Public Health State of Emergency: Executive Order by the Governor Declaring a Public Health State of Emergency

JurisdictionGeorgia,United States
Publication year2020
CitationVol. 37 No. 1

PUBLIC HEALTH STATE OF EMERGENCY: Executive Order by the Governor Declaring a Public Health State of Emergency

Rebecca Hu
Georgia State University College of Law, mhu4@student.gsu.edu

Ellen Y. Min
Georgia State University College of Law, emin2@student.gsu.edu

PUBLIC HEALTH STATE OF EMERGENCY


Executive Order by the Governor Declaring a Public Health State of Emergency

Code Sections: O.C.G.A. §§ 38-3-3, -51

Executive Order: Ga. Exec. Order No. 03.14.20.01

Effective Date: March 14, 2020

Summary: The Executive Order primarily functions to enumerate the Governor's emergency powers during a Public Health State of Emergency. The Executive Order allows for the Governor to assist health and emergency management officials by deploying available resources for the mitigation and treatment of COVID-19 within Georgia.

Introduction

in late 2019, a novel coronavirus caused a significant outbreak of respiratory disease now known as COVID-19. The World Health Organization (WHO) coined the official name of COVID-19, "CO" standing for corona, "VI" for virus, and "D" for disease.1 On March 11, 2020, the WHO characterized the disease as a pandemic because the spread of COVID-19 created an unprecedented global health crisis.2 Although the United States has faced pandemics before—most recently the 2009 H1N1 Swine Flu—the COVID-19 outbreak resembles the deadly 1918 Spanish Flu in both its unforeseeability

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and its novelty.3 A novel virus is a particular strain of virus that has not been previously identified.4 Compared to other strains of coronavirus, like the 2003 Severe Acute Respiratory Syndrome (SARS) and the 2012 Middle East Respiratory Syndrome (mERS), the COVID-19 strain likely spreads more easily because individuals lack immunity, leading to more community spread.5

Given the rapid spread of COVID-19 and the lack of availability of a vaccine, the virus has drastically impacted the world in all aspects of life—potentially changing the way individuals live permanently. Telecommunications have become the norm for everyday living by replacing the need for in-person interactions—both in the social and professional contexts.6 Events across the globe, including the Summer Olympics, have been delayed or canceled.7 To combat the spread of COVID-19, governments all around the world have enacted special powers. Specifically, on March 13, 2020, President Donald Trump (R) declared a national emergency in the United States beginning March 1, 2020. A day later, on March 14, Georgia Governor Brian Kemp (R) declared a Public Health State of Emergency for the state of Georgia.8 Although these declarations enacted temporary measures, the effects of these measures may outlast the duration of the Public Health State of Emergency.

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Background

Georgia Governor's Authority to Declare a State of Emergency

Georgia law authorizes the Governor to declare a State of Emergency when a sufficiently severe threat exists to "warrant extraordinary action by the state."9 Further, Code section 38-3-51 authorizes the Governor to declare a Public Health State of Emergency, allowing him to exercise additional powers enumerated in the statute.10 Under subsection (a), the Governor "may declare that a state of emergency . . . exists" in the event of a "public health emergency."11 Furthermore, subsection (a) establishes the procedures required as a condition precedent to the declaration of a Public Health State of Emergency.12 Subsection (a) requires the Governor to call a special session of the general assembly when declaring a State of Emergency.13 Once called, the general assembly convenes in a special session on the "second day following" the Governor's declaration to either "concur[] with or terminate[]" the Governor's action.14 Subsection (a) also outlines the basic mechanics of a Public Health State of Emergency.15 A Pubic Health State of Emergency in Georgia cannot extend beyond thirty days unless renewed by the Governor, but the Governor may renew the declaration until finding

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that the threat has passed.16 Though this section grants the Governor broad authority, the general assembly can act to limit the Governor's power by voting to terminate the Public Health State of Emergency declaration by concurrent resolution.17

Subsection (b) of Code section 38-3-51 governs the effects of a Public Health State of Emergency once declared.18 Such a declaration by the Governor will "activate the emergency and disaster response and recovery aspects of the state and local emergency or disaster plans."19 Subsection (b) further provides that a "declaration of a [S]tate of [E]mergency . . . shall" authorize the "use or distribution of any supplies, equipment . . . materials[,] and facilities" made pursuant to laws relating to emergencies or disasters.20

Subsections (c) and (d) jointly enumerate the powers conferred on the Governor during a State of Emergency. 21 Specifically, the Governor may:

(c)(1) [E]nforce all laws . . . relating to emergency management and assume direct operational control of all civil forces and helpers in the state;
(c)(2) [S]eize, take for temporary use, or condemn
property for the protection of the public . . .
. . .
(d)(1) Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with any statute . . . would . . . delay necessary action in coping with the emergency . . .
(d)(2) Utilize all available resources of the state government . . . as reasonably necessary to cope with the emergency . . .

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(d)(3) Transfer the direction, personnel, or functions of state departments and agencies . . . for the purpose of . . . facilitating emergency services;
(d)(4) Commandeer or utilize any private property if he finds this necessary to cope with the emergency . . . .22

Importantly, the Governor has additional powers during a Public Health State of Emergency. Under subsection (d)(4.1), the Governor can compel healthcare facilities to provide services when the Governor deems such services reasonable and necessary.23 The Governor may also compel the use of such healthcare facilities for emergency response.24 The use of facilities can include the power to transfer the management and supervision of healthcare facilities to the Department of Public Health for an unlimited period of time during the duration of the Public Health State of Emergency.25 Additionally, the Governor may implement a mandatory vaccination or quarantine program.26

During a Public Health State of Emergency, the Governor has the authority to direct the Department of Public Health to coordinate all matters pertaining to the response of the state to a State of Emergency; this subsection (i) grants the Department of Public Health the power to:

(A) Plan[] and execut[e] public health emergency assessments, mitigation, preparedness response, and recovery for the state;
(B) Coordinat[e] public health emergency responses between state and local authorities;

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(C) Collaborate] with appropriate federal government authorities, elected officials of other states, private organizations, or private sector companies;
(D) Coordinat[e] recovery operations and mitigation initiatives subsequent to public health emergencies;
(E) Organiz[e] public information activities regarding state public health emergency response operations; and
(F) Provid[e] for special identification for public health personnel involved in a public health emergency.27

A final catchall provision grants the Governor broad authority to "perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection" of the population.28 The final subsection—an immunity clause—stipulates that individuals who act in accordance with the Governor's Emergency Order will not be held liable to another in any action seeking legal or equitable relief.29

Governor Brian Kemp Declares a Public Health State of Emergency

On March 14, 2020, Governor Brian Kemp (R) declared Georgia's first ever Public Health State of Emergency to combat the outbreak of COVID-19.30 Governor Kemp found that a severe public health threat existed when officials identified sixty-four cases of COVID-19 in Georgia.31 In his press release addressing the Public Health State of Emergency, Governor Kemp highlighted that "[t]his declaration [would] greatly assist health and emergency management officials across Georgia by deploying all available resources for the mitigation and treatment of COVID-19" and emphasized that "Georgians need to incorporate social distancing into their everyday lives."32

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Following the declaration of the Public Health State of Emergency, commercial vehicles were allowed to forgo normal weight, height, and length restrictions to assist in transportation of necessary supplies.33 Further, the declaration granted the Georgia Composite Medical Board and the Georgia Board of Nursing the authority to grant temporary licenses to professionals to "assist with the needs of this Public Health State of Emergency," provided those professionals were in good standing with the governing board of another state.34

Analysis

On June 29, 2020, Governor Brian Kemp (R) issued two Executive Orders extending Georgia's Public Health State of Emergency.35 Executive Order 06.29.2020.01 extended the Public Health State of Emergency through August 11, 2020, and Executive Order 06.29.2020.02 required continued social distancing for certain types of businesses and banned large gatherings of more than fifty people, unless six feet of space remained between each person.36 The state government "strongly encouraged" the use of face masks, though not

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requiring their use.37 Under Executive Order 06.29.2020.02, the following types of businesses and establishments were required to enforce preventive practices, including social distancing: (1) gyms and fitness...

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