What does it mean to declare a national emergency under the Stafford Act or the Public Health Services Act?

Question

The Commission on Combating Drug Addiction and the Opioid Crisis issued an interim report.

The first and most urgent recommendation of this Commission is direct and completely within your control. Declare a national emergency under either the Public Health Service Act or the Stafford Act. With approximately 142 Americans dying every day, America is enduring a death toll equal to September 11th every three weeks. After September 11th, our President and our nation banded together to use every tool at our disposal to prevent any further American deaths. Your declaration would empower your cabinet to take bold steps and would force Congress to focus on funding and empowering the Executive Branch even further to deal with this loss of life. It would also awaken every American to this simple fact: if this scourge has not found you or your family yet, without bold action by everyone, it soon will. You, Mr. President, are the only person who can bring this type of intensity to the emergency and we believe you have the will to do so and to do so immediately.

(bolding mine)

The report is vague about what exactly that would mean, other than "empower" and "focus on funding". What would declaring a national emergency under these acts do or enable the government to do, that it wouldn't otherwise? Would it matter which act it was declared under?

Answer 1

The Stafford Act:

This act allows the president to declare a national disaster or emergency, and describes what FEMA should do to coordinate the response. "Disaster" is reserved for natural disasters, so this would be an "emergency".

There are two ways for an emergency to be declared:

1. The governor of the state follows their state's emergency plan and determines that their state does not have enough resources to handle it. The governor then makes a request to the president for federal assistance.
2. The president can declare a national emergency without a request, if it occurs in an area of "federal primary responsibility". (For example, an emergency was declared under this act for the Murrah Federal Building bombing, because it was US government property.

Once declared, the president can direct any federal agency to help the area, coordinate relief, distribute supplies, and provide emergency communications or transportation. The president can also authorize loans to the local government or housing assistance for affected citizens. In addition, Title VII Section 701 says that "the President may prescribe such rules and regulations as may be necessary and proper to carry out any of the provisions of this Act".

The Public Health Service Act:

Section 319 authorizes the Secretary of Health and Human Services (HHS) to determine if a public health emergency exists. Once a public health emergency has been determined, Secretary of HHS can:

• use funds from the Public Health Emergency Fund
• temporarily reassign public health personnel
• enforce quarantine regulations
• use drugs from the Strategic National Stockpile
• make grants to investigate the cause, treatment, or prevention of whatever caused the emergency
• issue an Emergency Use Authorization for unapproved drugs or other products

The Secretary of HHS can also waive or modify requirements of Medicare, Medicaid, and the State Children's Health Insurance Program under Section 1135 of the Social Security Act, if a Stafford Act or National Emergencies Act declaration is also in place.

The main differences between the two seem to be:

• who declares the emergency (president vs. Secretary of HHS)
• if a governor's request is needed (yes, if it's not in an area of federal responsibility vs. no)
• which department handles the emergency (FEMA vs. HHS)
• where the resources come from (any federal agency vs. HHS)

The president may run into issues with Stafford, because to declare a national emergency without governor requests, he will have to argue that the drug addiction issues occur in a federal area of responsibility. (In all descriptions I found, "area" appears to be interpreted only as a literal geographic locale.) Otherwise, he must wait for governors of affected states to request assistance, which they may or may not want to do. I wasn't able to find examples of the Stafford Act being invoked for instances like this, where the "emergency" is not a singular event, so it's possible there would be pushback from other political figures as well.

On the other hand, the Secretary of HHS can unilaterally declare a public health emergency. Although not as wide-ranging as Stafford, this would allow use of emergency health-related resources. This is arguably easier to do, and would still enable the most immediate recommendations of the commission regarding making overdose rescue drugs more available and increasing funding for treatment and education.

References:

• CDC summary of federal laws pertaining to public health emergencies
• Stafford Act
• Summary of Stafford Act
• FEMA overview of typical Stafford Act reponse
• PHSA
• Summary of PHSA