An Influential Yet Little-Known Document May Determine Your Civil Liberties

A commission of law officials from all fifty states is in the process of creating a legal framework to give wide powers to governors and state authorities during emergencies

When I spoke to a couple attorney friends recently and asked them about the Uniform Law Commission one responded, “That’s really in the weeds legal stuff! Why are you interested in the ULC?” The other laughed and said, “I haven’t thought about this since law school.”

But the ULC—an organization that is highly influential yet scarcely known to the general public—drew my attention because it has taken on an issue of great and direct consequence to anyone invested in civil liberties: state emergency powers.

The ULC’s mission seems fairly prosaic: differences in state laws lead to a lot of headaches for interstate business dealings and other legal matters—the ULC exists to remedy this by making state laws more uniform. The organization comprises commissioners from each state who work together to draft statutes (essentially model laws), with the aim that individual state legislatures will then vote to adopt these statutes—the more states that adopt them the better. The Commission has influenced the passing of hundreds of laws, with its most famous accomplishment the Uniform Commercial Code, which governs commercial transactions.

But aside from the typical interstate legal matters under the organization’s mandate, one of its current projects—which seeks to unify and clarify governors’ special powers—may ultimately have a far more profound impact.

In a series of meetings that began in mid 2021, continuing through the present, a committee within the ULC has met to discuss and refine its draft of the Model Public-Health-Emergency Authority Act. (A vote on the Act by the full ULC is on the agenda for the Commission’s annual meeting in July.) The intention of the Act is to clarify “the powers of a governor to declare a public health emergency and to issue orders in response to that emergency.” The draft language that the ULC ultimately settles on, if your state legislature adopts the Act, will determine the extent of your governor’s ability to act as a mini dictator in the event that they declare an emergency.

Considering the wide-ranging implications, and the political and emotional heat around the infringement on civil liberties over the last three years, it is remarkable that, as far as I’ve been able to see, there has been absolutely zero media coverage on this.

Whether the powers that this document will grant are reasonable or alarming will be in the eye of the beholder.

***

During the pandemic there was a great deal of uncertainty about the legal authority of governors and other state officials to enact certain emergency laws and declarations. This led to many lawsuits by individuals, businesses, and even state legislatures challenging that executive authority. And the legal ambiguity around many pandemic declarations resulted in new legislation in many states that explicitly clawed back public health powers from governors and executive branch officials.

The ULC wants to change that. It wants the legal authority that’s given to governors to be clear. And a memo indicates that the ULC expects the adoption of the Act will result in people suing only if the Act itself wasn’t followed, rather than suing based on a claim that the governor’s actions were unconstitutional. This may limit the scope of legal recourse.

What were some of those ambiguous emergency powers during the pandemic? As I reported, in Santa Clara County, California, churches were barred from having full indoor services for seven months (while at the same time malls, casinos, liquor stores, and museums were open to varying degrees). The right to free assembly was curtailed, with limits placed on public gatherings (with the notable exception of the BLM protests). Various curfews were imposed. Vaccine passport systems were enacted. Masks were mandated in numerous spaces, from stores to schools. In New York City, mayor Eric Adams exercised his authority to force 2-to-4-year-olds to mask all day in city-run schools and daycares, long after the rest of New Yorkers were free from that requirement in most of city life. Governors throughout the country shut down schools in spring of 2020. And the following school year most governors suspended the requirement for a minimum number of days that schools needed to be open, resulting in thousands of schools remaining closed, some for more than a year.

Likely, most citizens believe the government should have some authority to impose certain rules that supersede normal laws during an emergency. The challenge is there is clearly a wide range of opinions on what those rules can be, how long they can be enacted, and what, if any, approval should be required from other branches of government.

***

The draft legislation seeks to weigh the value of enabling the executive branch to act swiftly and authoritatively against the harms of infringing on personal liberties and usurping the normal legislative process. By my read, however, it fails in this regard.

The Act states that, by executive order, a governor can declare a public health emergency. The emergency term can last 90 days, after which the governor can repeatedly renew it every 90 days, without limitation, as long as written notice is provided to the legislature and the legislature has an opportunity to be in session.

I appreciate they included the 90-day sunset clause, considering so many declarations during the pandemic lasted far longer than was necessary or supported by any evidence (see: the suspension of mandated annual days of school, resulting in extraordinarily long school closures). Yet 90 days still seems like an awfully long time for a single government branch to unilaterally pull the master switch on society. Moreover, the governor can simply renew the emergency as many times as desired, making the 90-day clause more of a formality rather than an actual brake.

The powers the Act seeks to endow governors with are not trivial. They include the ability to issue orders for :

• testing, isolation, quarantine, movement, gathering, evacuation, or relocation of individuals;

• the suspension of any statute, rule, and regulation if strict compliance would hinder efforts to respond to the public health emergency;

• zoning, operation, commandeering, use, or management of buildings, shelters, facilities, parks, outdoor space, or other physical space, and the management of activities in those places.

As if that wasn’t expansive enough, the Act also states a governor “may issue any order to eliminate, reduce, contain, or mitigate an effect of the public-health emergency.” [Emphasis mine.] It’s hard to imagine more open-ended powers than that.

Just remember, even if you were in favor of some of the infringements during the pandemic, you may not like who is in charge next time or what they choose to impose.

The ULC wants governors to take into consideration a number of “burdens” that could result from an order, including “deaths, illnesses, injuries, financial losses, job losses, business closures,” and other health and economic burdens.

Conspicuously absent from this list is loss of education or the ability to attend school.

It is an astonishing comment on American society that, as one of the developed Western countries with the longest school closures—which are now, belatedly, widely regarded as having been unnecessarily lengthy and harmful—the harm of school closures is not on the list of burdens to consider.

The other critical piece missing from the Act is defining some sort of framework for what, exactly, constitutes an emergency to begin with.

The Act only outlines who gets to decide what is an emergency, and how that determination can be made. One passage on this point is particularly worrisome:

“Information about the nature and risks of a public-health threat may be scant at the time the Governor initially determines that a declaration of public-health emergency is warranted… The Governor is not required to wait for more complete or definitive evidence about the nature and risks posted by an agent or toxin before making those determinations.”

In essence, it is up to a governor’s whim whether a circumstance is an emergency or not, requiring no definitive evidence.

The ULC members have spent an extensive amount of time and effort trying to make a balanced and comprehensive statute model about emergency powers for states to enact. Yet this is all after the fact. The core issue is left largely unexplored: what is an emergency?

The criteria are generically defined as an “imminent threat or actual appearance of an infectious, biologic, radiologic, or chemical agent or toxin, regardless of cause, that poses a high probability” to cause a large number of deaths or serious disabilities or impact the availability of emergency resources.

There are no mechanisms outlined for how “imminent threat” and all of the above criteria are to be determined. The biggest controversy and source of debate—and acrimony—during the pandemic was the disagreement over how much of a threat Covid actually posed to the entire population, and what to do about it.

Naturally, there will be disagreements about the nature of a threat, and how to respond to it. No legislation can resolve that. But we invested enormous powers in single individuals, including unelected state and local health department directors, to unilaterally decide if and when people could leave their homes, attend church or school, and be allowed to not have their face covered. There was never clear scientific evidence that led to any of these measures, because science does not equal policy. As is well known, many countries handled infringements on personal liberties very differently—from the Chinese welding citizens in their homes, to Swedish lower schools never closing, to the CDC requiring masks on 2 year olds while European children largely went mask free.

If anyone has an opinion on the measures that were enacted during the pandemic—which basically is everyone—then it’s critical to understand and be aware of the legal framework that will enable future emergency laws. People can argue all they want about epidemiology and the like. But putting any of those ideas into action depends on whatever legal foundation is in place.

While the war in Ukraine and trans rights and other issues dominating the news are important, the implications of the Act that will ultimately be put forth by the ULC are enormously consequential. This very well may determine what rights you will and will not have during the next declared emergency, whatever and whenever that may be. It’s fairly astonishing that the Model Public-Health Emergency Authority Act is not part of the public conversation. The final text and vote are next month.