Declaring an emergency and the authority a declaration unlocks, the duration of a declaration and legislative termination of it, quarantine and isolation orders and the process owed, closure and curfew orders and the challenges brought against them, commandeering property and the compensation owed, price gouging statutes activated by a declaration, emergency rulemaking without the ordinary comment period, and judicial review while the emergency is still running.
A challenge to an operative emergency order begins with an application for interim relief. An order granting, continuing, modifying, refusing or dissolving an injunction is immediately appealable, so a ruling either way can be taken up at once. A party seeking a stay ordinarily moves first in the district court. Governments argue for deference on a thin record; challengers argue that urgency does not lower the standard of justification.
Federal authority to apprehend, examine, quarantine or isolate an individual rests on regulations under the Public Health Service Act and applies to diseases specified by executive order. An order requires a finding that the individual is reasonably believed to be infected with a quarantinable disease in a qualifying stage and is moving or about to move between states, or is a probable source of infection to such persons. Reassessment by a different official follows within seventy-two hours.
The judicial power extends to cases and controversies, so a challenge to an order that no longer operates ordinarily ends. Two exceptions matter here. The first covers disputes capable of repetition yet evading review, which requires that the challenged action be too short in duration to be fully litigated and that there be a reasonable expectation the same party will face it again. The second addresses voluntary cessation by the party whose conduct is challenged.
Emergency closure and curfew orders draw lines between categories of activity, and litigation over them concentrates on those lines. Governments defend the classifications as public health judgments entitled to deference. Challengers argue that where an order burdens an enumerated right, deference does not apply and the government must justify treating comparable activity differently. Courts have split on both the standard and on which activities are comparable.
State emergency management statutes give a governor power to declare by executive order or proclamation on stated findings, and the declaration then activates suspension, commandeering, evacuation and price control provisions elsewhere in the code. At the federal level a governor requests a declaration on a finding that the situation exceeds state and local capability, and the President may also determine that an emergency exists where federal responsibility is primary.
Price gouging statutes are conditional prohibitions that activate on a declared emergency or, in one state, on any abnormal disruption of the market. California caps increases at ten percent above the pre-declaration price, with a defense for costs directly attributable to a supplier or to labor and materials. Florida makes a gross disparity from the average price in the preceding thirty days prima facie evidence of an unconscionable price. New York leaves the question to the court.
State emergency declarations carry statutory expiry dates that differ widely. Michigan sets twenty-eight days and requires a resolution of both houses to extend. Florida sets sixty days renewable by the governor. New York sets six months with additional six-month extensions by further order. The federal framework has no fixed term but terminates a national emergency on its anniversary unless the President publishes a continuation notice within the preceding ninety days.
California authorizes the Governor to commandeer or use any private property deemed necessary during a state of emergency and provides that the state shall pay the reasonable value. Florida permits commandeering subject to compensation under a separate section, which limits payment by reference to volunteering and to a claimant's own legal responsibility. Where no statute pays, the argument is made under the takings clause, and the scope of an emergency exception to it is contested.
State emergency power is general regulatory authority exercised through a declaration. Federal emergency authority is either an assistance framework activated by a governor's request, or a power conditioned on a declaration under the national emergencies framework. Disease control is the clearest overlap, and there the statute preserves state and local measures except where they conflict with an exercise of federal authority. Assistance carries its own cost share and cap.
Three mechanisms are in use. Florida permits the legislature by concurrent resolution to terminate a state of emergency or any specific order under it. Michigan withholds the power to extend beyond twenty-eight days unless both houses approve by resolution. The federal framework requires an enacted joint resolution, which passes through the ordinary legislative process. Each is defended and attacked on separation of powers grounds, and courts have not converged on a single answer.
The federal administrative procedure statute allows an agency to dispense with notice and comment where it finds for good cause that those procedures are impracticable, unnecessary or contrary to the public interest, and requires the finding and a brief statement of reasons to be incorporated in the rule. Florida's analogue permits emergency rules on a finding of immediate danger, caps them at ninety days, and generally forbids renewal unless ordinary rulemaking is under way.
