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Abstract: The September 11 terrorist attacks and the anthrax exposures in fall 2001 changed perceptions of emergency risks in the United States, igniting an era of intense preparedness and response undergirded by substantial funding, interjurisdictional efforts, and comprehensive, state-based legal reforms. Over ensuing years, states infused "public health emergency" (PHE) declarations and powers to test, screen, separate, treat, survey, and vaccinate individuals and groups into their laws on the basis, in large part, of the foundational Model State Emergency Health Powers Act (MSEHPA) finalized in December 2001. Initial PHE declarations and limited exercises of these powers among select states emerged in response to infectious disease outbreaks including the H1 N1, Ebola, and Zika viruses.
None of these threats, however, rivals COVID-19. With 630 million reported infections globally and more than a million confirmed US deaths in 2.9 years, the pandemic warranted "all-stops" efforts. Every state declared some type of emergency in the first 10 weeks of the pandemic in early 2020. Widespread implementation of social distancing requirements-isolation, quarantine, closures, travel restrictions, stay-at-home orders-unquestionably saved lives but also carried substantial societal costs.
Public reactions to expansive use of PHE powers were fierce. The pandemic was rapidly politicized. A tsunami of litigation flooded courts nationally. Voters confronted governors and public health officials. Presidential administrations changed mid-pandemic. As the epidemiology of COVID-19 became clearer and safe, efficacious vaccines were developed and distributed, applications of state PHE laws and policies oscillated over multiple waves of infections. Uses of these powers were shaped by "denialist" laws and policies (expressly rejecting known and actual public health risks), federal shifts in responses, and judicial restraints based on misperceptions of individual rights and structural limits underlying governmental responses. We explore these themes here through assessments of core legal foundations for modern state emergency powers, their uses and challenges in response to COVID-19, and postpandemic reform proposals to improve state responses to future emergency threats.
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