Declaring an Emergency and What It Unlocks

An emergency declaration is a legal instrument with a narrow job. It does not, by itself, authorize anything. What it does is satisfy a condition attached to a set of powers that the legislature has already granted and left dormant, and it fixes in a public document the findings on which those powers are being exercised. Almost every later dispute about an emergency order returns to what the declaration said and what the statute made available once it was signed.

The declaration as a condition, not a source

The federal framework states the principle plainly. Provisions of law conferring powers and authorities to be exercised during a national emergency are effective and remain in effect only when the President specifically declares a national emergency, and only in accordance with the chapter that governs declarations. The proclamation must immediately be transmitted to Congress and published in the Federal Register. A later statute cannot displace that framework unless it does so in specific terms, referring to the subchapter and declaring that it supersedes it.

State emergency management codes follow the same architecture. The declaration sits at the front of a chapter, and the operative powers, suspension of statutes and regulations, commandeering of property, evacuation, activation of price restrictions, appear in later sections conditioned on a state of emergency being in force. An executive acting without a declaration is acting without any of them.

Who declares, and what the order must recite

State statutes fix both the actor and the trigger. Michigan requires the governor to declare a state of disaster by executive order or proclamation on finding that a disaster has occurred or that the threat of a disaster exists, and to declare a state of emergency on the corresponding finding for an emergency. New York requires the governor, on finding that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, to declare a disaster emergency by executive order. Florida's statute assumes a declaration and prescribes what it must say.

The recital requirements are more than formality. New York provides that the executive order must include a description of the disaster and the affected area. Florida requires every executive order or proclamation to indicate the nature of the emergency, the area or areas threatened, and the conditions which brought the emergency about or which make possible its termination. Michigan requires the order to indicate the nature of the disaster, the areas threatened, the conditions causing it and the conditions permitting termination, and requires prompt dissemination by means calculated to bring the contents to public attention.

Two of those elements do work later. The area recital defines the geographic reach of everything the declaration activates. The termination-conditions recital states, in the executive's own words, what would make the emergency over, and it becomes the natural reference point when the duration is questioned, as discussed in how long a declaration lasts.

Two federal routes, and a cap

Federal emergency assistance ordinarily begins with a state. All requests for a declaration that an emergency exists are made by the governor of the affected state, based on a finding that the situation exceeds the capabilities of the state and affected local governments and that federal assistance is necessary. As a prerequisite, the governor must take appropriate action under state law and direct execution of the state emergency plan, and must furnish information on state and local efforts and define the aid required.

A second route bypasses the request. The President may exercise the emergency assistance authorities where he determines that an emergency exists for which primary responsibility rests with the United States, because it involves a subject area over which the United States exercises exclusive or preeminent responsibility under the Constitution or federal law. The governor is consulted where practicable, and the determination may be made without regard to the request procedure. The overlap this creates with state authority is examined in where federal and state emergency authority meet.

The assistance that follows is bounded. Total assistance for a single emergency may not exceed five million dollars, and that limit may be exceeded only where the President determines that continued assistance is immediately required, that there is a continuing and immediate risk to lives, property, public health or safety, and that necessary assistance will not otherwise be provided on a timely basis. Whenever the limit is exceeded, a report to Congress follows.

The powers on the other side of the switch

What a declaration activates varies by state, but the categories recur. Suspension of statutes and rules whose observance would hinder the emergency response, subject to time limits and standards. Commandeering or use of private property with compensation, which is treated in commandeering property and the compensation owed. Direction and compulsion of evacuation from a threatened area. Restrictions on the price of essential commodities. And the authority for agencies to adopt rules without the ordinary comment period.

Public health declarations sit in a parallel track with their own actor and their own clock. Florida makes the State Health Officer responsible for declaring public health emergencies and for ordering isolation or quarantine, and limits such a declaration to sixty days unless the Governor concurs in a renewal. The substantive powers that follow, and the process owed to a person subject to them, are treated in quarantine and isolation orders and the process owed.