The president won’t declare the opioid crisis a “national emergency” today, but he will ask the acting director of the Department of Health and Human Services to declare it a “public-health emergency,” according to assorted media reports.
The difference is important, and he made the right call. Perhaps the federal government should do more to fight the epidemic, but those efforts should start with Congress, which under the Constitution is supposed to have the power of the purse.
“National emergencies” allow the president to spend money in the affected area immediately, and the rules are laid out in the Stafford Act. Having looked at the statute and the related regulations, I agree with an anonymous administration source who talked to The Hill: The act “doesn’t offer authority that is helpful here.”
While the law’s wording is loose enough that Trump might have gotten away with using it, it’s clearly intended to let the president deal with abrupt catastrophes quickly. Here’s the process it lays out:
All requests for a declaration by the President that an emergency exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the situation is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As a part of such request, and as a prerequisite to emergency assistance under this Act, the Governor shall take appropriate action under State law and direct execution of the State’s emergency plan. The Governor shall furnish information describing the State and local efforts and resources which have been or will be used to alleviate the emergency, and will define the type and extent of Federal aid required. Based upon such Governor’s request, the President may declare that an emergency exists.
The requests have to be made within 30 days of the “incident,” per the Code of Federal Regulations.
There are some workarounds — the president can act unilaterally if “the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority,” and he can offer accelerated aid without a request if necessary to save lives, for example. And maybe Trump could have told states to ask him for emergency declarations, as the law’s definition of “emergency” is basically “whatever the president says an emergency is.”
But in general, the Stafford Act is a remarkably poor fit for an epidemic that has been slowly and steadily building up across the entire country for two decades. Our current levels of federal spending on the crisis reflect Congress’s considered decision as to how much should be spent; it would be an abuse of power for the president to override that decision under the guise of national-emergency relief.
Public-health emergencies, by contrast, are spelled out in the Public Health Service Act. The secretary of health and human services simply has to find that “a disease or disorder presents a public health emergency,” and is then able to “take such action as may be appropriate to respond to the public health emergency, including making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention.”
This is a much more limited authority — The Hill notes there’s just $57,000 in the public-health-emergency fund. But that’s the authority, and the money, that Congress has actually given to the executive branch for a situation like this one. If that’s not enough, Congress should revisit the issue.