An Assessment of State Laws Providing Gubernatorial Authority to Remove Legal Barriers to Emergency Response

Legal Perspectives is aimed at informing healthcare providers, emergency planners, public health practitioners, and other decision makers about important legal issues related to public health and healthcare preparedness and response. The articles describe these potentially challenging topics and conclude with the authors' suggestions for further action. The articles do not provide legal advice. Therefore, those affected by the issues discussed in this column should seek further guidance from legal counsel. Readers may submit topics of interest to the column's editor, Lainie Rutkow, JD, PhD, MPH, at lrutkow@jhu.edu. Governors play a fundamental role in emergency preparedness and can help facilitate rapid responses to emergencies. However, laws that operate successfully under normal circumstances can inadvertently create barriers during emergencies, delaying a timely response. State laws could thus limit, or even prohibit, necessary response efforts. To combat this risk, legislatures have passed emergency powers laws in each state granting governors the authority to declare a state of emergency and to exercise certain emergency powers to meet the needs of the emergency. Researchers conducted a 50-state legal assessment, which identified and examined state laws that give governors the discretion to modify existing laws or create new laws to respond effectively to any type of declared emergency. This article outlines the findings of that assessment, which identified 35 states that explicitly permit governors to suspend or amend both statutes and regulations; 7 states in which governors are permitted to amend regulations during a declared emergency but are not explicitly authorized to modify or remove statutes; and 8 states and the District of Columbia that provide no explicit authority to governors to change statutes or regulations during a declared emergency. The article also provides examples of how this power has been used in the past to demonstrate the utility and scope of this authority in a variety of public health threats.