“State of Emergency” Prerogative Facing Public Health Threats

By Malak Trabelsi Loeb

 

Introduction

Health has a fundamental impact on the very nature of human functioning, which represents the essence of every sphere of a state’s continuity. Without healthy communities, productivity would be disrupted, socioeconomic development would be hindered, and the drive to creativity would be faded. On the contrary, with healthy communities, economies would thrive due to the positive impact of health on economic determinants such as labor abundance and capital accumulation. That is why public health falls under the state’s function to protect the public interest. The fierce battle spearheaded by governments around the world against the COVID-19 spread is a manifestation of a state’s duty to protect public health. Many states have used the “lockdown” strategy to manage the fast-spreading pandemic to break the cycle of its dissemination. Restrictive measures like “lockdown” derogate from people’s protected freedoms, such as freedom of movement. Nonetheless, the implementation of similar restrictive measures may be legitimate only in a “state of emergency” situation. The latter enabled the affected states to exercise their police power and restrict people’s rights and liberties to protect the general interest from the imminent health threat. While being in “lockdown”, the author sought the importance to address the concept of “state of emergency” and to demonstrate how liberal states exercise their legitimate police powers to protect public health for the greater good of the public from COVID-19 pandemic.

A. The State of Emergency and Exceptional Circumstances Concept

Liberal states exercise their powers within their constitutional framework to both safeguard and regulate public health. That to say that the legal basis of public health, under the philosophy of public law in liberal states, emanates from the constitutional protection of people’s rights to life, safety, and health[1]. On the other hand, liberal states are empowered by people to safeguard, promote, and regulate public health for the general interest. Thus, the protection of public health falls under the duty of the state in protecting people’s rights[2]. In emergencies, states will have to make trade-offs for the common interest. Its exercise of restrictive measures while derogating from the usually protected rights and liberties must be proportional to the safeguarded interest.

During extreme situations, liberal states use their special police powers to derogate from their duties of protecting fundamental rights to safeguard public welfare, health, and safety. States’ police powers during emergencies are exceptional to the ordinary powers exercised during ordinary times[3]. The theory of exceptional circumstances finds its roots in the Roman tradition, as it was exercised during wars and internal uprisings. During these times, the Romans granted all powers to whom they called a “dictator”, to circumvent the imminent threat. The Roman concept was re-instituted into the modern political arena, in a re-shaped philosophy to fit the modern socio-political reality. Its manifestation within modern state constitutions may be pinned back to the “state of emergency concept” construed by the “French Constituent Assembly” in 1978. The French constituents, at that time, has differentiated the “state of siege” from the “state of peace”, whereby under the former, the military commander is conferred an extraordinary police power to maintain the public order[4].

Nonetheless, it is of importance to mention that today’s known concept of the “state of emergency” under the French legal system, was the evolutionary output of the judge-made “exceptional circumstances theory” in the 1918 “Heyries” case. In its paramount decision, the French “Conseil d’ état” (Counsel of State) affirmed the right of the public servant to ensure the continuation of the state’s functions in “all circumstances”. Furthermore, the French “Conseil d’ état” emphasized the critical role of the police powers during exceptional circumstances to protect the general interest in the 1919 “Dol et Laurent” case. Under the latter’s decision, the Conseil d’ état held that “exceptional circumstances authorizes the extension of the powers of restraints to the detriment of the individual liberties[5]. However, the French legal system is not the only system to include “the state of emergency” concept facing a public threat. Most states consecrated provisions within their constitutions to protect the public interest and ascertain the continuity of the state’s function.

In a liberal state, the constitution is the matrix; it is also the foundation of civil liberties. Consequently, the liberal state is under scrutiny for any violation of these protected rights and liberties through various mechanisms that depends on its legal system and the political reality. Nevertheless, the most used recourse against the state abuse of power or unconstitutional actions is the judicial review[6]. During exceptional circumstances, states are empowered by people to exercise extraordinary powers to safeguard the general interest, like national security and public health. State deploy exceptional powers to face imminent peril that could cause a potential threat to the public order or public calamities. While states exercise such powers, they may derogate from constitutional liberties[7].

In the course of exercising its emergency power during exceptional circumstances, public authorities must meet specific conditions to acquire the legality of their actions. Taking the French legal system as an example, the “state of emergency” is governed by Article 16 of the French Constitution. It conferred a discretionary power to the president in declaring the state of emergency. As a consequence of the state of emergency declaration, the president is empowered to enact legislation. Nonetheless, the French constitution upheld guarantees against the potential abuse of the executive branch. The first guarantee is the limitation in time of the “state of emergency” and the grant of the president’s power. The Second guarantee is related to the legislative branch protection. The French constitution protected the parliament from getting dissolved by the president during this emergency[8]. The rationale for these guarantees is to moderate the state’s police power and protect people from potential abuse while the executive branch exercises its duty to protect the public interest.

However, the exercised public power during the “state of emergency” and the setting aside of protected rights and liberties shall be proportional to the imminent threat. The state will have to conciliate the requirement of public threat with the preservation of constitutional liberties. Such a mechanism is often criticized for using the public interest prerogative under a national security threat for serving other interests. As early as 1984, Emerson argued that governments used the national security claims to distract the public from critical issues such as “corruption, incompetence, embarrassment, or violation of laws”[9]. Furthermore, governments’ use of the national security threat and the derogation from constitutional liberties took another level after the September 11 attack. Governments around the world have amended their “state of emergency” laws to protect the public interest from constant emanant threats. Consequently, they enforced more robust preventive measures, such as travel bans based on nationality and intensified communication and online surveillance[10]. Without being carried away into the labyrinthian national security dilemma under public interest protection, the public health risk has been a real critical threat to not only one nation but the international community. Thus, it is inevitable to take the needed timely measures by declaring the “state of emergency” facing public health threats like pandemics. That is why states’ response to public health risk has become a common denominator in every legal system to face common health risks.

B. The Application of “State of Emergency” to Protect Public health

Since 2001, the world has witnessed a series of public health threats baring national security risks such as the 2001 Anthrax attacks in the United States of America (U.S.),  2003 SARS epidemic in China, 2009 outbreak in the U.S., and 2014 Ebola outbreak in West Africa. Consequently, states promulgated laws to address similar threats. However, they addressed the public health emergency differently[11]. While some chose to apply a general state of emergency law to manage all risks, as public health threats and terrorist threats, others sought the need to promulgate narrower laws with lesser public power to face specific emergencies. In the second situation, each type of emergency is governed by specific legislation that determines its scope of application and the competent authority who has jurisdiction over the emergency[12]. Thus, an imminent threat to public health would declare either the general emergency legislation or a specific public health emergency law, depending on the legal system. A declaration of a public health emergency permits the use of extraordinary public power as well as the allocation of grant money to address the emergency[13].

The declaration of public health emergency in pandemic situations enables the public health authorities the exercise of its police power, by applying custom-made measures in response to the specific nature of the virus. Under the philosophy of the exceptional circumstances, public health declarations grant to the public health sector more flexibility to act within specific guidelines to the health emergencies. The granted flexibility in carrying the healthcare services, such as waiving doctors’ licensing requirements, may be critical in federal political systems[14]. The public health emergency law enables the state’s institutions to share the responsibility to act within their jurisdictions and the scope of applicable law. It facilitates the response to the threat and coordinates on the various levels to contain the common threat. For example, the public health emergency declaration may grant health care providers from different regions or countries to practice within the affected area. It equally grants expedite procedures to overcome bureaucratic administrative procedures, mainly in terms of the distribution of medical supplies[15].

The application of the above mentioned analysis may be presented from a national legal system perspective. A brief overview will be made in the following section to picture how this concept is applied under the American legal system.

C. The Application of Public Health Emergency Facing COVID-19

Public health emergency has gained a particular focus in the U.S. after the September 11, 2001, terrorist attack. Its declaration gained traction during the mailed anthrax letters attacks, targeting Congress members in the same year as previously mentioned. The declaration of the national emergency by the head of the states emanates from the “National Emergency Act”[16]. The latter has put an extensive reservoir of powers under the president’s reach with around 136 statutes[17]. Nonetheless, the activation of these statutes shall be proportional to the public interest prerogative. The extension of the executive brunch’s exercise of the emergency power must be proportional to the derogation from the constitutionally protected rights and liberties.

Various U.S. states have enacted their own state of emergency laws to timely respond to future public health risks within their jurisdictions and protect their public interest. Inspired by the “Model State Emergency Health Powers Act” (MSEHPA), numerous U.S. States have integrated within their legislations emergency public health declarations to enable the use of public health emergency powers[18]. The MSEHPA was created in a collaboration between “Johns Hopkins University” and “Georgetown University Law Center”, to fill the legal gaps of the laws in responding to emergency health risks. The MSEHPA allows adequate preparedness and management measures to face potential threats of public health nature. It grants the competent agencies expedite power and access to extensive resources to the local agencies. Nonetheless, despite various states’ ability to exercise public health powers, the local governments’ declaration of the state of emergency facing pandemics remain infrequent[19]. In the case of large-scale threats, the declaration of the state of emergency emanates from the head of the state’s powers as it is the case of the COVID-19 pandemic as it will be demonstrated next.

In response to the COVID-19 outbreak in the U.S., President Donald J. Trump has declared the state of emergency to enable the management of the pandemic On March 13, 2020. He proclaimed, “The National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak” (the U.S. COVID-19 Emergency Act)[20]. The latter has widened the jurisdiction of the U.S. Department of Health and Human Services (HSS) by temporarily holding the Social Security powers. It enabled the HSS to waive various legal requirements to allow patients from accessing healthcare during the pandemic. Notably, the U.S. COVID-19 Emergency Act conferred to the HSS the power to “temporarily” waive or modify Medicare, Medicaid, and Children Health Insurance Programs and health insurance regulations[21]. The HSS is also empowered to derogate from “Telemedicine” stringing laws to give healthcare providers the ability to remotely manage the pandemic.

Furthermore, the HSS was granted the power to temporarily waive the federal requirements to doctors’ provision of healthcare services within the affected states[22]. In response to the state of emergency declaration under the U.S. COVID-19 Emergency Act, local authorities across the U.S. have passed executive orders restricting people’s constitutionally protected freedoms. For example, On March 16, 2020, the “Health Officer of The County of Alameda”, California imposed a “Shelter At Place of Residence” Order. The latter, which was declared under the authority of “California Health And Safety Code Sections 101040, 101085, And 120175”, held the following[23]:

“All Individuals Living In The County To Shelter At Their Place Of Residence Except That They May Leave To Provide Or Receive Certain Essential Services Or Engage In Certain Essential Activities And Work For Essential Businesses And Governmental Services; Exempting Individuals Experiencing Homelessness From The Shelter In Place Order But Urging Them To Find Shelter And Government Agencies To Provide It; Directing All Businesses And Governmental Agencies To Cease Non-Essential Operations At Physical Locations In The County; Prohibiting All Non-Essential Gatherings Of Any Number Of Individuals; And Ordering Cessation Of All Non-Essential Travel.”

The order has imposed various prescriptions, derogating from protected freedoms such as freedom of movement, freedom to do business, and freedom to have a close social encounter. The Health Director of the County intent from the order under Section (1), is to minimize people’s contacts to slow the dissemination of COVID-19[24]. Nonetheless, the order has laid exceptions to the freedoms’ restrictions. For example, the order has restricted the freedom of movement by imposing “self-isolation in the place of residence”, unless necessity dictates the need to leave the residence like to perform or obtain a vital service[25]. It also granted an exception to the freedom of movement’s restriction to enable people to perform “Essential Activities”, “Essential Government Functions”, or to perform “Essential Businesses”[26]. Furthermore, the order held that the allowed activities (the exceptions to the restrictions) must be performed while keeping a social distance to prevent the contamination. The executive order has exhaustively determined each essential activity in order to meet the legal certainty requirements.

To ensure the implementation of its measures, the order held that its violation is a misdemeanor, punishable by fine, imprisonment, or both under the “California Health and Safety Code § 120295, et seq. The order evidenced the proportionality between the derogation from the freedoms and the exceptions to the derogation to balance the different interests: the general interest (the prevention from further spread of the virus) with other interests in the form of “Essential” performances or needs. However, due to the fast-spreading rate of the pandemic in California, which is tracked to be doubling every four days[27], the local health authority may impose more stringent measures to prevent further dissemination of the pandemic.

The above demonstrated “state of emergency” measures facing the public health exceptional circumstances may justify the freedom and liberties restrictions. As of March 28, 2020 (18:00 CET), the disease has affected 201 countries, with 575,444 confirmed cases worldwide and 26,654 total deaths[28]. According to the Centers for Disease Control and Prevention (CDC), COVID-19 spreads through individuals who are in proximity of fewer than 6 feet (about 1.80 meters). The risk of contamination of others within the risk zone may be made through respiratory droplets dispersed in the air from an infected person’s cough or sneeze. What made the risk of the spread of COVID-19 higher is the contamination from a person who does not show signs of infection, as well as the possibility of contamination from one touching a contaminated surface and passes it along to his mouth, nose, or even eyes[29].

The large spreading COVID-19 has caused devastating consequences due to its global impact on global public health. The question to ask amid the faced situation “Do freedoms like freedom of movement and economic freedom are more eligible for protection when the state is facing global health crises?” The answer to the question hinges on the philosophical nature of public interest protection, as above explained. Governments have to make trade-offs between protecting civil rights and protecting the general interest. To reconcile the two interests in times of emergency, it may be necessary to set aside or derogate from the people’s rights and liberties.

The derogation from rights and liberties during a “state of emergency” may refer to Thomas Hobbes’s individualistic perspective.  Hobbes, in his “Leviathan”, argued that, in times of imminent peril, people turn to their sovereign or “Leviathan” to seek protection. He claimed that it is by nature that mankind, driven by fear, surrenders his liberties and rights to the “Leviathan”, in exchange for the protection from a greater danger[30]. Nonetheless, Hobbes’s statement may be argued, since, in liberal states, individuals do not surrender their liberties to the sovereign power of the government, out of fear. Hobbes’s statement may be applicable in a dictatorship but cannot be held in liberal states since the constitutional conciliation of civil liberties with public interest is construed in time of peace and not during exceptional circumstances. In other words, the constitutional surrender of own rights for potential future threats for the greater good of the public interest is a self-preserving mechanism. People choose to surrender their liberties through a constitutionally based pre-commitment to enable the government to carry its duty in protecting the public interest during exceptional circumstances. However, people’s self-preservation through pre-commitment to be protected from public threats hinges on the state efficiency in making sound and timely decisions as well as its degree of preparedness and institutional risk mitigation effectiveness.

Conclusion

The “state of emergency” declaration facing fast-spreading communicable diseases, enables the authorities to manage the cycle of the disease spread. The affected state exercises its emergency police powers to timely implement the customized cycle of response, recovery, mitigation, and preparedness to contain the pandemic. In exceptional circumstances like the COVID -19 outbreak, the grant of emergency police powers to deal with the disease spread may not be, alone, sufficient to contain the pandemic and manage its consequences. To mitigate the risk of COVID-19, competent authorities must use their emergency police powers efficiently by taking a rapid response and apply the necessary measures to mitigate the health risk. Additionally, due to its devastating effects on nations, especially on the most vulnerable ones, states bear international duties to manage the pandemic following the International Health Regulations standards.

Furthermore, the state’s allocation of funds, healthcare system efficacy, institutional efficiency, and technological and capabilities are indispensable determinants to contain the pandemic. Nevertheless, such a statement may be a solution for states with abundant resources and capability, but it could be the most challenging task in other countries. How can states with long socioeconomic challenges and inefficient institutions, face the COVID-19 spread? An answer to such a question will have to be addressed in the aftermath once the pandemic is contained to study the consequences. However, civil society may play a fundamental role to help in mitigating pandemic risks. Private institutions bear a social responsibility to collaborate with public entities to manage the crisis. Private-Public partnership in disaster management is critical to enable states to use the private sectors’ humanitarian aids in the form of Research & Development, fund rising, technological means, know-how, infrastructure, capacity building, and awareness-raising. The latter is crucial to enable the inclusion of people in the pandemic preparedness and response. Nonetheless, communities, individuals, and families have an essential role to play in public health emergency management. That is why a bottom-up approach in times of health crisis remains a fundamental mechanism to prevent the spread of communicable diseases and assist public authorities in health crisis management.

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Malak Trabelsi Loeb

ABOUT THE AUTHOR
Malak Trabelsi Loeb is the TAFFD’s Ambassador to Dubai – UAE.  She is a Senior Legal Consultant specialized in International Business Law and International Space Law, as well as an Adjudicator in the International Court for Dispute Resolution, International Commercial Arbitrator at the International Arbitration Organization. Her practice focuses on complex International Business transactions, Due Diligence, International contracts, Commercial legal matters, Alternative Dispute Resolution, Corporate Governance, Company Law, Space Insurance, New Space Legal Challenges and Space policies. Mrs. Loeb is advocating for Sustainable Space For Humanity addressing the complex outer space socioeconomic and environmental outer space interrelated dimensions. Sustainable Space For humanity advocacy aims to keep the peaceful use of outer space while achieving the economic and social development for the present and future generations without deteriorating the outer space environment.

Mrs. Loeb is a Lecturer in International Relations and Diplomacy, Academic Legal Researcher in International Space Law and a PhD Candidate addressing interdisciplinary research on International Space Law and Sustainable Development. Her writings are addressing various areas in the space fields that are interconnected, such as Space Economy, Space Environment and their Social Impact.
Mrs. Loeb obtained, with honor, her bachelor’s degree with dual majors in Law and Economics from the University of Al Jazeera, UAE. She then earned her first master’s in public international and European Law in 2018 and the second master’s in international business law from Paris Sorbonne University, Abu Dhabi/ Paris Descartes University, France, with excellent achievements and top of the batch GPAs.
In the course of her professional journey, Mrs. Loeb has been advocating for employees right’ and assist them to settle their conflicts with their employers. She is a human rights activist and strives to fight against human trafficking. Mrs. Loeb has received the title of Champion of Tolerance from the UAE Ministry of Tolerance in 2018. She endeavors to empower woman and raises awareness to achieve the United Nations Sustainable Development Goals.