Objectives. To identify and categorize US state legislation introduced between January 1, 2021, and May 20, 2022, that addresses emergency health authority.

Methods. We adapted standard policy surveillance methods to collect and code state bills and enacted laws limiting or expanding the emergency public health authority of state and local officials and agencies.

Results. State legislators introduced 1531 bills addressing public health authority; 191 of those were enacted in 43 states and the District of Columbia, including 17 expanding and 65 contracting emergency authority, 163 regulating use, and 30 preempting local use of specific measures such as mask mandates.

Conclusions. State laws setting the scope and limits of emergency authority are crucial to effective public health response. These laws are changing in ways that threaten to reduce response capacity. Tracking changes in health law infrastructure is important for evaluating changes in health authority and ensuring that stakeholders recognize these changes.

Public Health Implications. The COVID-19 pandemic called for quick, decisive action to limit infections, and when the next outbreak hits, new laws limiting health authority will make such action even more difficult. (Am J Public Health. 2023;113(3):288–296. https://doi.org/10.2105/10.2105/AJPH.2022.307214)

In the US legal system, states have the primary responsibility for enacting pandemic control measures. State legislatures define the nature and extent of public health agency authority and the emergency powers of governors and mayors, which are crucial to public health preparedness and response. Executive agencies are the first responders to unexpected events, such as a new pathogen. Their capacity to obtain and interpret information and subsequently launch appropriate testing, vaccination, treatment, and nonpharmaceutical interventions provides the best chance of preventing a major outbreak. The ability of health officials to do this work depends in significant part on what the law requires or allows.

Flexible authority to manage epidemics and other emergencies was built into US public health law at least as far back as the first boards of health at the turn of the 19th century.1 From the legal point of view, public health administration has depended on 2 distinct features of the law: (1) grants of authority to officials typically included a catchall reference to “any other actions” the health officer deemed necessary in response to unanticipated health threats, and (2) courts tended to interpret this residual authority broadly and with deference.1,2 In modern times, mechanisms for declaring official emergencies and triggering broad powers were added to state (and federal) law. Thus, as COVID-19 struck, federal, state, and local officials were able to respond rapidly with sweeping emergency orders.3

Initially, courts upheld these measures, deferring to the judgments of health officials.3 As COVID-19 control measures grew more tendentious in politics and public opinion, fewer judges deferred, and a shifting Supreme Court majority adopted new doctrines of general administrative law that limit health and other administrative agencies to powers and measures expressly stated in law and applied First and Second Amendment protections more stringently.4 As courts examine health measures with less deference and interpret the law more narrowly, the ability of state and local officials to address health threats depends more than ever on the language of state health laws defining their powers.

This body of state public health law is changing. In the legislative sessions starting in January 2021, state legislators introduced more than 1500 bills to change the legal authority of state and local health agencies and executive officers. In our legal mapping research, we documented state bills that affected the nature or allocation of public health authority at the state and local levels and state laws limiting public health emergency authority from January 1, 2021, through May 20, 2022. Our results provide an initial look at the authority state and local officials will have—and the political headwinds they will face—as they manage major threats to public health in the future.

We adapted standard policy surveillance methods5 to support rapid collection and reporting of bill and enacted law data. Legal researchers defined the topical scope of the research and developed a coding scheme. A commercial bill-tracking firm engaged by the Association of State and Territorial Health Officials identified legislation covering January 1, 2021, to May 20, 2022, using proprietary methods. The Association of State and Territorial Health Officials screened identified bills and laws and transmitted them to the Center for Public Health Law Research collaborating team. Data, codebooks, and research protocols are available at lawatlas.org.

Bills Addressing Public Health Authority

We included bills if they set limits on authority to declare public health emergencies or issue emergency orders (“limits on health authority”), changed the agency or official responsible for an emergency public health response (“public health authority reallocation”), expanded the emergency authority of a public health agency or official (“public health authority expansions”), limited state or local enforcement of federal health mandates (“limits on federal laws”), regulated the deployment of specific response measures (“regulation of emergency measures”), or preempted local public health authority to enact emergency control measures (“preemption of emergency measures”). We organized each category of bills as a separate longitudinal data set.

We checked identified bills against a separate list compiled by collaborating attorneys from the Network for Public Health Law, who reviewed state legislative Web sites, news media reports, and personal communications to identify bills in the regions they serve. Six Center for Public Health Law Research attorneys individually assigned bills to topical data sets and coded the variables on the policy-tracking software MonQcle (Center for Public Health Law Research, Philadelphia, PA). We resolved ambiguous cases through further review and group discussion. We logged definitions and coding rules into research protocol notes shared among the team for cohesiveness. Supervising attorneys reviewed final coding.

Laws Limiting Public Health Authority

We created 1 longitudinal data set of enacted laws that limited public health authority. Researchers used search alerts from the Westlaw legal research platform and active keyword searches on openstates.org to verify initial research and identify missing laws. We used Westlaw to check for further amendments for each law in the data set. One researcher coded each record, and a supervising attorney reviewed the data set.

From the beginning of the 2021–2022 state legislative sessions to May 20, 2022, legislators introduced 1531 total bills to change the scope and allocation of emergency health authority generally or with respect to COVID-19 (Table 1). The most common type of bill regulated the use of specific control measures, such as vaccination, testing, and masks, followed by bills that limited the public health authority of a governor, state health official, or local health official. Bills frequently addressed multiple topics, so totals reported by category will not sum to the total number of bills. Interactive maps and tables containing state-level details—including bill text—about the legislation for each topic can be found on lawatlas.org.

Table

TABLE 1— Introduced and Enacted US State Legislation Addressing Public Health Authority by Topic: January 1, 2021–May 20, 2022

TABLE 1— Introduced and Enacted US State Legislation Addressing Public Health Authority by Topic: January 1, 2021–May 20, 2022

Topic Introduced Bills, No. Enacted Bills, % (No.)
Federal enforcement limits 27 18.5 (5)
Preemption 177 16.9 (30)
Authority expansion 102 16.7 (17)
Emergency measures regulation 1197 13.6 (163)
Authority limits 539 12.1 (65)
Authority reallocation 84 7.1 (6)
All bills 1531 12.5 (191)

Note: Because bills may address more than 1 topic, totals reported by topic will not sum to the total number of bills.

As of May 20, 2022, 191 of the 1531 bills were enacted into law in 43 states and the District of Columbia, including 7 via veto override. Of those, 554 failed (i.e., were voted down or expired at the end of the session), 7 remained vetoed, and 779 remained in consideration at the end of our observation period. States saw an average of 30 introduced bills, with a range of 3 (Delaware) to 113 (New York). States enacted an average of 4 laws, ranging from none in 7 states (DE, IL, MA, MI, MO, NM, and RI) to 13 in Virginia. In states that enacted a law, pass rates as a percentage of all bills introduced varied from 1% in Minnesota to 80% in North Dakota.

Laws Expanding Public Health Authority

Twelve states (CO, GA, IN, LA, MD, NJ, OR, PA, SC, VA, VT, and WV) passed 17 laws expanding emergency authority. Expansion measures included laws that enhanced the organizational independence of health agencies (Colorado House Bill 22-1352), expanded authority during the COVID-19 pandemic (Indiana House Bill 1001, Pennsylvania House Bill 1861), or created new emergency rule-making procedures (Louisiana Senate Bill 136). Three states both expanded and contracted emergency response options: Georgia authorized local health authorities to disseminate vaccination information to manage a disease outbreak (Georgia Senate Bill 46) but also barred state and local governments from requiring proof of COVID-19 vaccination (Georgia Senate Bill 345). Indiana authorized state health authorities to issue standing orders, prescriptions, or protocols for immunizations (Indiana House Bill 1001) but also prohibited the state from requiring a COVID-19 vaccine passport (Indiana House Bill 1405). New Jersey passed a law establishing a COVID-19 pandemic task force on health disparities (New Jersey Assembly Bill 4004), coded as an expansion, but also terminated the governor’s COVID-19 public health emergency and several executive orders (New Jersey Assembly Bill 5820).

Laws Limiting Emergency Authority

Twenty-five states enacted 65 laws that limited the emergency authority of governors, other state officials, or local health officials (Figure 1; Table A, available as a supplement to the online version of this article at http://www.ajph.org). Figure 1 shows the types of limitations and the officials subject to them. Most common were laws limiting the scope of orders, with 21 states enacting 54 such laws. Idaho, for example, enacted 4 laws that limited emergency authority to measures “essential to protect life or property from the occurrence or imminent threat of the state of [sic] disaster emergency threatening the safety of persons or property” (Idaho House Bill 393) and prohibited the governor and all other state and local officials from limiting “any rights guaranteed by the United States constitution or constitution of the state of Idaho, including but not limited to the right to peaceable assembly or free exercise of religion” (Idaho House Bill 391); prohibited the governor from altering or creating any provision of the Idaho Code during a disaster emergency (Idaho House Bill 392); and required that emergency orders “be narrowly focused without placing unnecessary restrictions on the ability for a person . . . to work, provide for their families, or otherwise contribute to the economy” (Idaho Senate Bill 1217).

Sixteen states enacted 20 laws that limited the issuance of emergency orders, for example by requiring that an executive order be submitted to a Legislative Council for review. In Montana, the law now states that after declaring a state of emergency, the governor “may not declare another state of emergency or disaster based on the same or substantially similar facts and circumstances without legislative approval” (Montana House Bill 230).

Fifteen states enacted 18 laws limiting the duration of emergencies. Limits averaged 33 days, ranging from 90 in Ohio (Ohio Senate Bill 22) to as few as 10 in Wyoming (for a stay-at-home order to limit the transmission of a contagious disease; Wyoming House Bill 127).

Eleven states enacted 16 laws addressing termination of emergency orders by the legislature or another entity. For example, Florida Senate Bill 2006 added a provision that allowed the legislature to terminate emergency orders by concurrent resolution, whereas Montana House Bill 121 allowed local health official orders to be terminated by county commissioners or other local elected officials. Kansas enacted Senate Bill 40, which limited gubernatorial orders by allowing local governments to supersede them with less strict rules.

Laws Reallocating Emergency Authority

We categorized a law as “reallocating” authority when it removed an emergency power from a governor or health official and gave it to the legislature or another official or agency. Six laws in 6 states reallocated authority. For example, Kansas Senate Bill 40 requires that county commissioners approve local health officer orders mandating the use of face masks, limiting gatherings, or restricting business operations.

Laws Limiting Federal Enforcement

Five states (ID, MT, SC, UT, and WY) enacted laws purporting to regulate the enforcement of federal public health laws or orders by state or local officials. In the US federal system, state officers are generally permitted, but not required, to enforce federal laws. These measures eliminate that discretion. For example, South Carolina House Bill 3126 provides that a federal vaccine mandate shall not be enforced unless a state or federal court holds it to be enforceable. Wyoming House Bill 1002 states that no public entity shall enforce any federal rule requiring an employer to mandate that employees receive a COVID-19 vaccination.

Laws Regulating Specific Measures Use

Forty-one states and the District of Columbia enacted 163 laws that addressed state executive or local authority to impose specific disease control measures, including mask mandates, vaccination requirements, and school or business closures (Figure 2). Some laws enhanced or otherwise supported authority to deploy these measures. For example, Virginia required the Department of Health to establish a volunteer program for eligible health care providers to administer the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) vaccinations (Virginia House Bill 2333 and Senate Bill 1445), and New York made it a crime to falsify SARS-CoV-2 vaccination records (New York Assembly Bill 8700 and Senate Bill 4516). Other laws restricted authority. Iowa prohibited school districts from adopting or enforcing face mask requirements and prohibited the mandatory disclosure of vaccination status (Iowa House File 847 and House File 889). Some states enacted both kinds of laws. More than half of these laws (57%)—55 of 95 restrictive measures and 38 of 68 expansive measures—applied exclusively to COVID-19, so they will not apply to other threats now or in the future (Table B, available as a supplement to the online version of this article at http://www.ajph.org).

Twelve states enacted 30 laws that preempted local authorities from implementing 1 or more specific health measures. Vaccine requirements were the most common targets, followed by mask mandates and limits on religious gatherings. Almost half (14) of these apply exclusively to COVID-19 (Table B).

Party Control

There was little partisan difference in the intensity of legislative activity, but there was a striking difference in outcome. The 15 states that saw the most bill introductions were fairly evenly divided between Republican and Democratic control of the legislature and governorship, but all except 1 (CT) of the states that enacted more than 1 restrictive public health measure bill had Republican control of the legislature (Figure 3; Table C, available as a supplement to the online version of this article at http://www.ajph.org).

Public health law reform is to be expected after a major shock. The terrorist attacks and severe acute respiratory syndrome outbreak early in this century were both followed by significant attention to laws governing emergency preparedness and response.6,7 Research demonstrates the high prevalence of emergency laws and the complexity of implementation networks they created.8 Public health lawyers have analyzed responses to the emergencies and developed the Model State Emergency Health Powers Act,6,9 which was subjected to robust public debate.10,11 More than 40 states adopted 1 or more of its provisions over the following decade.12 By contrast, legislation responding to COVID-19 has been highly politically partisan, rapid, and uninformed by careful and sustained research and analysis of the COVID-19 emergency response. In the first legislative session after COVID-19 hit, most states changed their law in some way.

The most frequently introduced and enacted laws addressed specific public health measures. These laws, more than half of which were specific to COVID-19, restrict measures that could reduce morbidity and mortality in the continuing COVID-19 pandemic; they reflect legislative interest in setting policy for COVID-19 without changing public health authority generally. Twenty-five states enacted laws limiting state or local officials’ authority to respond to public health emergencies (Table A). Laws that limit the scope and duration of emergency orders or that shift emergency authority from executives to legislatures are concerning because they impose arbitrary limits on the discretion of the officials charged with taking action.

Although the duration of COVID-19 measures strained common expectations of how long an emergency should last, the experience also suggests that state legislatures, many of which were not even in session, are not institutionally disposed or well suited to enacting emergency legislation or managing response during a health crisis. Similarly, some new laws were written, unintentionally or intentionally, in ways that may chill the actual use of powers and invite court challenges. Idaho’s new law, for example, will require health officials to be confident that emergency measures are essential to address an imminent threat and to be prepared for court challenges contending that the measures are not narrowly tailored enough. Laws like these pose a serious threat to the state’s practical ability to respond in a timely way to an emergency.

Contextualizing legislative activity quantitatively is difficult because the output of legislatures is not systematically tracked. On average, state legislators reportedly introduce more than 109 000 bills each session.13 On average, according to a commercial bill-tracking company, 20% of introduced bills are enacted, but state enactment rates vary from 5% to more than 60%.14 An analysis of the 2012–2014 state legislative sessions, using data from the same tracking firm we used, found 804 bills across 12 health law domains, including housing and chronic disease control and core public health powers. Of these, only 13 addressed emergency preparedness and response. Of the 804 bills, 242 were enacted into law, including 5 of the 13 dealing with emergency preparedness.15 These reports are consistent with the perception that the amount of public health emergency powers legislation was dramatically higher than usual in the 2021–2022 session.

Bills do not reflect actual levels of legislator or public interest in or concern about an issue. Any legislator can introduce a bill, allowing proposals that are best described as bizarre and that legislators do not give serious consideration. For example, New Hampshire House Bill 1027 sought to establish the crime of “undermining the legislative process by false claim of emergency” and accused President Biden of colluding with the Occupational Safety and Health Administration to bypass the legislative process under a false claim of an emergency. Several bills were introduced that allowed pharmacists and physicians to prescribe ivermectin and hydroxychloroquine for preventing COVID-19.

Historically, disputes over the division of authority in government are common. There is no correct division of power. Each entity has its strengths and weaknesses in terms of efficiency, accountability, and innovation. In practice, the allocation tends to be a matter of politics rather than rational, evidence-informed governance optimization.16,17

It is well established that in the United States, industry and conservative political forces have worked to limit the public health authority of liberal cities in relation to conservative state legislatures and to use state law to limit health regulation generally.1823 State legislatures’ widespread preemption of local health and welfare legislation is a well-documented problem,19,21 and research has suggested that preemption has harmful health effects.24 In the case of public health powers, organized efforts include a model emergency powers law written by the American Legislative Exchange Council. The American Legislative Exchange Council Emergency Power Limitation Act would subject all emergency measures to the most stringent constitutional standard (“narrowly tailored to serve a compelling state interest”) and set an automatic expiration date of as few as 7 days for executive orders.25 Our research team identified at least 26 bills limiting public health authority as identical to or based on the American Legislative Exchange Council model. The fact that new limits on authority have been concentrated in “red” states is worrisome in light of evidence that conservative state legislatures’ policy choices are already causing disparities in state life expectancy.26

Events in the courts have made the scope and language of state laws more important. Courts, including the Supreme Court, have increasingly adopted major questions and general nondelegation rules that require grants of authority to administrative agencies, including health departments, to be explicit and specific.27 Construing state and federal law according to these doctrines parallels the much older practice of narrowly interpreting state grants of authority to local governments, an approach that has limited local health authority in many states.28

COVID-19 revealed problems with public health capacity and professional culture in the United States,29 and there has long been a need for more systematic research on the relationship of public health law infrastructure, agency effectiveness, and health outcomes.30 COVID-19 produced considerable rapid research on specific health measures, but the empirical question of how various forms of authority affect outcomes is a matter of continuing importance in need of further, more rigorous study. Policy surveillance—the systematic, scientific tracking of laws of public health importance—provides data for evaluating changes in health authority.31 Tracking changes and proposed changes in health law also enables stakeholders to recognize these changes and helps supporters of effective public health to weigh in. Finally, scientific legal mapping of proposed and enacted legislation can help distinguish political bluster and fringe legal proposals from those that actually become law.

Our research period ended before the conclusion of the legislative session or special sessions in the 2021–2022 legislative period. Bills that have been categorized as pending or vetoed in our study could still be enacted into law, as could new bills introduced after May 20, 2022.

Conclusions

COVID-19 posed a daunting challenge to health agencies everywhere. The transmissibility and adaptability of SARS-CoV-2 in a closely linked world explain much of the failure to prevent a global pandemic, but there were mistakes of both under- and overreaction. The ideal combination and timing of nonpharmaceutical interventions, and the best approaches to achieve high levels of vaccination, likely vary by setting and will be difficult to determine or sustain. Careful assessment of health agency performance and sensible revision of law are indicated.

Given the politicization of public health work during COVID-19 and the social shock of the pandemic, rapid and substantial changes to public health authority seem to reflect the frustration and irritation of a painful experience rather than a well-considered and evidence-informed analysis of the authority that health agencies need and what factors—leadership, funding, and other resources—drive strong health agency performance. Although restrictions specific to COVID-19 may not directly limit action in future emergencies, new legislation rarely seems to address the nuanced challenges of applying legal authority to stop pandemic disease. Rather, these laws appear to legislate a particular political position disdainful of public health and indifferent to the long-term dictates of effective public health practice.

Public Health Implications

The COVID-19 pandemic called for quick and decisive action to limit initial infections and subsequently a sustained effort to reduce transmission via nonpharmaceutical interventions and, when available, vaccines. When the next outbreak hits, new laws limiting health department discretion will make deploying these measures even more difficult. Now is the time for those concerned with effective public health action to focus on the basic law defining the scope, distribution, and nature of health authority.

See also Parmet and Erwin, p. 267 , Wiley, p. 269 , Gostin, p. 272 , Hodge et al., p. 275 , and Parmet and Khalik, p. 280.

ACKNOWLEDGMENTS

Support for this research was provided by the Robert Wood Johnson Foundation (awards 77249 and 79045).

 Members of the following organizations provided assistance, guidance, or feedback in the research: ChangeLab Solutions, Network for Public Health Law, Public Health Law Center, Public Health Law Watch, the Association of State and Territorial Health Officials, and the Local Solutions Support Center. The authors thank Leslie Zellers for coordinating the collaborating teams. The authors thank Center for Public Health Law Research (CPHLR) staffers Adrienne Ghorashi and Lindsay Cloud, who provided guidance and assistance on this work, and Adam Herpolsheimer, Alexander Willhouse, Jonathan Larsen, Alexander Frazer, Caitlin Davie, DeAnna Baumle, Sterling Johnson, and Lindsey Gellar, who participated in building the data sets. The authors also thank Bethany Saxon and Hope Holroyd from CPHLR, who provided assistance with data visualization.

Note. The views expressed in this article do not necessarily reflect the views of the Robert Wood Johnson Foundation.

CONFLICTS OF INTEREST

The authors have no conflicts of interest to disclose.

HUMAN PARTICIPANT PROTECTION

No protocol approval was necessary because no human participants were involved in this study.

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Trends in US State Public Health Emergency Laws, 2021–2022

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Elizabeth Platt, JD, MA , Katie Moran-McCabe, JD , Amy Cook, JD , and Scott Burris, JD All authors are with the Center for Public Health Law Research, Temple University Beasley School of Law, Philadelphia, PA. “Trends in US State Public Health Emergency Laws, 2021–2022”, American Journal of Public Health 113, no. 3 (March 1, 2023): pp. 288-296.

https://doi.org/10.2105/AJPH.2022.307214

PMID: 36791354