Nan D. Hunter

The Stafford Act

By far, the most important federal law 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 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 go forward. This chapter focuses on the acts definitions, the declaration process, eligibility for various types of assistance, and when the act creates duties on the part of government. These issues are both weighty and frequent; in a typical year, dozens of events give rise to declarations under the Stafford Act.

State Public Health Law

This chapter helps to understand various facts like the origins and development of state and local public health laws, the history of public health abuses of the quarantine power, and how and why a new genre of public health law was created to provide even broader powers to cope with emergency situations. Public health laws were among the earliest topics for legislation in the American colonies and the primacy of state authority in this area has continued into the present. One major change has been that, with the increasing attention to individual rights and liberties since the 1950s, public health law has been modernized to incorporate essential protections. This improvement was all the more necessary in light of a series of abuses of the quarantine power by public health officials, mostly in the late nineteenth and early twentieth centuries. In addition, the heightened focus on events like the 2001 anthrax attacks has led to a new genre of public health statute: emergency health powers acts.

Liability Issues for Individuals

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.

The Constitution and Individual Rights

Our Constitution is not only a charter of government, but also a repository of individual rights and liberties. Many rights, such as free speech and the right not to incriminate oneself, have become staples of popular culture through TV references and movie characters. Somewhat less well known, but just as important, is the language of the Fourteenth Amendment, which will be our touchstone for most of this chapter. The Fourteenth Amendment commands that no state shall “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.” The Constitution speaks in rather vague terms when it identifies rights to be protected, which leaves the heavy lifting of deciding exactly which criteria to use in any given case up to the courts. The most difficult situation is one that pits the most important government interests against the most important individual liberties. That is precisely the kind of problem that is likely to arise when the government is responding to a genuine emergency, and takes actions that deprive people of liberty or property.

The Reach of Congressional Power

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.

15 – Hospitals and Workplaces in Health Emergencies

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.

4 – The Judiciary

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.)

8 – Response Coordination and Incident Command Systems

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.

6 – Federal Agencies

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 has the effect of law and the administration and oversight of grants to state and local governments.

2 – The Powers of the President in an Emergency

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.