests—…The Chief Executive of an affected Indian tribal government may submit a request for a declaration by the President that an emergency exists consistent with the requirements of subsection (a)… § 5192. Federal emergency assistance (a) …In any emergency, the President may— (1) direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical and advisory services) in support of State and local emergency assistance efforts to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe, including precautionary evacuations;

384  Appendix 2: Stafford Act (Excerpts)

(2) coordinate all disaster relief assistance (including voluntary assistance) provided by Federal agencies, private organizations, and State and local governments; (3) provide technical and advisory assistance to affected State and local governments… (4) provide emergency assistance through Federal agencies; (5) remove debris…; (6) provide assistance in accordance with section 5174 of this title; (7) assist State and local governments in the distribution of medicine, food, and other consumable supplies, and emergency assistance; and (8) provide accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate severe damage, which may be provided in the absence of a specific request and in which case the President— (A) shall, to the fullest extent practicable, promptly notify and coordinate with a State in which such assistance or support is provided; and (B) shall not, in notifying and coordinating with a State under subparagraph (A), delay or impede the rapid deployment, use, and distribution of critical resources to victims of an emergency. (b) General—Whenever the Federal assistance provided under subsection (a) of this section with respect to an emergency is inadequate, the President may also provide assistance with respect to efforts to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe, including precautionary evacuations… § 5193. Amount of assistance (a) …The Federal share for assistance provided [in the event of an emergency] shall be equal to not less than 75 percent of the eligible costs…

Glossary of Legal and Legislative Terms* Acquittal  A jury verdict, or the finding of a judge, that a criminal defendant is not guilty; technically, a verdict that the evidence against the defendant is insufficient to prove the individual’s guilt beyond a reasonable doubt. Act  A bill passed by the Legislature and signed into law by the President or Governor. Administrative Law Judge (ALJ)  A judge who is appointed to conduct trials and adjudicate claims which arise in administrative law proceedings, such as challenges to fines imposed by a government agency or to denial of benefits. Affidavit  A statement in writing, made under oath. Affirm  An appellate court term meaning that it has concluded that the lower court decision is correct and will stand as rendered by the lower court. Answer  A document (pleading) filed by a defendant in a civil case that responds to each allegation of fact and statement of legal claim contained in the plaintiff’s complaint. APA Rule Making  Procedures set forth in the Administrative Procedure Act that generally require agencies, when adopting regulations, to give public notice, receive and consider public comments, and have the regulations published in the Federal Register. A comparable process occurs at the state level. Apex court  The highest court, or court of last resort, in each state; the specific names of such courts vary from state to state. Appellant  The party who appeals a lower court’s decision. Appellee  The party who opposes an appellant’s appeal, and who seeks to persuade the appeals court to affirm the lower court’s decision. Article III  The part of the Constitution that establishes the federal judiciary, including the Supreme Court, and sets the basic principles by which federal courts must operate. Article III judge  A federal court judge who is appointed for life tenure (subject to the “good behavior” requirement) under Article III of the Constitution. Article III judges are nominated by the President and confirmed by the Senate. Attorney General  The head of the U.S. Department of Justice (or equivalent state agency) who has the duty of representing the nation (or state) in litigation. The U.S. Attorney General is appointed by the President and serves as a member of the Cabinet. Bench trial  A trial without a jury, in which the judge serves as the fact-finder.

*

 Adapted from U.S. Courts web page: http://www.uscourts.gov/Home.aspx.

385

386  Glossary of Legal and Legislative Terms

Bicameral  Legislature consisting of two chambers; e.g. the U.S. Congress consists of the House of Representatives and the Senate. Bill  A proposed law introduced by a member of the legislature, but not (or not yet) enacted. Brief  A written statement submitted in a trial or appellate proceeding that explains one side’s legal and factual arguments. Burden of proof  The duty on a party to prove disputed facts by a certain standard. Beyond a reasonable doubt is the burden that applies in criminal cases, meaning that the government must demonstrate the defendant’s guilt by evidence that leaves no question in the mind of a reasonable person. Preponderance of evidence is the burden that applies in almost all civil cases, meaning that the plaintiff must demonstrate that it is more likely than not that the defendant is liable. Clear and convincing evidence is a standard that applies in civil cases in which the possible outcome is not imprisonment but from which there are especially severe consequences, e.g., termination of parental rights. Case law  The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions. Cause of action  A legal claim. Certiorari  Latin, meaning to more fully inform. In the Supreme Court, granting a writ of certiorari means that the Court has decided to review a case from a lower court. Chambers  The offices of a judge and his or her staff. Chief Judge  In the federal courts, the judge who has primary responsibility for the administration of a District Court or Court of Appeals; chief judges are determined by seniority (see Federal Court System). Chief Justice  Often called “the first among equals,” the Chief Justice of the United States manages the administrative side of the Supreme Court’s operations, in addition to participating in decisions. The President selects the Chief Justice when there is a vacancy in that position. The other members of the Supreme Court are called Associate Justices. Circuit Court  In the federal court system, the Courts of Appeals are often called “circuit courts,” because they are organized by geographic areas that were once where judges “rode circuit” to decide cases by going from place to place within the given area. There are 11 geographic circuits in the United States. A judge who is a member of one of these Courts of Appeals is often called a “circuit judge” (see Federal Court System). Civil case  A case between two or more parties to adjudicate claims arising under provisions of law that do not involve criminal penalties. Examples of civil cases include contracts, personal injury, and constitutional claims. Class action  A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The trial court must find (“certify”) that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action. Common law  The legal system that originated in England and is now in use in the United States and other former British colonies, which relies on the articulation of legal principles through a series of judicial decisions. Common law principles can be changed by legislation (see also Precedent). Complaint  A document (pleading) filed by the plaintiff that begins a civil lawsuit, which consists of allegations of fact and identification of the legal bases for the plaintiff’s claims. Committee Report The formal report of a legislative committee prepared after the committee has voted to send a bill to the floor for a vote by the full chamber. The committee report describes the reasons for

Glossary of Legal and Legislative Terms  387

adoption of the bill and may address questions of how it is to be interpreted. Members of the committee who oppose the bill often file a dissent that is also included in the committee report. Conference Committee  A joint committee composed of members from both chambers of the legislature who meet to reconcile the differences between the versions of a bill passed by the different chambers. Conference Report  Amendments to a bill that are agreed upon by a majority of the Conference Committee and which then become part of the final legislation, if it is passed in this form by each chamber. Contract  An agreement between two or more people that creates an obligation to take or not to take a particular action. Counsel  Legal advice; a term also used to refer to the lawyers in a case. Criminal case  The prosecution of an individual or organization for violation of a law that carries criminal penalties, i.e., imprisonment and/or a fine. Damages  Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct). Declaratory Judgment  A judge’s ruling that clarifies the rights or obligations of the party who seeks it. For example, a plaintiff may seek a declaratory judgment that a particular statute or proposed government action violates a constitutional right. De facto  Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law. Default judgment  A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint. Defendant  In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime. De jure  Latin, meaning “in law;” something that exists by operation of law. De novo  Latin, meaning “anew.” A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge’s ruling. Deposition  An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, as part of discovery (see Discovery). Dicta  A short version of the Latin phrase “obiter dictum,” meaning portions of a court’s decision and reasoning that are not essential to the resolution of case; cannot properly be considered as precedent. Discovery  Procedures used in civil cases by which each party can obtain disclosure of another party’s evidence before trial. Disposition  The final order, or the final portion of an opinion, in which the court formally declares that a case will end in a certain way; dismissals, grants of judgment, and reversals are examples of dispositions. District Court  In the federal court system, the trial (lowest) level courts are called District Courts. The Districts are organized into smaller geographic areas than are the Circuits; multiple Districts comprise a Circuit (see Circuit Court, Federal Court system). Diversity jurisdiction  Jurisdiction given to federal courts for cases in which all plaintiffs reside in states different from those where any of the defendants reside. “Drop” a bill  Slang used in the U.S. Congress to refer to introducing legislation. En banc  French, meaning “on the bench.” A case in which all judges of a U.S. Court of Appeals are sitting together to render a decision, as opposed to the typical situation in which a panel of three judges will decide a case. An en banc panel is convened if a majority of judges in the circuit vote to have the case heard by the full bench instead of a panel.

388  Glossary of Legal and Legislative Terms

Equitable  Pertaining to civil suits in “equity” rather than in “law.” In English legal history, the courts of “law” could order only the payment of money damages and no other remedy. A separate court of “equity” could order someone to take certain actions or cease to take certain actions, usually by issuing an injunction. In the United States, the powers of law and equity have been combined into a unitary system, in both federal and state courts. Evidence  The body of information, presented in sworn testimony or authenticated documents, that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other. Exclusionary rule  Doctrine that bars the admission of evidence in a criminal trial that was obtained in violation of the defendant’s constitutional or statutory rights. Ex parte  A proceeding brought before a court by one party only, without notice to or challenge by the other side. Expert witness  A witness who has been ruled by the trial court judge as an expert in a recognized professional field. Expert witnesses, unlike fact witnesses, are allowed to state their opinions. Fact finder  In a jury trial, the jury determines the facts of what happened, based on the evidence. If there is no jury, the judge performs two functions: determining the facts and ruling on questions of law. Federal Court system  The federal court system has three levels: trial courts, called District Courts; appellate courts, called Courts of Appeals (also known as “circuit courts”); and the U.S. Supreme Court. Federal question jurisdiction  Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. Felony  A serious crime, usually punishable by at least one year in prison (compare Misdemeanor). Fine  A penalty established for violation of a criminal law or a noncriminal statutory obligation. It is paid to the court, not to the opposing party. Fiscal year  The accounting year for an organization, which may or may not be the same as the calendar year. For the U.S. government, the fiscal year begins October 1 and runs through the following September 30. Another fiscal year in common use is from July 1 to June 30. Grand jury  A grand jury is composed of from 16 to 23 persons who consider evidence of criminal allegations, and determine whether there is probable cause to believe that an individual committed an offense. If so, they return an indictment. Guidance  Government agencies issue “guidance” documents for several purposes, including to clarify regulations and to set rules for grant administration. Guidance is referred to as “sub-regulatory,” meaning that it does not go through the full APA rulemaking procedure. Habeas corpus  Latin, meaning “you have the body.” A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner’s continued confinement. Federal judges receive petitions for a writ of habeas corpus from state prison inmates who say their state prosecutions violated federally protected rights in some way. Holding  The portion of a court’s decision that can be cited as precedent in a future case. Home confinement  A court order that requires an individual to remain at home, with possible exceptions for specific activities such as work and medical appointments. Home confinement may include the use of electronic monitoring equipment—a transmitter attached to the wrist or the ankle—to help ensure that the person stays at home as required. It is sometimes used in connection with isolation orders imposed as a result of an individual’s exposure to a communicable disease. In camera  Latin, meaning in a judge’s chambers. It signals that something is to occur outside the presence of the jury or the public.

Glossary of Legal and Legislative Terms  389

Indictment  The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies (see also Information). In forma pauperis  Latin meaning “in the manner of a pauper.” Permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them. Information  A formal accusation by a government attorney that the defendant committed a misdemeanor. Injunction  A court order preventing one or more named parties from taking some action. A permanent injunction is issued after a trial. A preliminary injunction is before trial, usually to ensure that the status quo remains in effect until the court can fully adjudicate the case. Interrogatories  Written questions that can be served on an opposing party during discovery, that have to be answered in writing and under oath (see also Discovery). Judgment  The official decision of a court finally resolving the dispute between the parties to the lawsuit (see also Order and Ruling). Jury (Trial jury)  The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact (see also Grand Jury). Jury instructions  A judge’s directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply to those facts in order to reach a verdict. Lawsuit  A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff. Litigants  The parties to a lawsuit (plaintiffs and defendants). Litigation  A case or lawsuit. Magistrate Judge  A judicial officer of a U.S. District Court who is assigned to conduct relatively minor matters, such as pre-trial proceedings. Magistrate Judges are selected by the panel of judges in each District. They serve for a specific term and are not considered to be Article III judges. Mark up  A legislative committee meeting during which a bill is amended into a form that the majority of members of the committee will support. Misdemeanor  A criminal offense punishable by one year of imprisonment or less (compare Felony). Mistrial  An invalidated trial, caused by a fundamental error. When a mistrial is declared, the trial must be held again and a new jury selected. Moot  Not subject to a court ruling because the controversy has not actually arisen or has ended. Motion  A request by a litigant to a judge for a decision on an issue relating to the case. Nolo contendere  No contest. A plea of nolo contendere has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose. Opinion  A judge’s written explanation of the reasons for the decision of the court. In appellate cases, which usually are heard by three or more judges, there can be multiple opinions. The opinion of the court is that joined by a majority of the judges and written by one member of the majority. It is the only opinion that creates precedent. A concurring opinion agrees with the outcome of the majority opinion as to which party should prevail, but offers further comment or clarification or even an entirely different reason for reaching the same result. A dissenting opinion reaches a different result from the majority and contains arguments supporting a ruling in favor of the losing party. (see also Precedent).

390  Glossary of Legal and Legislative Terms

Oral argument  An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions. Order  The direction by a judge or panel of judges issued to a party or attorney commanding that individual take or not take certain action; the direction to the clerk of court to take certain actions with regard to a pending case. Override  A legislative reversal of a veto by the President or Governor. In the U.S. Congress, a two-thirds majority of each chamber is required to override a Presidential veto. Overturn  An appellate court’s decision to invalidate or overrule a previous decision in an earlier case. Parties  The plaintiff(s) and defendant(s) to a civil lawsuit. Per curiam  Latin, meaning “for the court.” In appellate courts, the term often refers to an unsigned opinion. Plaintiff  A person or organization that files a formal complaint in a civil case. Pleadings  Written statements filed with the court which set out, in numbered paragraphs, a party’s legal or factual assertions or denials as to the facts and legal claims in the case. Precedent  A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally follow precedent—meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case. Probable cause  A reasonable ground for suspicion that an individual committed a crime, supported by facts and circumstances that would lead a reasonable person to believe that it is more likely than not that the offense was committed; generally the standard for the police to secure a warrant. Pro se  Representing oneself; serving as one’s own lawyer. Prosecute  To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government. Public Defender  An attorney employed by the court system on a full-time basis to provide legal defense to defendants who are unable to afford counsel. Regulation  A binding rule issued by a government agency in furtherance of a statute that is that agency’s duty to enforce. Regulations must go through a formal rulemaking procedure prior to their issuance (see APA Rulemaking Procedure). Relief  The remedies being sought by a plaintiff in a civil case. Remand  To send a case back to a lower court. Reverse  The act of a court setting aside the decision of a lower court in the same case. Ruling  A judicial decision, or part of the decision, that resolves a question of law. Senior Judge  A federal court judge who, after attaining the requisite age and length of judicial experience, takes senior status, thus creating a vacancy among a court’s active judges, even though he or she may continue to hear a reduced number of cases. Sentence  The punishment ordered by a court for a defendant convicted of a crime. Service of process  The delivery of pleadings or summonses to the appropriate party. Settlement  Parties to a lawsuit often resolve their dispute without having a trial. Settlements may involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault. Standard of review  The level of scrutiny to be applied by an appellate court.

Glossary of Legal and Legislative Terms  391

Statute  A law passed by a legislature. State’s Attorney  An attorney that represents state government; the terminology varies by state, but the term usually refers to attorneys that handle civil litigation (see District Attorney). Statute of limitations  The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged. Sua sponte  Latin, meaning “of its own will.” Often refers to a court taking an action in a case without being asked to do so by either side. Subpoena  A written command to a witness, issued under a court’s authority, to appear and give testimony. Subpoena duces tecum  A written command to a witness to appear and produce documents. Sub-regulatory  The process for a government agency to issue nonbinding directions and instructions to regulated entities; does not involve APA rule making. Summary judgment  A decision made on the basis of statements and evidence presented for the record without a trial. Summary judgment is granted when—on the undisputed facts in the record—one party is entitled to judgment as a matter of law. Temporary restraining order  Akin to a preliminary injunction, it is a judge’s short-term order forbidding certain actions until a full hearing can be conducted; often referred to as a TRO. Testimony  Evidence presented orally by witnesses during trials or before grand juries. Tort  A civil, not criminal, wrong; a negligent or intentional injury against a person or property. The term does not include a breach of contract. U.S. Attorney  A lawyer appointed by the President in each judicial district to prosecute and defend civil and criminal cases for the federal government. The U.S. Attorney employs a staff of Assistant U.S. Attorneys who are not political appointees. Each U.S. Attorney reports to the Attorney General. Uphold  The appellate court agrees with the lower court decision and allows it to stand (see Affirm). Venue  The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another. Verdict  The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case. Voir dire  Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge. Warrant  Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.

References Judicial Decisions Adkins v. California, 50 Cal. App. 4th 1802 (1996). American Federation of Teachers v. Kanawha County Board of Education, 592 F. Supp.2d 883 (S.D.W.Va. 2009). Aslakson v. United States, 790 F.2d 688 (8th Cir. 1986). Berkovitz v. United States, 486 U.S. 531 (1988). Bernal v. Fainter, 467 U.S. 216 (1984). Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985). Boos v. Barry, 485 U.S. 312 (1988). Bowsher v. Synar, 478 U.S. 714 (1986). Briscoe v. Potter, 355 F.Supp.2d 30 (D.D.C. 2004). Brooklyn Center for Independence of the Disabled v. Bloomberg, 980 F.Supp.2d 588 (S.D.N.Y. 2013). Boumediene v. Bush, 553 U.S. 723 (2008). California-Nevada Methodist Homes, Inc. v. FEMA, 152 F. Supp.2d 1202 (N.D. Cal. 2001). Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 525 (1989). Carroll Towing v. United States, 159 F.2d 169 (2d Cir. 1947). Chisholm v. Georgia, 2 U.S. 419 (1793). City of Chicago v. Federal Emergency Management Agency, 2013 WL 1222348 (N.D. Ill. 2013). City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). City of Houston v. Dep’t of Housing and Urban Development, 24 F.3d 1421 (D.C. Cir 1994). City of Newark v. U.S. Dep’t of Labor, 2 F.3d 31 (3d Cir. 1993). Claflin v. Houseman, 93 U.S. 130 (1876). Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). Communities Active Living Independent and Free (CALIF) v. City of Los Angeles, 2011 WL 4595993, 2011 U.S. Dist. LEXIS 1183 (C.D.Ca. 2011). Cougar Business Owners Ass’n v. State, 647 P.2d 481 (Wash. 1982). Customer Company v. City of Sacramento, 895 P.2d 900 (Cal. 1995). Davidson v. Commonwealth, 395 N.E.2d 1314 (Mass. 1979). DeShaney v. Winnebago County, 489 U.S. 189 (1989). Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982). Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Ex parte Young, 209 U.S. 123 (1908). Fairfield v Occupational Safety & Health Review Commission, 285 F.3d 499 (6th Cir. 2002).

393

394 References

Florida Department of Agriculture v. Haire, 836 So.2d 1040 (Fla. 2003). Franco-Italian Packing Co. v. United States, 130 Ct. Cl. 736 (1955). Frazer v. City of Chicago, 57 N.E. 1055 (Ill. 1900). Frields v St. Joseph’s Hospital and Medical Center, 702 A.2d 353 (N.J. Sup. Ct. App. Div. 1997). Freeman v. United States, 2009 U.S. App. LEXIS 1885 (5th Cir. 2009). Greene v. Edwards, 263 S.E.2d 661 (W.Va. 1980). Hamdan v. Rumsfeld, 548 U.S. 567 (2006). Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hayden v. United States, 748 F. Supp. 797 (D. Kan. 1990). Harlow v. Fitzgerald, 457 U.S. 800 (1982). House v. Los Angeles County Flood Control District, 153 P.2d 950 (Cal. 1944). Housing Authority of City of Carrollton v. Ayers, 88 S.E.2d 368 (Ga. 1955). Howlett v. Rose, 496 U.S. 356 (1990). In re Antoinette R., 630 N.Y.S.2d 1008 (Sup. Ct. NY 1995). In re World Trade Center Disaster Site Litigation, 456 F.Supp.2d 520 (S.D.N.Y. 2006). In the Matter of City of Kenner, CBCA 4086, 2015 WL 545141 (U.S. Civilian Board of Contract Appeals 2015). In re Katrina Canal Breaches, 696 F.3d 436 (5th Cir. 2012). Jacobson v. Massachusetts, 197 U.S. 11 (1905). Jew Ho v. Williamson, 103 F. 10 (C.C. N.D. Cal. 1900). Kansas v. United States, 748 F. Supp. 797 (D.Kan. 1990). Donna Prince L. v. Waters, 850 N.Y.S.2d 803 (App.Div. 2008). Lau v. Nichols, 414 U.S. 563 (1974). Lawrence v. Texas, 539 U.S. 558 (2003). Mathews v. Diaz, 426 U.S. 67 (1976). McWaters v. FEMA I, 408 F.Supp.2d 221 (E.D.La. 2005). McWaters v. FEMA II, 436 F. Supp.2d 802 (E.D.La. 2006). Miami Area Local, American Postal Workers Union v. U.S. Postal Service, 173 F.Supp.2d 1322 (S.D. Fl. 2001). Michigan v. Clifford, 464 U.S. 287 (1984). Michigan v. Tyler, 436 U.S. 499 (1978). Miller v. Campbell County, Wyoming, 722 F.Supp. 687 (D.Wyo. 1989), aff’d 945 F.2d 348 (10th Cir. 1991). Missouri v. Pruneau, 652 S.W.2d 281 (Mo. Ct. App. 1983). Momans v. St. John’s Northwestern Military Academy, Inc., 2000 WL 33976543 (N.D. Ill. 2000). Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Insur. Co., 463 U.S. 29 (1983). National Tax-Litigation Committee v. Schwarzenegger, 8 Cal. Rptr.3d 4 (Ct. App. Dist. 3 2004). New Jersey v. T.L.O., 469 U.S. 325 (1985). New York v. United States, 505 U.S. 144 (1992). New York State Elec. & Gas Corp. v. Secretary of Labor, 88 F.3d 98 (2d Cir. 1996). Odello Brothers v. County of Monterey, 63 Cal.App.4th 778 (Cal. Ct. App. 1998). Oklahoma City v. Vetter, 179 P. 473 (Okla. 1919).

References 395

People v. Clements, 661 P.2d 267 (Colo. 1983). People v. Molnar, 774 N.E.2d 738 (N.Y. 2002). Planned Parenthood of Southeastern Pennsyvania v. Casey, 505 U.S. 833 (1992). Poe v. Ullman, 367 U.S. 497 (1961). Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Romer v. Evans, 517 U.S. 620 (1996). Sabine Pilot Service v. Hauck, 687 S.W.2d 733 (Tex. 1985). Safeway Inc. v. Occupational Safety & Health Review Commission, 382 F.3d 1189 (10th Cir. 2004). Smith v. Avino, 91 F.3d 105 (11th Cir. 1996). South Dakota v. Dole, 483 U.S. 203 (1987). South Dakota Department of Health v. Heim, 357 N.W.2d 522 (S.D. 1984). Souvannarath v. Hadden, 95 Cal. App. 4th 1115 (5th Dist. Cal. 2002). Thames Shipyard and Repair Co. v. United States, 350 F.3d 247 (1st Cir. 2003). United States v. Alvarez, 567 U.S.___, 132 S.Ct. 2537 (2012). Trotter v. School District 218, 733 N.E.2d 363 (Il. 2000). United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). United States v. Caltex, Inc., 344 U.S. 149 (1952). United States v. Hebron, 684 F.3d 554 (5th Cir. 2012). United States v. Nixon, 418 U.S. 683 (1974). United States v. Pacific Railroad, 120 U.S. 227 (1887). Washington v. Glucksberg, 521 U.S. 702 (1997). Wilson v. Layne, 526 U.S. 603 (1999). Wong Wai v. Williamson, 103 F. 1 (C.C.N.D. Cal.1900). Worthington v. Fauver, 440 A.2d 1128 (N.J. 1982). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Statutes Administrative Procedures Act, 5 U.S. Code §§ 500 et seq. Americans with Disabilities Act, 42 U.S. Code § 12101 et seq. Civil Rights Act of 1964, 42 U.S. Code § 2000 et seq. Emergency Management Assistance Compact, Public Law 104-321, 110 Stat. 3879. Emergency Medical Treatment and Active Labor Act, 42 U.S. Code §§ 1395dd. Emergency System for Advance Registration of Volunteer Health Professionals, 42 U.S. Code § 247d-7b. Family Medical Leave Act, 24 U.S. Code § 201 et seq. Federal Labor-Management Relations Act, 29 U.S. Code §§ 141 et seq. Federal Tort Claims Act, 28 U.S. Code § 1346(b)(1). Homeland Security Act, 6 U.S. Code §101 et seq. Insurrection Act, 10 U.S. Code §§ 331–334. International Emergency Economic Powers Act, 50 U.S. Code §§ 1701–1706.

396 References

Maryland Emergency Management Act, Md. Public Safety Code §§ 14-101–14-115. The Military Commissions Act, 10 U.S. Code §§ 948 et seq. Model State Emergency Health Powers Act, available at http://turningpointprogram.org/Pages/ph_stat_mod. html. National Emergencies Act, 50 U.S. Code §§ 1601–1605. New Jersey Emergency Health Powers Act, N.J. Statutes, Title 26, Section 13. Occupational Safety and Health Act, 29 U.S. Code § 651 et seq. Pandemic and All-Hazards Preparedness Act, Public Law 109-417. Posse Comitatus Act, 18 U.S. Code § 1385. Project Bioshield Act, Public Law 108-276. Public Health Security and Bioterrorism Preparedness and Response Act, Public Law 107-188. Public Health Service Act, 42 U.S. Code §§ 264–271. Rehabilitation Act of 1974 (“Section 504”), 29 U.S. Code § 701 et seq. [Robert T.] Stafford Disaster Relief and Emergency Assistance Act, 42 U.S. Code §§ 5121 et seq. USA PATRIOT Act, Public Law 107-56. Volunteer Protection Act, 42 U.S. Code §§ 14500 et seq. The War Powers Resolution, 50 U.S. Code §§ 1541–1548.

Books and Book Chapters Aolain, F. N., & Gross, O. (2006). Law in times of crisis: Emergency powers in theory and practice. New York: Cambridge University Press. Banks, W. C., & Dycus, S. (2016). Soldiers on the home front. Cambridge, Massachusetts: Harvard University Press. Barry, J. M. (1997). The great Mississippi flood of 1927 and how it changed America. New York: Simon & Schuster. Bellia, P. L. (2009). The story of the steel seizure case. In C. H. Schroeder & C. A. Bradley (Eds.), Presidential power stories. New York: Foundation Press. Breyer, S. (2015). The Court and the world: American law and the new global realities. New York: Alfred A. Knopf. Cooper, C., & Block, R. (2006). Disaster: Hurricane Katrina and the failure of homeland security. New York: Times Books. Crusto, M. F. (2015). Involuntary heroes: Hurricane Katrina’s impact on civil liberties. Durham: Carolina Academic Press. Dauber, M. L. (2013). The sympathetic state: Disaster relief and the origins of the American welfare state. Chicago: The University of Chicago Press. Duffy, J. (1992). The sanitarians: A history of American public health. Urbana: University of Illinois Press. Dyson, M. E. (2006). Come hell or high water: Hurricane Katrina and the color of disaster. New York: Basic Civitas: A Member of the Perseus Book Group. Ellis, J. J. (2015). The quartet: Orchestrating the second American Revolution, 1783–1789. New York: Alfred A. Knopf. Hamilton, A., Jay, J., & Madison, J. (1787). The Federalist Papers. Available at http://www.let.rug.nl/usa/ documents/1786-1800/the-federalist-papers/. Goodman, R. A., et al. (2003). Law in public health practice. New York: Oxford. Gostin, L. O. (2014). Global Health Law. Cambridge, Massachusetts: Harvard University Press.

References 397

Gostin, L. O. (2008). Public health law: Power, duty, restraint. Berkeley: University of California Press. Johnsen, D. E. (2009). The Story of Hamden v. Rumsfeld: Trying enemy combatants by Military Commission. In C. H. Schroeder & C. A. Bradley (Eds.), Presidential Power Stories. New York: Foundation Press. Hartman, C., & Squires, G. D. (2006). There is no such thing as a natural disaster: Race, class, and Hurricane Katrina. New York: Routledge. Heinzerling, L., & Tushnet, M. (2006). The regulatory and administrative state: Materials, cases, comments. New York: Oxford. Marcus, M. (1977). Truman and the steel seizure case: The limits of presidential power. New York: Columbia University Press. Markel, H. (1997). Quarantine! East European Jewish immigrants and the New York City epidemics of 1892. Baltimore: Johns Hopkins Press. Novak, W. J. (1996). The people’s welfare: Law & regulation in nineteenth-century America. Chapel Hill: University of North Carolina Press. Posner, R. A. (2004). Catastrophe: Risk and Response. New York: Oxford University Press. Posner, R. A. (2006). Not a Suicide Pact: The Constitution in a Time of National Emergency. New York: Oxford University Press. Rivlin, G. (2015). Katrina: After the Flood. New York: Simon & Schuster. Rehnquist, W. H. (2000). All the Laws but One: Civil Liberties in Wartime Vintage. New York: Vintage Books. Waugh, W. L., Jr. (2006). Shelter from the storm: Repairing the National Emergency Management System after Hurricane Katrina. Thousand Oaks: SAGE Publications. Whitley, J. D., & Zusman, L. K. (2009). Homeland security: Legal and policy issues. Chicago: ABA Publishing.

Articles and other materials Abbott, E. B. (2005). Representing local governments in catastrophic events: DHS/FEMA response and recovery issues. Urban Lawyer, 467. Ackerman, B. (2006). Terrorism and the constitutional order. Fordham Law Review, 475. Ackerman, B. (2003). The Emergency Constitution. Yale Law Journal, 1011. American Civil Liberties Union and Yale Global Health Justice Partnership. (2015). Fear, politics and Ebola: How quarantines hurt the fight against Ebola and violate the Constitution. Available at https://www.aclu. org/sites/default/files/field_document/aclu-ebolareport.pdf. Arras, J. D. (2006). Rationing vaccine during an avian influenza pandemic: Why it won’t be easy. Yale Journal of Biology and Medicine, 78. Barbera, J., et al. (2001). Large-scale quarantine following biological terrorism in the United States. Journal of the American Medical Association, 2711. Batlan, F. (2007). Law in the time of cholera: Disease, state power, and quarantine past and future. Temple Law Review, 53. Bea, K. (2007). Federal emergency management policy changes after Hurricane Katrina: A summary of statutory provisions. Congressional Research Service RL, 33729. Binder, D. (2002). Emergency action plans: A legal and practical blueprint: ‘Failing to plan is planning to fail. University of Pittsburgh Law Review, 791. Center for Counterproliferation Research, National Defense University. (2002). Anthrax in America: A chronology and analysis of the fall 2001 anthrax attacks. Available at http://www.ndu.edu/centercounter/prolif_ publications.htm (last visited May 7, 2009). Cohn, A. D. (2005). Mutual aid: Intergovernmental agreements for emergency preparedness and response. Urban Lawyer, 1.

398 References

Cole, D. (2004). The priority of morality: The emergency constitution’s blind spot. Yale Law Journal, 1753. Congressional Budget Office. (2006). A potential influenza epidemic. Available at http://cbo.gov/publications/ collections/influenza.cfm. Cooper, S. (May 2006). Test case: A preview of disruption. Harvard Business Review. Crusto, M. F. (2015). State of emergency: An emergency constitution revisited. Loyola Law Review, 471. Cutter, S. (2006). The geography of social vulnerability: Race, class and catastrophe. Available at http://understandingkatrina.ssrc.org/Cutter/. Cutter, S. L. & Smith, M. M. (2009). Fleeing from the hurricane’s wrath: Evacuation and the two Americas. Available at http://www.environmentmagazine.org/archives/back%20issues/march-april%202009/cuttersmith-full.html. Dana, C. L. (1916, January 2). Urges state to turn over quarantine to U.S., In New York Times. Decker, J. F. (2009). Emergency circumstances, police responses, and Fourth Amendment restrictions. Journal of Criminal Law & Criminology, 433. Efriat, A. (2009, May 7). Public safety v. civil liberties: Health crisis leads to new case. Wall Street Journal. Enarson E. (2006). Women and girls last?: Averting the second post-Katrina disaster. Available at http://understandingkatrina.ssrc.org/Enarson/. Fairchild, A., et al. (2006). Ethical and legal challenges posed by mandatory hurricane evacuation: Duties and limits. Columbia University Academic Commons Available at https://academiccommons.columbia.edu/ catalog/ac%3A155445. Farber, D. A. (2007). Disaster law and inequality. Law & Inequality, 297. Feinberg, D. L. (2006). Hurricane Katrina and the public health-based argument for greater federal involvement in disaster preparedness and response. In Virginia Journal of Social Policy & Law, 13, 596. Fidler, D. P. (2001). Legal issues surrounding public health emergencies. Public Health Reports. Franco, C., et al. (2007). The National Disaster Medical System: Past, present and suggestions for the future. Biosecurity and Bioterrorism, 319. Gould, R. M., & Stern, S. (2004). Catastrophic threats and the Fourth Amendment. Southern California Law Review, 777. Gostin, L. O., et al. (2002). The Model State Emergency Health Powers Act: Planning for and response to bioterrorism and naturally occurring infectious diseases. Journal of the American Medical Association, 622. Gostin, L. O. (2003). When terrorism threatens health: How far are limitations on personal and economic liberties justified? Florida Law Review, 1105. Greenberger, M. (2006). The Alphonse and Gaston of governmental response to national public health emergencies: Lessons learned from Hurricane Katrina for the federal government and the states. Administrative Law Review, 61. Hodge, J. G. (2008). Principles and practice of legal triage, during public health emergencies. NYU Annual Survey of American Law, 249. Hodge, J. G., et al. (2005). The legal framework for meeting surge capacity through the use of volunteer health professionals during public health emergencies and other disasters. Journal of Contemporary Health Law & Policy, 5. Hoffman, S. (2009). Preparing for disaster: Protecting the most vulnerable in emergencies. University of California-Davis Law Review, 1491. Kinlaw, K., Levine, R. (2007). Ethical guidelines in pandemic influenza. Available at http://www.cdc.gov/od/ science/phethics/guidelinesPanFlu.htm. Kosar, K. R. (2005). Disaster response and appointment of a recovery czar: The executive branch’s response to the flood of 1927. Congressional Research Service (RL33126).

References 399

Landis, M. L. (1998). “Let me next time be ‘tried by fire’”: Disaster relief and the origins of the American welfare state. Northwestern University Law Review, 967. Lerner, K. (1991). Government negligence liability exposure in disaster management. Urban Lawyer, 333. Maiello, M. (2003, May). Aftershock. Forbes Magazine. Matthew, D. B. (2006). Disastrous disasters: Restoring civil rights protections for victims of the state in natural disasters. Journal of Health and Biomedical Law, 213. Nonprofit Risk Management Center, (2001–updated 2006). State liability laws for charitable organizations and volunteers. Available at http://nonprofitrisk.org/store/state-liability.shtml. Nowadzky, R. A. (1995). Lawyering your municipality through a natural disaster or emergency. Urban Lawyer, 9. Pasachoff, E. (2014). Agency enforcement of spending clause statutes: A defense of the funding cut-off. Yale Law Journal, 248. Relyea, H. C. (updated 2006). National emergency powers. Congressional Research Service (98-505 GOV). Rossi, J. (2006). State executive lawmaking in crisis. Duke Law Journal, 237. Rothstein, M. A. et al. (2003). Quarantine and isolation: lessons learned from SARS: A report to the Centers for Disease Control and Prevention. Rothstein, M. A., & Talbott, M. K. (2007). Job security and income replacement for individuals in quarantine: The need for legislation. Journal of Health Care Law and Policy, 239. Sar, D. W. (1995-1996). Helping hands: Aid for natural disaster homeless vs. aid for “ordinary homeless,” Stanford Law and Policy Review, 129. Salzberg, K. (2006). The dog that didn’t bark: Assessing damages for valid regulatory takings. Natural Resources Journal, 131. Schuck, P., & Park, J. (2000). The discretionary function exception in the Second Circuit. Quinnipiac Law Review, 55. Segal, M., & Hearne, S. A. (2005). Protecting corporate America from bioterrorism and epidemics after the sunset of the terrorism risk insurance act. Biosecurity and Bioterrorism, 148. Swanson, H. D. (2000). The delicate art of practicing municipal law under conditions of hell and high water. North Dakota Law Review, 487. Tandy, E. C. (1923). Local quarantine and inoculation for smallpox in the American colonies. American Journal of Public Health, 203. Townsend, F. F. (2006, February). The federal response to Hurricane Katrina: Lessons learned. Available at http://georgewbush-whitehouse.archives.gov/reports/katrina-lessons-learned/. U.S. Centers for Disease Control, Interstate quarantine, 42 Code of Federal Regulations Part 70. U.S. Centers for Disease Control, Foreign quarantine, 42 Code of Federal Regulations Part 71. U.S. Centers for Disease Control. (2014). Guidelines for evaluation of US patients suspected of having Ebola virus disease. U.S. Department of Health and Human Services, (2005, November 30). Control of Communicable Diseases: Proposed rule. In Federal Register, 70, 71871 ff. U.S. Department of Health and Human Services. Pandemic Influenza Plan. Available at http://www.hhs.gov/ pandemicflu/plan/. U.S. Department of Homeland Security, National Response Framework. Available at http://www.fema.gov/ emergency/nrf/. Villa, C. J. (2013). Law and lawyers in the Incident Command System, 36. Seattle University Law Review, 1855.

400 References

Weibgen, A. A. (2015). The right to be rescued: Disability justice in an age of disaster. Yale Law Journal, 2406. Weida, J. C. (2004). A republic of emergencies: Martial law in American jurisprudence, 36. Connecticut Law Review, 1397. Welsh, M. (2008). An overview of the development of U.S. Congressional Committees. Available at http://www. llsdc.org/assets/sourcebook/cong-cmte-overview.pdf. Whisner, M. (2012). Fifty more constitutions. Law Library Journal, 331. The White House. (2003, February 28). Homeland Security Presidential Directive (HSPD) 5. Available at http:// www.dhs.gov/xabout/laws/gc_1214592333605.shtm. Williams, V. J. (2007). Fluconomics: Preserving our hospital infrastructure during and after a pandemic. Yale Journal of Health Policy, Law & Ethics, 99.

Index Note: Page numbers followed by “f,” “t,” and “b” refer to figures, tables, and boxes, respectively. A Active endangerment, 336–337 Adams v. Quincy, 67 Administrative agencies, 85, 88 Administrative enforcement, 170–171 Administrative law, 88 Administrative Procedures Act (APA), 85–86, 89, 90b–91b, 92–96 during Airbags, 94–95 during Carter Administration, 93 during Ford Administration, 93 during Johnson Administration, 92 during Nixon Administration, 92–93 during Reagan Administration, 93–94 rule making, 91f seatbelts, 95–96 Administrative regulations, 294 Administrative searches, 295–297, 297b AEP. See Airport Emergency Plan (AEP) Agencies, coordination of, 89 Air National Guard, 78 Airport Emergency Plan (AEP), 133 Allbaugh, Joe M., 121–122 American Federation of Teachers v. Kanawha County Board of Education, 297 American Media, Inc. (AMI), 246–249, 277–278 American Red Cross, 177–181, 275 Americans with Disabilities Act, 165, 169–170, 285 AMI. See American Media, Inc. (AMI) Anchor federal law claim, 62 Anthrax cutaneous, 249f, 278–281 inhalation, 277–281, 283f, 336–337 pulmonary, 246–249

Anthrax Attacks (2001), 246–250, 249f postal workers and, 276–283 Anthrax letters, public health response to, 246–249 Anti-discrimination rule in Stafford Act, 219b APA. See Administrative Procedures Act (APA) Apportionment, 40 Appropriation process, 52 Arbitrary and capricious standard, 93–94 Army Corps of Engineers, 131 Army National Guard, 78 Arras, John, 260 Arrest, 292 Article II of Constitution, 19b constitutional standard for Article II powers, 20–25 Aslakson v. United States, 334b–336b ASOs. See Aviation security officers (ASOs) AUMF. See Authorization for Use of Military Force (AUMF) Authorization bills, 49 Authorization for Use of Military Force (AUMF), 34–36 Aviation security officers (ASOs), 133 B Batlan, Felice, 229 BCID. See Brooklyn Center for Independence of the Disabled (BCID) BCID v. Bloomberg, 316b–319b Benefits decisions, challenging, 214 Berkovitz case, 338–341 Berkovitz v. United States, 338b–340b Bernal v. Fainter, 156b–158b Bill of Rights, 5–6

401

402 Index

Bioterrorism, 292 definitions of, 246 events involving, 247t–248t pathogens used in, 246b Birth control case, 148–149 Bissonette v. Haig, 75b Bomb explosion, 321, 328 Boos v. Barry, 144b–146b Boumediene v. Bush, 35 Bowsher v. Synar, 6b–9b Briscoe v. Potter, 278b–283b Brooklyn Center for Independence of the Disabled (BCID), 316 Brooklyn Center for Independence of the Disabled v. Michael Bloomberg, 181b–188b Budget bills, 51–52, 52b Budgetary process, 46 Bush, George, 26–29, 34, 36–37, 79–80, 121–122, 197–198 C Cabinet Departments, 85 California Emergency Services Act, 109–111 California-Nevada Methodist Homes, Inc. v. FEMA, 200b–201b Calling Forth Act, 71 Camara v. San Francisco, 293 Campbell v. Clinton, 31b–33b Camping, 142 Cancer, 321 CARE. See Check And Report Ebola (CARE) Case law, 57, 66 Catastrophic events, 195 Catastrophic incident, 131 CCNV. See Community for creative non-violence (CCNV) CDBG. See Community Development Block Grant (CDBG) CDC. See Centers for Disease Control and Prevention (CDC) Centers for Disease Control and Prevention (CDC), 232, 246, 266b, 278–281 changing recommendations, 268–269 “Do Not Board” list system, 243 guide to rationing vaccines during pandemic, 262t

interstate and international regulations, 236–238 regulations for entering the United States, 242–243 regulations for travelers, 236 regulations for traveling between states, 238–242 Check And Report Ebola (CARE), 268 Checks and balances system, 5, 16 Chicago police department, 133 Chisholm v. Georgia, 332 City Department of Design and Construction (DDC), 122–123 City of Chicago v. Federal Emergency Management Agency, 205b–207b City of Houston, Tex. v. Dept’t of Housing and Urban Development, 99b–101b City Office of Emergency Management (OEM), 122–123 City’s Department on Disability (DOD), 177b–181b Civil Defense Act, 112–114, 309–310 Civil Rights Act, 165–167, 169–170 Civil war, 40, 63–64, 81, 147, 300 Civilian rule, 75 Clark v. Community for Creative Non-Violence, 142b–143b Coast Guard Group Boston, 310–314 Commandeer property, 115 Committees of jurisdiction, 46–49 Communicable diseases, 234, 235b–236b, 236 Communities Actively Living Independent and Free (CALIF) v. City of Los Angeles, 177b–181b Community caretaking, 293–295 emergency exceptions, 295 function, 293 function end and evidence collection begin, 294b furniture store fire, 294b–295b Community Development Block Grant (CDBG), 99–101 Community for creative non-violence (CCNV), 142 Compelling state interest, 141, 147 Comprehensive response plan, 125–130 “Conference report”, 50 Congress, 86

Index 403

Congressional power, 39. See also Presidential power Article I, 40b budget bills, 51–52, 52b congress in emergencies, 40–44 France, 44–45 legislative and budgetary process, 46 nonbudget bills, 46–51, 47f under spending clause and federal grants to states, 52–54 structure of, 39–40 “supermajoritarian escalator” for United States, 45–46 Constitution, 3, 71, 165 Constitution and individual rights, 139 Clark v. Community for Creative Non-Violence, 142b–143b comparing standards, 150 discrimination against non-citizens, 154–158 equal protection of law, 150–152 equal protection tests, 152–154 freedom of expression, 140–147 negative liberty, 139–140 procedural due process, 159–162 substantive due process, 140–147 writ of habeas corpus, 163 Constitutional democracy, 5 Constitutional law, 139 Constitutional rights, 140 Constitutional structure of government, 3–6 federalism, 9 Federalist Papers, 5b federal–state conflict, 11–14 judicial review, 14–17 separation of powers, 6 structure and subsidiarity, 4f World of state constitutions, 10–11 Contemporary mass quarantine, 261–262 Contemporary threats. See Public Health Law II Continuance of isolation or quarantine, 255b “Continuing Resolution”, 52 CRCL. See Office of Civil Rights and Civil Liberties (CRCL) Criminal laws, 78–79, 147 Criminal misconduct, 354–355

Customer Company v. City of Sacramento, 299 Cutaneous anthrax, 249f, 278–281 D Dalehite v. United States, 338–339 Davidson v. Commonwealth, 301 DBCS. See Delivery Bar Code Sorter (DBCS) DBS. See Division of Biological Standards (DBS) DDC. See City Department of Design and Construction (DDC) Declaration process, 196–198 Delegation of legislative power, 108 Delivery Bar Code Sorter (DBCS), 278–281 Democracy, 5 Demoralization costs, 305–306 Department of Agriculture, 213 Department of Education (DOE), 181b–188b Department of Environmental Quality (DEQ), 308 Department of Health, Education, and Welfare (HEW), 171–173 Department of Homeland Security (DHS), 86, 98t, 125–130, 165, 193–194 administrative enforcement by, 170–171 OIG, 205–207 U Organizational Chart (2015), 87f Department of Housing and Urban Development (HUD), 99–101 Department of Labor (DOL), 98–99 DEQ. See Department of Environmental Quality (DEQ) Des Moines declares emergency, mayor of, 304b Detention, 292 DHS. See Department of Homeland Security (DHS) Direct Federal Assistance, 199 Dirty bomb explodes in Washington, DC Goiânia, Brazil incident, 322b–323b movie version, 328 RDB, 321–323 scenario unfolds, 323–328, 324f, 328f Dirty War, 328 Disaster, 106 emergency and, 195–196 management at airports, 132–133 recovery, 97 Disaster Act, 121–122

404 Index

Disaster Control Act, 104b–108b Disaster Relief Act (DRA), 193 Disaster Relief and Emergency Assistance Act, 193 Disaster-Related Unemployment Insurance, 213 Discretionary function, 214, 219, 344–347 exception, 310–314, 337–338 Discrimination on disability, 177–188 on national origin and language, 171–175 against non-citizens, 154–158 Disparate impact, 167–168 Disparate treatment, 167 Disperse, proclamation to, 80 Dispute resolution, 57 Diversity of Citizenship, 60 Division of Biological Standards (DBS), 338–340 DOD. See City’s Department on Disability (DOD) DOE. See Department of Education (DOE) DOL. See Department of Labor (DOL) Domestic diseases, regulations for, 236 Domestic incident management, 125–126 Donna Prince L. v. Waters, 135b “Do Not Board” list system, 243 DRA. See Disaster Relief Act (DRA) Due process clause, 139, 147, 154–156, 218 Duncan v. Kahanamoku, 81 Duplication of benefits, 205–207 Duplicative benefits, ban on, 202 Duty of care, 333–334 E Ebola, 264–265 in United States, 266–267 Ebola Virus Disease (EVD), 264–265 evaluation of US patients suspecting of, 266b Economic dimensions of emergencies, 273–274 EHPA. See Emergency Health Powers Act (EHPA) Eleventh Amendment, 332 EMAC. See Emergency Management Assistance Compact (EMAC) Emergencies, 19, 21b, 78, 194, 211, 305–306 congress in, 40–44 comparative emergency law, 44b France, 44–45 NEA, 41b–42b, 42b

declaration process, 197, 301 exceptions, 293, 295 governor power in, 104–112 mobilization for health practitioners, 358–359 powers of government during, 252–256 presidential power in, 19–20 rooms, 274–275 under Stafford Act, 195–196 state government vs. local government in, 112–115 Emergency Health Powers Act (EHPA), 251 Emergency Health Powers Laws, 246 Emergency Management Assistance Compact (EMAC), 115, 359 Emergency Medical Technician (EMT), 357–358 Emergency Medical Treatment and Active Labor Act (EMTALA), 274 Emergency Plan (EP), 134 Emergency Support Functions (ESFs), 124, 131 Emergency System for Advance Registration of Volunteer Health Professionals (ESARVHP), 359 Emerging infectious disease, 256–257 Eminent domain, police power v., 299–300 Employees government responsibility beyond regular, 352–354 government responsibility for acts of, 351–352 Employment at will doctrine, 286 EMT. See Emergency Medical Technician (EMT) EMTALA. See Emergency Medical Treatment and Active Labor Act (EMTALA) Enumerated powers, 16 Environmental Protection Agency (EPA), 196, 321–322, 327 EP. See Emergency Plan (EP) EPA. See Environmental Protection Agency (EPA) Equal Protection Clause, 150, 153–154 violation of, 154–156, 230 Equal Protection of law, 150–152 Equal protection tests, 152–154 ESAR-VHP. See Emergency System for Advance Registration of Volunteer Health Professionals (ESAR-VHP) ESFs. See Emergency Support Functions (ESFs)

Index 405

Evacuation, 307 BCID v. Bloomberg, 316b–319b duty as well as discretion, 316 judgment calls, 310–314 law and policy issues, 320 legal authority, 307 “mandatory” myth, 315–316 Miller v. Campbell County, Wyoming, 308b–310b police power, 310 statutory authority of state officials, 314–315 Thames Shipyard and Repair Co. v. United States, 310b–314b EVD. See Ebola Virus Disease (EVD) “Exclusionary rule”, 292 Executive Branch, 85 coordination of agencies, 89 Executive orders, 36–37 12866, 89 13166, 174 13295, 235b–236b 13658, 36 20003, 235b–236b Executive power, 19–20, 365 F FAM. See Foreign Affairs Manual (FAM) Family Medical Leave Act (FMLA), 285 FBI. See Federal Bureau of Investigation (FBI) Feared pathogens, 246b, 247t Federal agencies, 124 Administrative Procedure Act, 90b–91b APA, 92–96 Cabinet Departments, 85 City of Houston, Tex. v. Dept’t of Housing and Urban Development, 99b–101b City of Newark, N. J. v. U.S. Dep’t of Labor, 98b–99b coordination of agencies, 89 DHS, 86, 98t Executive Branch, 85 grant administration and review, 96–101 intergovernmental grantmaking, 97t Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Insur. Co., 92b–96b

powers of, 88 process of rule-making, 89–91 U.S. Department of Homeland Security Organizational Chart 2015, 87f Federal Bureau of Investigation (FBI), 278–281 Federal courts, 57–60, 58f, 59f Federal deemer law, 352 Federal emergency, 325 law, 39 Federal Emergency Management Agency (FEMA), 48, 121–122, 193, 197–199, 203–204, 208–210 Federal Emergency Management Authority. See Federal Emergency Management Agency (FEMA) Federal financial assistance, 168 Federal funding, 53, 171–175 Federal Government, 352 Party, 60 quarantine to, 232b Federal grant recipients, 167 Federal Labor-Management Relations Act (LMRA), 276 Federal law, 11, 41, 62, 65, 269, 274 deemer provisions in, 352 Federal power, 43, 225 Federal Public Health approaches, 230–232 Federal Public Health Law, 233–235 Federal Question, 60 Federal Register, 89–91, 90b Federal Response Plan (FRP), 124 Federal Tort Claims Act (FTCA), 331, 333 Federal Volunteer Protection Act, 354–356 Federalism, 3–4, 9, 269 Tenth Amendment for, 9 Federalism complications. See Public Health Law I Federalist Paper No.81, 331–332 Federalized volunteers, 352 Federal–state conflict, 11–14 FEMA. See Federal Emergency Management Agency (FEMA) Fifth Amendment, 291, 291b enforced, 292b and takings clause, 298–299 Fire Management Assistance, 202 First Amendment, 140–141

406 Index

First Post 9/11 EID, 257–258 Florida Department of Agriculture v. Haire, 297 FMLA. See Family Medical Leave Act (FMLA) Foreign Affairs Manual (FAM), 26–29 Fourteenth Amendment, 10, 368–369 procedural due process in, 159–162 substantive due process in, 147–149 Fourth Amendment, 291–292, 291b community caretaking, 293–295 Franco-Italian Packing Company v. United States, 300 Frazer v. Chicago, 300 Freedom of expression, 140–147 Freeman v. United States, 343b Frields v. St. Joseph’s Hospital and Medical Center, 357b–358b FRP. See Federal Response Plan (FRP) FTCA. See Federal Tort Claims Act (FTCA) Fugitive Slave Law, 72 Fundamental rights, 149, 154 G General duty clause, 276 Giuliani, Rudolph W., 121–122 GOHSEP. See Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) Goiânia, Brazil incident, 322b–323b Good Samaritan law, 358 Government action, 36, 140, 151 immunity, 332–333 powers during emergency, 252–256 Government liability Aslakson v. United States, 334b–336b Berkovitz case, 338–341 discretionary function exception, 337–338 Hurricane Katrina and liability for personal harm, 341–344, 342f for property damage, 344–349 intentional torts and active endangerment, 336–337 negligence, 333–334 statutory waivers of, 332–333

Government responsibility for acts of employees, 351–352 beyond regular employees, extension of, 352–354 Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP), 208–210 Gramm-Rudman-Hollings Act, 6b–9b Grant administration and review, 96–101 Greenberger, Michael, 130 Greene v. Edwards, 159b–160b Gross negligence, 351–352 H Habeas corpus, 35 writ of, 163 Hamdi v. Rumsfeld, 34 Harlow v. Fitzgerald, 341 Harper’s Weekly magazine, 229 Hazard Mitigation Assistance (HMA), 202 Health care professionals, 358–359 Health emergencies anthrax attacks, 276–283 Briscoe v. Potter, 278b–283b economic dimensions of emergencies, 273–274 emergency rooms in emergency, 274–275 income replacement, 286 job protection, 284–286 Miami Area Local, American Postal Workers Union v. U.S. Postal Service, 277b–278b postal workers, 276–283 SARS in Toronto, 274b workplace safety, 276 workplaces and mass quarantine, 283–284 Health practitioners liability issues for, 356–358 licensure and emergency mobilization for, 358–359 HEO. See Homebound Evacuation Operation (HEO) HEW. See Department of Health, Education, and Welfare (HEW) HHS. See U.S. Department of Health and Human Services (HHS) HMA. See Hazard Mitigation Assistance (HMA) Hodge, James, 250

Index 407

Homebound Evacuation Operation (HEO), 316–319 Homeland Security Act, 73, 125–126 Homeland Security Presidential Directives (HSPD), 36–37, 125b–127b Homeland Security’s Committee problem, 48b House v. Los Angeles County Flood Control District, 299–300 Household Assistance program, 211–213 Housing assistance, 211–212 Housing Authority of City of Carrollton v. Ayers, 334 Housing benefits, eligibility for, 212 Housing-related assistance, forms of, 213 HSPD. See Homeland Security Presidential Directives (HSPD) HUD. See Department of Housing and Urban Development (HUD) Hurricanes Katrina, 79–80, 130–131, 166, 193–194, 207–210, 214–218 for personal harm, 341–344, 342f for property damage, 344–349 I IAEA. See International Atomic Energy Agency (IAEA) ICS. See Incident Command System (ICS) IEEPA. See International Emergency Economic Powers Act (IEEPA) Immunity defense, 332–333 Immunity from tort liability, 110–111 Implied powers, 20 In re Antoinette R., 160b–162b In re Katrina Canal Breaches Litigation, 344b–348b In the Matter of City of Kenner, 208b–210b Incident command post, 122–123 Incident Command System (ICS), 128, 128f, 131 developing comprehensive response plan, 125–130 Donna Prince L. v. Waters, 135b emergency at airport, 132–134 form of law, 134–136 on ground, 131–132 incident commanders, 134f NRF, 130–131

NRP, 130b September 11 response, 121–125 Income replacement, 286 Incubation period, 265 Indemnification, 352 Individual Assistance program, 211–213 Individual rights, 139 administrative enforcement by DHS, 170–171 Americans with Disabilities Act, 169–170 constitution, 165 disaster survivors, 166 discrimination on disability, 177–188 on national origin and language, 171–175 LEP, 175–177 Rehabilitation Act, 169–170 Title VI, 166–169 Infectious diseases, emerging, 256–257 Inhalation anthrax, 277–281, 283f, 336–337 Inherent authority, 73 Inherent powers, 22–25, 73–74 Injunction, 277–278, 332 Insurrection Act, 79–81, 80b aid to state governments, 80 interference with State and Federal law, 80 militia and armed forces to enforce Federal authority, 80 proclamation to disperse, 80 Intentional torts, 336–337 Intergovernmental grantmaking, 97t International Atomic Energy Agency (IAEA), 322 International Emergency Economic Powers Act (IEEPA), 43 International Labour Organization, 286 Interrogation, 292 Intersystem dynamics, 64–65 Iowa’s state code, 304 Isolation, 237, 253b. See also Quarantine center, 301 continuance of, 255b New Jersey EHPA for, 253b–256b J Jackson, Justice, 25b Jackson v. Pierce, 68

408 Index

Jacobson revisited, 298 Jacobson v. Commonwealth of Massachusetts, 224b–227b Jew Ho v. Williamson, 151b, 230 JFK Airport, 133 Job protection, 284–286 Job Training Partnership Act (JTPA), 98–99 Johnson, Alan B., 308b–310b Joint Stafford Act benefit programs, 213–214 JTPA. See Job Training Partnership Act (JTPA) Judgment calls, 310–314 Judicial review, 3–4, 14–17 Judiciary Act (1789), 58, 72 Judiciary system, 57 Article III, 60b case law, precedent, and stare decisis, 66 Federal courts, 57–60, 58f, 59f hypothetical case, 67–69 intersystem dynamics, 64–65 State courts, 60–64, 61f, 62f Jurisdiction, 46–47 Just compensation, 291 K Kansas v. United States, 197b–198b L LAFD. See Los Angeles Fire Department (LAFD) Lake Pontchartrain and Vicinity Hurricane Protection Plan (LPV), 344–347 Language access, 174b LAPD. See Los Angeles Police Department (LAPD) Lau v. Nichols, 171b–173b Law and ethics, 327b Law and policy issues, 320 Law enforcement function, 293 Law of search and seizure administrative searches, 295–297 community caretaking, 293–295 eminent domain v. police power, 299–300 Fifth Amendment and takings clause, 298–299 Fourth Amendment, 291–292 mayor of Des Moines declares emergency, 304b Michigan v. Tyler, 296b nursing home, 301b

public health and takings, 300–302 quarantine, 291 reasonable searches, 292–293 smallpox hospital, 300b special needs, 297–298 takings, emergencies, and public policy, 305–306 takings and emergencies, 302–305 LAWA. See Los Angeles World Airports (LAWA) Lazaretto quarantine station, Philadelphia, 228b Legislation, terminology of, 51b Legislative power, delegation of, 108 Legislative process, 46 LEP. See Limited English proficient (LEP) Liability issues Federal Volunteer Protection Act, 354–356 Frields v. St. Joseph’s Hospital and Medical Center, 357b–358b government responsibility beyond regular employees, 352–354 government responsibility for acts of employees, 351–352 for health practitioners, 356–358 liability issues for health practitioners, 356–358 licensure and emergency mobilization for health practitioners, 358–359 Momans v. St. John’s Northwestern Military Academy, 354b–355b State Volunteer Protection Laws, 356 VPA, 355b Liberty, 140–147 Licensure mobilization for health practitioners, 358–359 Limited English proficient (LEP), 174–177 LMRA. See Federal Labor-Management Relations Act (LMRA) Local governments, 103–104, 103b–104b delegation of legislative power, 108 in emergency, 112–115 Maryland, 116–118 Schwarzenegger case, 111 separation of powers in emergency, 104–112 state-to-state assistance agreements, 115–116 Los Angeles Fire Department (LAFD), 177b–181b Los Angeles Police Department (LAPD), 177b–181b Los Angeles World Airports (LAWA), 134

Index 409

LPV. See Lake Pontchartrain and Vicinity Hurricane Protection Plan (LPV) M Madison v. Monroe, 67–68 Major disaster, 194, 211 Mandatory evacuation, 310–314 “Mandatory” myth, 315–316 Marbury v. Madison, 16 Marine Hospital Service (MHS), 231 “Markup”, 49 Martial law, 81–82 example of proclamation of, 72f Maryland, 116–118 Maryland Emergency Management Act (MEMA), 116–118 chain of command, 117f organizational chart, 118f Maryland Joint Operations Center (MJOC), 118 Maryland statute, 353 Mass destruction, weapons of, 78–79 Mass quarantine, 283–284 Mathews v. Diaz, 154b–156b Mayor of Des Moines declares emergency, 304b Mayor’s Office for People with Disabilities (MOPD), 181b–188b Mayor’s Office of Employment Training (MOET), 98–99 McWaters, 219 McWaters v. FEMA I, 214b–218b McWaters v. FEMA II, 218b Medicaid, 274 Medicare, 154–156, 274 Medications, rationing, 260–261 MEMA. See Maryland Emergency Management Act (MEMA) MHS. See Marine Hospital Service (MHS) Miami Area Local, American Postal Workers Union v. U.S. Postal Service, 277b–278b Michigan v. Tyler, 296b MICU. See Mobile Intensive Care Unit (MICU) Military commissions, 34 Military Commissions Act, 35 Military force deployment, 29–34 War Powers Act, 29–30, 30b

Military troops history, 71–74, 72f Insurrection Act, 79–81, 80b martial law, 81–82 PCA, 74 weapons of mass destruction, 78–79 Militia, 71–73 Militia Act (1903), 78 Miller v. Campbell County, Wyoming, 308b–310b Mississippi River Gulf Outlet (MRGO), 344–347 Missouri Plan, 63b–64b MJOC. See Maryland Joint Operations Center (MJOC) Mobile Intensive Care Unit (MICU), 357–358 Model State Emergency Health Powers Act (MSEHPA), 246, 250 Modified Standard 208 regulation, 93 MOET. See Mayor’s Office of Employment Training (MOET) Momans v. St. John’s Northwestern Military Academy, 354b–355b MOPD. See Mayor’s Office for People with Disabilities (MOPD) Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Insur. Co., 92b–96b Motor Vehicle Safety Act, 92–96 MRGO. See Mississippi River Gulf Outlet (MRGO) MSEHPA. See Model State Emergency Health Powers Act (MSEHPA) Municipal authority, statutory grant of, 114–115 N National Board of Health (NBH), 231 National Disaster Medical System (NDMS), 359 National Electric Safety Code (NESC), 334–336 National Emergencies Act (NEA), 39, 41–42, 41b– 42b, 42b, 81 National Gallery of Art, 323 National Guard, 71, 74, 78, 116, 214–218 Air National Guard, 78 Army National Guard, 78 National Highway Traffic Safety Administration (NHTSA), 92 National Incident Management System (NIMS), 126, 128b–129b, 131–132

410 Index

National Institutes of Health (NIH), 338–340 National Interagency Incident Management System–Incident Command System (NIIMS–ICS), 135 National Response Framework (NRF), 130–133 National Response Plan (NRP), 126–127, 127b, 130b, 343–344 National Tax-Limitation Committee v. Schwarzenegger, The, 109–111 National Traffic and Motor Vehicle Safety Act (1966), 92–96 Natural catastrophe, 194 NBH. See National Board of Health (NBH) NDMS. See National Disaster Medical System (NDMS) NEA. See National Emergencies Act (NEA) Negative liberty, 139–140 Negligence law, 333–334 NESC. See National Electric Safety Code (NESC) New Jersey EHPA, 251 for isolation and quarantine, 253b–256b New Jersey law, 252 New Jersey state law, 284–285 New Jersey Superior Court, Appellate Division (1997), 357b–358b New Jersey v. T.L.O., 297 New York v. United States, 12b–14b NHTSA. See National Highway Traffic Safety Administration (NHTSA) NIH. See National Institutes of Health (NIH) NIIMS–ICS. See National Interagency Incident Management System–Incident Command System (NIIMS–ICS) NIMS. See National Incident Management System (NIMS) Non-citizens, discrimination against, 154–158 Non-Stafford Act benefit programs, 213–214 Nonbudget bills, 46–51, 47f congressional record, 50f Notice of Proposed Rulemaking (NPRM), 89–90 Notice-and-comment rule-making process, 91 NPRM. See Notice of Proposed Rulemaking (NPRM) NRF. See National Response Framework (NRF) NRP. See National Response Plan (NRP)

O Occupational Safety and Health Act (OSHA), 123, 276 Occupational Safety and Health Administration. See Occupational Safety and Health Act (OSHA) Odello Brothers v. County of Monterey, 300 OEM. See City Office of Emergency Management (OEM)Office Emergency Management (OEM) Office Emergency Management (OEM), 181b–188b Office of Civil Rights and Civil Liberties (CRCL), 170–171 Office of Information and Regulatory Affairs (OIRA), 89 Office of Inspector General (OIG), 98–99, 202–207 Office of Management and Budget (OMB), 7, 51, 89 OIG. See Office of Inspector General (OIG) OIRA. See Office of Information and Regulatory Affairs (OIRA) Oklahoma City v. Vetter, 300 OMB. See Office of Management and Budget (OMB) OSHA. See Occupational Safety and Health Act (OSHA) P Pandemic influenza CDC, 260–261 HHS Pandemic Influenza Plan, 262 PAPD. See Police department of Port Authority (PAPD) Passenger safety devices, 92–96 airbags, 92–96 ignition interlock option, 92–93 seatbelts, 92–96 Passive occupant restraint systems, 92 Pathogens resistant, 257 used in bioterrorist attack, 246b PATRIOT Act, 44 PCA. See Posse Comitatus Act (PCA) People v. Clements, 294b People v. Molnar, 294b Personal protective equipment (PPE), 266

Index 411

PHS. See Public Health Service (PHS) PKEMRA. See Public Health Security and Bioterrorism Preparedness and Response Act (PKEMRA) “Plain view”, 297 “Pocket veto”, 50–51 Police department of Port Authority (PAPD), 133 Police powers, 225, 228, 307, 309–310 eminent domain v., 299–300 Policy considerations, 334–336 Political branches of government, 154–156 Political subdivision of state, 104b–108b Posse Comitatus Act (PCA), 72, 73b, 74 Bissonette v. Haig, 75b Postal window clerks, face masks for, 277–278 Postal workers, 276–283 Powers, emergency of governor, 104–112 of legislature, 104–108 Powers of president, 19–20 PPE. See Personal protective equipment (PPE) Pre-sentence report (PSR), 203–204 Precedent, 66 Presidential directives, 36–37 Presidential power, 19–20. See also Congressional power AUMF, 35–36 constitutional standard for Article II powers, 20–25 in emergency, 19 executive orders and presidential directives, 36–37 foreign relations, 26–29 military force deployment, 29–34 presidential power after September 11 attack, 34–35 Private sector, public health emergencies impact on, 273–274 Probable cause, 292 Procedural due process, 159–162 Proclamation of emergencies, 41b–42b, 42b, 43, 43f Program access requirements, 165 Prophylaxis, 246–249 Prosecution, 202–207 PSR. See Pre-sentence report (PSR)

Public assistance, 199–202 Public health emergencies, 233–235, 250–252, 302–304 emergency law, 223, 245, 273 investigations, 296 issues re-entered public debate, 245 and takings, 300–302 threats, 245 Public Health Law I Code of Federal Regulations, Title 42, Part 70 Federal Public Health approaches, 230–232 Federal Public Health Law, 233–235 Jacobson v. Commonwealth of Massachusetts, 224b–227b Philadelphia’s Lazaretto quarantine station, 228b police power, 228 public health emergency, 235 Public Health Service Act, 233b–235b quarantine, 223b quarantine to federal government, 232b regulations interstate and international, 00013#s9010 for travelers, 00013#s0030 for traveling to the United States, 242–243 revised list of quarantinable communicable diseases, 235b–236b smallpox, 224b State Public Health Law, 223–230 Public Health Law II, 246–250, 249f Anthrax Attacks of (2001) bioterrorism, 246, 247t–248t CDC changing recommendations, 268–269 contemporary mass quarantine, 261–262 difference between isolation and quarantine, 253b Ebola, 264–265 Ebola reaches United States, 266–267 Emergency Health Powers Laws, 246 emerging infectious disease, 256–257 evaluation of US patients suspecting of EVD, 266b federalism, 269 First Post 9/11 EID, 257–258 first responses, 265–266 infected doctor and uninfected nurse, 267–268 phases of pandemic, 252t

412 Index

Public Health Law II (Continued) powers of government during emergency, 252–256 Public Health Emergency, 250–252 rationing medications, 260–261 SARS Outbreak of 2003, 258–259 travel restrictions, 263–264 Public Health Security and Bioterrorism Preparedness and Response Act (PKEMRA), 46 Public Health Service (PHS), 231–232 Public Health Service Act, 233b–235b Public policy, 305–306 Public use, 291 “Pull” system, 128b “Push packs”, 260 Q Quarantinable communicable diseases, revised list of, 235b–236b Quarantine, 223b, 237, 253b, 291. See also Isolation center, 301 continuance of, 255b to federal government, 232b New Jersey EHPA for, 253b–256b powers in time of war, 234 principles of modern, 263f Quasi-coercive methods, 315 R RA. See Rehabilitation Act (RA) Radioactive materials, 321 Radioburnase, 326–327 Radiological dispersion bombs (RDB), 321–323 “Ranking member”, 49 Rational basis standard, 150 Rational basis test, 152 RDB. See Radiological dispersion bombs (RDB) Re-emerging diseases, 256–257 Real takings, 299 Reasoning by analogy, 66, 68 Recognition, 26b–29b Recoupment, 202–207 Red Cross, 177–181 Regulations, 88

Regulations for traveling between states, 238–242 Regulations for traveling to the United States, 242–243 Regulatory taking, 299 Rehabilitation Act (RA), 165, 167, 169–170 Remedial measures, 106 “Reporting provisions” of Act, 7 “Respondeat superior”, 351b Robert T. Stafford Disaster Relief and Emergency Assistance Act, 193 Robinson plaintiffs, 344–349 Rule-making process, 89–91 S SARS. See Severe acute respiratory syndrome (SARS) SARS-associated coronavirus (SARS-CoV), 257 SBA. See Small Business Administration (SBA) Schwarzenegger case, 109–111 Secretary of Health and Human Services, 352 Secretary of Homeland Security, 125–126 “Section 504”, 169–170 “Seizure” strand, 292 Separation of powers, 3, 6, 6b–9b, 57 in emergency, 104–112 Youngstown case, 25 September 11 attack, presidential power after, 34–35 September 11 response, 121–125. See also World Trade Center Serious health condition, 285 Severe acute respiratory syndrome (SARS), 236, 257–258, 273–274 Outbreak of 2003, 258–259 in Toronto, 274b Sex-based discrimination, 167 Short-Term Lodging Program, 214–218 Similarly situated, 151–152 Small Business Administration (SBA), 198–199, 213 Smallpox, 224b hospital, 300b Smith v. Avino, 307 SMNSs. See Special medical needs shelters (SMNSs) “Snow day”, 262

Index 413

SNS. See Strategic National Stockpile (SNS) Social compact, 10 Social distancing mechanisms, 262 SONS. See Spill of national significance (SONS) South Dakota Department of Health v. Heim, 300 South Dakota v. Dole, 53b–54b Sovereign immunity, 331 Aslakson v. United States, 334b–336b Berkovitz case, 338–341 discretionary function exception, 337–338 Hurricane Katrina and liability for personal harm, 341–344, 342f for property damage, 344–349 intentional torts and active endangerment, 336–337 negligence, 333–334 statutory waivers of, 332–333 Sovereignty, 331–332 Special medical needs shelters (SMNSs), 181b–188b Special needs exception, 297–298 Spending clause, congressional power under, 52–54 Spill of national significance (SONS), 195 Stafford Act, 193, 211, 337, 352 assistance for individuals, 211 anti-discrimination rule in Stafford Act, 219b challenging benefits decisions, 214 forms of housing-related assistance, 213 Individual Assistance programs, 211 joint or non-Stafford Act benefit programs, 213–214 McWaters, 219 McWaters v. FEMA I, 214b–218b McWaters v. FEMA II, 218b Stafford Act programs, 212–213 assistance to communities, 193, 198–199 appeals, 207–210 ban on duplicative benefits, 202 California-Nevada Methodist Homes, Inc. v. FEMA, 200b–201b catastrophic events, 195 City of Chicago v. Federal Emergency Management Agency, 205b–207b declaration process, 196–198

Direct Federal Assistance, 199 “disaster” or “emergency” under Stafford Act, 195–196 DRA, 193 Fire Management Assistance, 202 forms of assistance, 194 HMA, 202 Kansas v. United States, 197b–198b prosecution and recoupment, 202–207 Public Assistance, 199–202 In the Matter of City of Kenner, 208b–210b United States v. Roy Hebron, 203b–204b Stare decisis, 66 State action, 53–54 State and Federal Constitutions, 310 State courts, 60–64, 61f, 62f judicial selection, 63b–64b State endangerment theory, 282 State governments, 103–104, 103b–104b, 352 delegation of legislative power, 108 in emergency, 112–115 Maryland, 116–118 Schwarzenegger case, 111 separation of powers in emergency, 104–112 state-to-state assistance agreements, 115–116 State interest compelling, 141, 144, 147, 150 legitimate, 150, 153–154 State of Missouri v. Pruneau, 112–114 State officials, statutory authority of, 314–315 State Public Health Emergency Claim Reimbursement Board, 304–305 State Public Health Law, 223–230 State Volunteer Protection Laws, 356 State-to-state assistance agreements, 115–116 Statutory authority of state officials, 314–315 “Statutory law”, 57 Statutory response, takings and emergencies, 302–305 Statutory waivers of sovereign immunity, 332–333 Strategic National Stockpile (SNS), 260 Strict scrutiny, 152–153, 156–158 “Subject matter jurisdiction”, 59–60 Substantive due process, 140–147 “Supermajoritarian escalator”, 45–46

414 Index

Supremacy Clause, 11, 64–65, 332 Supreme Court, powers of, 6b–9b Surgeon General, 234–235 T Takings, 305–306 for police power, 299 public health and, 300–302 Takings clause, 291, 299 Fifth Amendment and, 298–299 Tandy, Elizabeth, 223–224 Temporary government employees, 352 Temporary Housing Assistance Payments, 214–218 Tenth Amendment, 368 for federalism, 9 Test case, 177–181 Texas, 314–315 Texas Medical Center (TMC), 197 Thames Shipyard and Repair Co. v. United States, 310b–314b Third Amendment, 44, 367 1375 Ci of cesium-137 chloride (137CsCl), 322 TMC. See Texas Medical Center (TMC) Tort Claims Act, 333 Tort Immunity Act, 352–353 Torts, intentional, 336–337 Travel restrictions, 263–264 Trigger, 39 U UCMJ. See Uniform Code of Military Justice (UCMJ) Unemployment compensation benefits system, 286 “Unified command”, 128b Uniform Code of Military Justice (UCMJ), 34–35 United States Armed Forces, 30 United States Code, Title 42, 233b–235b United States Supreme Court (1905), 224b–227b United States v. Caltex, Inc., 300 United States v. Carroll Towing Co., 334 United States v. Nixon, 16b United States v. Pacific Railroad, 300 United States v. Roy Hebron, 203b–204b

University of Iowa’s Center for Emerging Infectious Diseases, 256–257 U.S. Civilian Board of Contract Appeals (2015), 208b–210b U.S. Constitution amendments, 367–369 Article I, 361–365 Article II, 365–366 Article III, 366–367 U.S. Constitution, 139 U.S. Court of Appeals for Fifth Circuit (2012), 203b–204b U.S. Department of Health and Human Services (HHS), 275 U.S. Department of Homeland Security Organizational Chart, 87f U.S. District Court for District of Columbia (2004), 278b–283b U.S. District Court for District of Kansas (1990), 197b–198b U.S. District Court for Eastern District of Louisiana (2005), 214b–218b U.S. District Court for Eastern District of Louisiana (2006), 218b U.S. District Court for Northern District of California (2001), 200b–201b U.S. District Court for Northern District of Illinois (2000), 354b–355b U.S. District Court for Northern District of Illinois (2013), 205b–207b U.S. District Court for Southern District of Florida (2001), 277b–278b U.S. Firefighter Service (USFS), 67 U.S. legal system, 3 U.S. Marshals Service, 72 US patients suspecting of EVD, evaluation of, 266b USFS. See U.S. Firefighter Service (USFS) Utilitarianism, 260–261 V Vaccination certificate, 230 Volunteer Protection Act (VPA), 354, 355b Volunteer(s), 135, 267, 351–355, 358–359

Index 415

W Waiver laws, 332–333 WAPA. See Western Area Power Administration (WAPA) War Powers Act, 29–30, 30b War Powers Resolution. See War Powers Act Warrant, 44, 292–293, 295 Weapons of mass destruction, 78–79 United States code, title 10 (382), 78b–79b Western Area Power Administration (WAPA), 334–336 WHO. See World Health Organization (WHO) Willful misconduct, 351–352 Wilson v. Layne, 292 Workers compensation law, 351 Workplaces and mass quarantine, 283–284 safety, 276 World Health Organization (WHO), 258, 265 World of state constitutions, 10–11 World Trade Center

activation of federal assistance, 124 asserting control over, 122–123 development of health and safety standards, 123 disaster site litigation, 121b–125b federal agencies, 124 Hellerstein, 121–122 rescue and recovery effort, 124–125 on September 11, 307 Worthingon v. Fauver, 104b–108b Wounded Knee Standoff, 74b Writ of habeas corpus, 35, 163 Writ of mandate or mandamus, 110b Wyoming Disaster and Civil Defense Act, 309–310 Y Yellow fever epidemic, 224, 228, 231 Youngstown Sheet & Tube Co. v. Sawyer, 21b–25b, 25b, 26–29, 26b–29b Z Zivotofsky v. Kerry, 26b–29b, 29b