Governors Slightly More Bound? A Critique of the Uniform Law Commission's Model Public-Health Emergency Authority Act

Abstract

In response to the boldest and most pervasive use of emergency powers by governors in United States history during the COVID-19 pandemic, the Uniform Law Commission has proposed the Model Public-Health Emergency Authority Act. The Act seeks to correct some of the excesses of the Covid emergency response, while at the same time shoring up governors’ authority to respond to the next public health emergency. This Article argues that, on the whole, the Act is a disappointment because it continues to allow governors to rule their states indefinitely, with few restrictions, during declared public health emergencies. The Act imposes some soft procedural requirements that any politically competent governor should be able to evade fairly easily. For states that have already enacted significant post-Covid emergency rule reform, or whose courts interpreted their emergency schemes during Covid to restrict gubernatorial authority, the Act would be a step backwards. For those states that have yet to re-assess their emergency regimes since Covid, however, and whose existing regimes grant their governors broad powers, adoption of the Act would likely be better than the status quo.

Keywords: health, public health, COVID-19, covid, emergency, executive order, law reform

JEL Classification: K30