Emergency Powers in Pandemic Response

Earlier this month, the World Organization for Animal Health reported the first H7N9 avian influenza outbreak in the United States since 2017. The spread of the avian influenza virus, more commonly known as bird flu, has killed poultry populations worldwide, leading to supply chain disruptions and rising food costs. To date, the bird flu has spread among poultry, dairy cattle, and even farm workers across multiple states, raising fears of a new pandemic.

Fragmented pandemic authority in the United States creates a complex regulatory landscape where federal and state powers often overlap—and sometimes collide. At the federal level, the Pandemic and All-Hazards Preparedness Act establishes the Assistant Secretary for Preparedness and Response to coordinate national emergency health initiatives. In addition, the Public Readiness and Emergency Preparedness Act shields manufacturers and distributors of pandemic resources from liability. Together, these laws structure federal action when novel pathogens emerge.

The U.S. Centers for Disease Control and Prevention (CDC) also maintains sophisticated surveillance systems to detect and assess potential outbreaks. For example, the CDC’s Influenza Risk Assessment Tool evaluates the pandemic threat posed by novel influenza strains. The agency also shares regular public health updates through its Health Alert Network.

Since January 20, the CDC has removed critical bird flu data and analysis from its website. The agency discontinued its weekly influenza surveillance reports without explanation and made avian influenza case details became more difficult to access, raising concerns about regulatory transparency amid an evolving public health threat. Even as it has narrowed access to influenza data, the CDC has accelerated the development of human vaccines against circulating strains of the bird flu virus and reviewed the effectiveness of existing antiviral medications.

Should these preventive measures fail, the U.S. Department of Health and Human Services may declare a public health emergency. Such a declaration would release Strategic National Stockpile resources, including 20 million doses of pre-pandemic H5N1 vaccine and antiviral medications. The declaration would also trigger liability protections for vaccine manufacturers under the Public Readiness and Emergency Preparedness Act and authorize the expedited approval of countermeasures.

Since the COVID-19 pandemic, at least 26 states have enacted laws restricting public health emergency powers. Florida now prohibits vaccine mandates during public health emergencies, while Ohio prevents health officials from implementing mask requirements during outbreaks. Born of the political backlash against federal COVID-19 mandates, these restrictions now risk hampering responses to emerging threats such as bird flu.

Balancing centralized expertise and local control remains pivotal to effective governance as new infectious threats emerge. Longstanding legal frameworks enable coordinated action, but new restrictions on emergency powers threaten the ability of state and federal governments to act rapidly to contain outbreaks. Navigating these tensions will be crucial as governments confront the risks posed by emerging infectious diseases.

In this week’s Saturday Seminar, scholars discuss the scope of government emergency powers during pandemics.

• In a recent article in the Saint Louis University Journal of Health Law & Policy, Robert Gatter, a professor at Saint Louis University School of Law, argues that the Model Public-Health Emergency Authority Act (MPHEAA) would offer a constitutional framework for executive branch actions during public health emergencies. Gatter explains that the MPHEAA would empower governors to issue emergency orders that are “rationally designed” to address the emergency. Gatter emphasizes that the MPHEAA would also prioritize executive accountability through mandatory public reporting, consideration of impacts on vulnerable populations, and judicial review. Gatter concludes that, if enacted, the MPHEAA would strengthen public health emergency preparedness by ensuring governors have the necessary authority to act during crises.
• In an article in the Roger Williams University Law Review, practitioner Madalyn McGunagle argues that the Defense Production Act (DPA) should be expanded to address public health crises. McGunagle explains that the DPA authorizes the President to expand production of essential supplies and prevent price gouging during an emergency. McGunagle proposes three amendments to the DPA: (1) redefining “national defense” to include “public health and safety”; (2) adding “public health crises” as a trigger for presidential action; and (3) mandating DPA activation in national emergencies. McGunagle concludes that these amendments would increase pandemic preparedness by ensuring that essential materials are produced without delay.
• In an article in the Lewis & Clark Law Review, Nancy J. Knauer, a professor at Temple University Beasley School of Law, argues for a more effective disaster policy in the United States. Knauer explains that the current disaster relief regime is multi-tiered, with overlapping authorities between the federal, state, and local governments, often leading to fragmented responsibility and oversight challenges. To address this problem, Knauer proposes comprehensive institutional review to identify oversight gaps, enhanced whistleblower protections, and an independent oversight body. Knauer concludes that although the multi-level structure of the current disaster relief regime in the United States provides nimbleness and responsiveness, it requires stronger oversight mechanisms to ensure effectiveness, efficiency, and equity in disaster management.
• In an article in the Georgia Law Review, Duncan Fairgrieve, a professor of law at l’Université Paris Dauphine PSL, and François Lichère, a professor at l’Université Jean Moulin Lyon 3, compare judicial review of COVID-19 policies in the United Kingdom and France. Fairgrieve and Lichère point out that although both countries enacted extensive pandemic legislation, the United Kingdom had fewer judicial challenges to pandemic restrictions, with courts taking a deferential approach to executive actions. By contrast, Fairgrieve and Lichère argue, France saw significantly more judicial challenges, with courts showing greater willingness to scrutinize and strike down specific measures. Fairgrieve and Lichère attribute these differences to procedural, institutional, and cultural factors—France’s expedited judicial procedures resolved cases quickly, while the U.K.’s adversarial system created barriers to review.
• In an article in the Maryland Law Review, Christine Coughlin, a professor at Wake Forest Law, and Ana Iltis, a professor at Wake Forest University, examine executive declarations and terminations of public health emergencies. Coughlin and Iltis explain that vague or inconsistent laws slow pandemic responses, but caution against unchecked grants of executive authority or overly rigid legislative constraints. Coughlin and Iltis propose convening an interdisciplinary team to define metrics and criteria for declaring and ending public health emergencies. Coughlin and Iltis conclude that setting clear and appropriate standards for declaring and ending public health emergencies would reinforce accountability, foster public confidence, and reduce political polarization.
• In an article in the Georgia State University Law Review, practitioners Julia Whitehead and Braden Leach argue that pandemic response is not solely a state function. Tracing the history of U.S. pandemic responses, especially the federal government’s role in smallpox vaccination, Whitehead and Leach highlight the federal government’s longstanding role in disease control. Whitehead and Leach contend that federal mandates tied to funding are likely constitutional, whereas mandates not related to funding—such as the Biden Administration’s nationwide vaccine mandate—likely exceed federal authority under the Commerce Clause. Whitehead and Leach urge policymakers and courts to consider historical precedents when determining the boundaries of state and federal authority in future health crises.