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Breaking: Trump to declare COVID-19 a Stafford Act national emergency

Consider this a clean-up from Wednesday’s Oval Office speech, in which Donald Trump added to the confusion while effecting a more serious tone. At 3 pm ET today, Trump will hold a presser — or at least an avail — to further discuss the COVID-19 outbreak and the administration’s response to it:

What has changed in less than 48 hours? The need for a stronger executive-branch reaction as Congress debates over a coronavirus-response package, that’s what. Trump will invoke the 1988 Stafford Act to declare a national emergency, allowing federal agencies to direct aid dollars directly:

President Donald Trump plans to declare a national emergency on Friday over the coronavirus outbreak, invoking the Stafford Act to open the door to more federal aid for states and municipalities, according to two people familiar with the matter. …

An emergency declaration would allow a state to request a 75% federal cost-share for expenses that include emergency workers, medical tests, medical supplies, vaccinations, security for medical facilities, and more, according to a letter Democrats sent the president earlier this week.

Only a few emergency declarations for public health threats have been made since the 1960s, and only two have targeted disease outbreaks, when President Bill Clinton in 2000 declared emergencies in New York and New Jersey in response to the West Nile Virus.

Barack Obama never did this with the H1N1 outbreak, even though it caused tens of thousands of excess deaths at the time. His administration brought testing online more quickly but was also heavily criticized at the time for fumbling its public messaging. The global scope of H1N1 was not as bad as COVID-19 is now, however.

If people are unhappy that Trump hasn’t taken enough direct action in response to the crisis, they may get a lot more than they bargained for. The Stafford Act gives the executive branch a lot of latitude in dealing with emergencies, and its Title VII section gives a president near-plenary authority to create regulation to deal with the emergency.

Sec. 701. Rules and Regulations (42 U.S.C. 5201)

(a) Rules and Regulations

(1) The President may prescribe such rules and regulations as may be necessary and proper to carry out any of the provisions of this Act, and he may exercise any power or authority conferred on him by any section of this Act either directly or through such Federal agency or agencies as he may designate.

(2) Deadline for payment of assistance – Rules and regulations authorized by paragraph (1) shall provide that payment of any assistance under this Act to a State shall be completed within 60 days after the date of approval of such assistance.

(b) In furtherance of the purposes of this Act, the President or his delegate may accept and use bequests, gifts, or donations of service, money, or property, real, personal, or mixed, tangible, or intangible. All sums received under this subsection shall be deposited in a separate fund on the books of the Treasury and shall be available for expenditure upon the certification of the President or his delegate. At the request of the President or his delegate, the Secretary of the Treasury may invest and reinvest excess monies in the fund. Such investments shall be in public debt securities with maturities suitable for the needs of the fund and shall bear interest at rates determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities. The interest on such investments shall be credited to, and form a part of, the fund.

Generally speaking, this is a break-glass-in-case-of-emergency authority. Trump’s reluctance to use it until now was undoubtedly due to his desire to keep panic down. That was also the point of his Oval Office remarks, but since that hasn’t worked, Trump likely figures that the best way to manage this crisis now is to be seen to be managing it directly. If the panic already exists, then an exercise of executive authority has no real downside any longer.

The irony in this is that the belated switch to subsidiarity seems to be paying off. The development cycle on testing has been pushed forward significantly and states are focusing their efforts on specific issues of community spread. A Stafford emergency will allow Trump more flexibility on providing funding support for those efforts, along with an ability to cut red tape at the federal level. It’s a smart move for something that already has the nation as unsettled as it already is, but how well it will be used remains to be seen.

When Trump speaks at 3 pm ET, we’ll get a better sense of what he plans to do with the authority. We will also likely hear plenty about the updates on testing capabilities, which is the best news so far this week about the response to COVID-19.

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