Emily Berman’s paper explores the ways in which existing law and policy envision distinct pandemic-response roles for the state and federal governments, and distinct powers to fulfill those roles. 

It examines the United States’ coronavirus response and argues that the federal government failed to bring the full range of its powers to bear—and indeed, that it continues to do so—in ways that have undermined the states’ ability to mount an effective response.  

Can a president abuse emergency powers by not using them? Elizabeth Goitein explains that President Trump has utilized aggressive rhetoric and claimed the powers of the president during an emergency are absolute. Yet he has been restrained to a fault when deploying emergency powers to address the COVID-19 national health crisis. His approach to emergency powers in regards to immigration and domestic quarantines reveals a tug-of-war between the inclination to assert sweeping power and the desire to avoid responsibility for the public health and economic consequences of the pandemic.

At every stage, our national response to COVID-19 has been hampered by a lack of available testing, testing equipment, personal protective equipment, ventilators, and other medical supplies; problems which President Trump could have attacked using legitimate legal authorities. While the use of emergency powers is discretionary by nature, President Trump may have illuminated a new abuse, the politically-motivated failure to deploy emergency powers in a genuine crisis. 

In response to COVID-19, U.S. states and localities are exercising various health actions under their inherent police powers—often facing stiff resistance by the public and the courts.

Edward P. Richards outlines how states and localities enjoyed broad police powers over public health since the colonial period. The Supreme Court limited this authority only in cases of discrimination. Historically, courts deferred to local authorities or legislatures during health emergencies; the general public, in contrast, often demonstrated greater resistance. At times, this resulted in devastating outcomes, such as when public resistance to masks during the 1918-1919 flu pandemic caused a second wave and rise in deaths.

COVID-19, Richards argues, is unprecedented because both the public and, unusually, the courts are resisting local public health orders. Many judges today are substituting their own judgment for that of public officials, raising questions over the future of traditional police powers.