States of emergency

Over at the New England Journal of Medicine, Rebecca Haffajee, Wendy Parmet, and Michelle Mello have a provocative piece criticizing Governor Deval Patrick’s invocation of emergency powers in response to the opioid-addiction epidemic in Massachusetts.

Without discounting the seriousness of the opioid problem, the authors question whether it’s the sort of public-health emergency that warrants bypassing the usual legal constraints on executive action. “Although the hallmarks of a traditional emergency — exigency, calamitous harm, unavoidability of harm through ordinary processes — may justify relaxing such legal protections, health threats related to noncommunicable diseases or commonplace injuries seldom will.” They conclude with the following:

Most of the policies that were advanced to address the opioid-addiction crisis in Massachusetts were prudent. But the declaration sets a troubling precedent in the eyes of some who believe that law can be a positive force for public health. Faced with a substantial public health problem such as opioid addiction, officials may be tempted to use their emergency powers. But like opiates, those powers should be used only when needed.

The concern about setting a troubling precedent echoes the concern raised by some critics of President Obama’s assertion of authority to delay provisions of the ACA. And it’s not just the ACA: check out Andrew Prokop’s article at Vox for a measured discussion of a number of ways that Obama has sought to expand presidential power.

The Haffajee, Parmet, and Mello article is a useful reminder that the president doesn’t have a monopoly on expansive claims of executive authority. Possible state-level abuse is especially worrisome given the extraordinary powers that governors can wield in times of emergency. In many states, for example, they can impose quarantines, call out the National Guard, and commandeer property.

Yes, it’s good that governors have broad powers to deal with emergencies. But those powers should be invoked cautiously and as a last resort. Otherwise, today’s emergency declaration could set could set the stage for tomorrow’s abuses.


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