Former AG McKenna: Federal emergency powers in ‘uncharted territory’

The powers held by the federal government during a national emergency are considerable, but state and local governments tend to have more control in the enforcement of orders.

“It’s a power that is implicit in the Public Health Service Act, which is the federal law that federal authorities draw upon to deal with a health emergency like the one we have right now,” Former Attorney General Rob McKenna told Dave Ross on Seattle’s Morning News. “And it can clearly be used to quarantine people who are arriving in our country by air or by driving, … even by ship, if they’re suspected of an infection, which is on a list of diseases set by executive order.”

It hasn’t been yet tried for stopping people from crossing state lines, as far as McKenna is aware.

“It’s kind of uncharted territory, but then this whole crisis is uncharted.”

The Public Health Service Act is a statutory act that empowers the federal government to deal with epidemics, McKenna explained, and it’s not a new act, as epidemics have been around for a long time.

“But as far as I can tell, this is the first time that the federal government, state governments have used their powers to the extent we’re seeing, you know, you actually order people to stay home, to tell them they can’t go to work, to shut down businesses,” he said. “In fact, one of the big controversies during the influenza pandemic that started back in 1918 is that governments didn’t take those steps.”

With a lack of measures in place, some cities saw thousands of influenza fatalities, where places that didn’t were spared because they had started to ban large gatherings.

The powers of local governments are also strong, and many believe that the federal government should not trump the states.

“I’ve noticed in looking at the powers of the Centers for Disease Control, for example, that their powers don’t seem to be as extensive,” McKenna said. “At least they don’t have the power to enforce their orders the way that the states do. And I think that’s by design in our system of government, where under federalism, we assign a great deal of responsibility for protecting public health and safety to state governments, and they, in return, delegate that to local governments.”

This explains why we saw individual counties and cities ordering their residents to stay home even before Governor Inslee issued the Stay Home, Stay Healthy order statewide.

“So we tend to push this power down to state and local levels,” McKenna said. “We don’t see as much of it within the country for the federal government. We haven’t seen those powers exercised. We see the federal government more focused, at least historically, on the international border, stopping people who are coming in from overseas.”

If we’re trying to limit interaction, there’s no place where people cluster more than in a jail.

The Department of Justice has now asked for expanded powers to address judicial proceedings. Federal and local courts are being disrupted. Jury trials have been postponed.

“Just about everything that can’t be done by telephone is being postponed at the state level and that had already been ordered by the federal courts when the states made their announcement,” McKenna said.

In terms of incarceration, people are being let out of jail and prosecutors are saying they won’t be arresting and jailing for minor crimes.

“Those are tough issues because you do worry about maintaining public safety, and you worry about letting the wrong people out,” he said. “At the same time, I suppose if I’m in jail and I’m not, you know, I’m not there for violent crime, I could argue that it’s cruel and unusual to keep me confined in a Petri dish where I might be more likely to catch COVID-19 and get sick.”