Nearly a Year Later, Is COVID-19 Still a Public Health “Emergency”?

by: Anthony F. Della Pelle
15 Feb 2021

It has been nearly a year since the COVID-19 pandemic has brought unprecedented uncertainty and consequences to our families, businesses, and communities.  Government agencies persist with actions to protect the health and safety of the American public. Regardless of whether these actions are necessary or are helping to fight the COVID-19 pandemic, nearly one year later, is COVID-19 still a public health “emergency”?

These issues were explored in more detail more recently in an article I authored entitled “Nearly a Year Later, Is COVID-19 Still a Public Health Emergency?”, published by the American Bar Association’s Section of Litigation, and which is available here.  The topic was also the subject of a recent interview on The Eminent Domain Podcast, where I appeared as a return guest of podcast host Clint Schumacher.

As both the published article and podcast interview reveal, these issues are examined not for their efficacy or the sociopolitical perspectives that they may raise, but instead for the focus on whether the efforts undertaken by government officials and agencies to help Americans endure the COVID-19 pandemic are, in fact, properly authorized legal actions and, if so, whether the impacts of those actions should be borne by the individuals affected by the actions, or by the public at large.  In other words, while actions such as executive orders shutting down businesses and limiting gatherings were either recognized by individuals or upheld by courts as being permissible and valid at the beginning of the pandemic last year, has the passage of time changed the playing field because the public health “emergency” presented by COVID-19 may no longer exist?  Few can deny or even question that the impacts of COVID-19 have been severe.  Hundreds of thousands of Americans have died from the virus and infections continue at rapid rates notwithstanding increasing vaccinations, continued social distancing, and other health-related protocols.  But, notwithstanding these very real and significant impacts upon public health, and upon so many businesses and communities, should the continued efforts of government be predominantly based on the issuance of executive orders issued by Governors, by the President, or by local mayors or other officials?  Even if these officials had the authority to issue such orders unilaterally last year, does that authority continue this year, in 2021, when other branches and agencies of government have had ample time to learn, study and act through legislative developments, regulatory changes, or otherwise, instead of the pen of the chief executive?

Many legislative authorizations that had originally empowered the executive branch of government to act in times of “emergency”  themselves contain language defining what constitutes an “emergency”, with restrictive language either based on time or other conditions.  However, where the legislation is unclear and the scope of the executive’s powers to act in emergencies is tested in judicial proceedings, where the complaining party or parties allege that the emergency may have qualified as such in the earlier stages of the pandemic, but can’t be similarly viewed under the same lens now, nearly one year later, will our courts increasingly begin to scrutinize and invalidate “emergency orders” on the basis that the emergency doesn’t exist anymore.  Will those courts instead conclude that the conditions, while significant, and even dire in some circumstances, are no longer emergencies but rather just part of our lives?  These questions are all but certain to be asked in future court challenges.  And, even in those future challenges where the courts uphold the government’s exercise of power, as time passes will the courts be more likely to recognize that government actions undertaken for the public good should be paid for by the public?

We’ll continue to monitor these events closely and welcome your thoughts and discussion.