Well, that didn’t take long.
In my column over the weekend, I recounted that, although President Trump had quite appropriately invoked the 1988 Stafford Act’s emergency declaration remedy, he had thus far resisted resorting to the Act’s major disaster declaration provision. I opined that, legally, it would be invalid to do the latter; but politically, that might not matter:
The president has floated the notion of triggering the act’s more potent declaration of a “major disaster.” Legally, that seems unlikely: The Stafford Act says such a declaration must be requested by the affected state(s), and its terms are confined to physical infrastructure damaged by natural catastrophes (e.g., hurricanes and earthquakes), not by pathogens that infect people but do not destroy structures. Yet, if states hard hit by COVID-19 were to make the request, and the president responded with additional tranches of federal assistance, how punctilious do we really think Americans would be about statutory construction?
Sure enough, by the end of the weekend, at the urging of the relevant state officials, the president had declared major disasters existed in New York, Washington, and California. (Or, as FEMA puts it with regard to the Golden State, “Presidente Donald J. Trump aprueba decaración de desastre mayor para el estado de California.”)
Obviously, COVID-19 is a dire medical emergency, but it simply does not qualify as a “major disaster.” Under federal law, this term is limited to natural disasters and similar catastrophes – the kind that damage and destroy physical infrastructure:
any natural catastrophe (including any hurricane, tornado, storm, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of states, tribes, territories, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.
Don’t get me wrong. I’m not complaining. These states need the help. With the Congress held hostage by ideological leftists, who are seeking drastic social change by extortion as the price of providing federal help to beleaguered states, businesses, and citizens, who can blame the president for extravagantly interpreting laws already on the books? Apparently, the alternative requires swallowing the likes of a payoff for Speaker Pelosi’s friends at the Kennedy Center ($35 million) and the National Endowment for the Arts ($300 million), a Post Office bail out ($11 billion in debt), a job-killing $15/hour national minimum wage, the Green New Deal wish-list, etc.
The point, though, is the one I made in the column. In times of crisis, political expedience outweighs legal niceties. In the straits COVID-19 has put us in, no one is going to have heartburn over the fact that the president is stretching a statute to the breaking point (and beyond) to grant much needed assistance to strapped states. The only question is whether doing so will serve as a precedent for future major disaster declarations based on alleged health disasters that are not nearly as disastrous.