From Pandemic to Endemic: Legislative Oversight and Termination of Public Health Emergencies
April 7, 2022
Overview
As we enter the third year of COVID-19, we are seeing the transition from a pandemic to an endemic. With this shift comes the staged termination of public health emergency measures used to respond to COVID-19 and its variants. Unknown is how our existing legal framework will bring about the end of the pandemic measures consistent with appropriate oversight by legislative and executive branches. New Mexico provides one example of what this transition might look like.
“Reports that say something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout . . . history. . . it is the latter category that tend to be the difficult ones.” (Emphasis added)
Donald Rumsfeld, U.S. Secretary of Defense, Pentagon News Briefing, February 12, 2002.
The COVID-19 pandemic is a known unknown experience for most Americans. During the past two years, public health emergency orders (PHOs) authorized by state public health emergency laws enacted in the aftermath of 9/11 were met with mixed cooperation by the American people.
Yet, another known unknown has emerged. The timeline of the Great Influenza pandemic of 1918–1919 teaches that COVID-19 and its variants will eventually subside as a pandemic (occurring worldwide affecting many people) into an endemic (occurring regionally at a relatively constant rate of occurrence). As we enter the third year of the COVID-19, we are seeing the transition from a pandemic to an endemic.
With this shift comes the staged termination of public health emergency measures used to respond to COVID-19 and its variants. Unknown is how our existing legal framework will bring about the end of the pandemic consistent with appropriate oversight by legislative and executive branches. New Mexico provides a good case study to examine this issue.
The New Mexico Public Health Emergency Response Act (PHERA), N.M. Stat. Ann. § 12-10A.-1 et seq., is based in part on the Model State Emergency Health Powers Act (MSEHPA), which was finalized on December 21, 2001. The 2003 New Mexico Legislature enacted PHERA after a comprehensive public process. New Mexico implemented the Act extensively for the first time on March 11, 2020 when Governor Michelle Lujan Grisham issued Executive Order 2020-004 declaring a” state of public health emergency” (PHE) as COVID-19 began rapidly spreading on the Navajo Nation and across New Mexico.
New Mexico has a centralized public health system that vests comprehensive public health legal powers in the Governor and the New Mexico Department of Health. The Secretary of Health is appointed and serves at the pleasure of the Governor. PHERA assigns a leading role for the Secretary during a PHE to coordinate the State’s response and employ other extraordinary powers. For instance, the Secretary may utilize health care facilities and ration health care supplies as needed. See, e.g., N.M. Stat. Ann. §§ 12-10A-5, 6 (2022).
Extensive executive branch powers in PHEs contrast with those of the New Mexico Legislature. The legislature meets part-time (alternating annual 30- and 60-day regular legislative sessions), is the only state legislature that is unsalaried, and has a small year-round staff augmented during regular sessions by seasonal staff. These limitations underlying the New Mexico State Legislature beg the question: Who will provide legislative oversight in the likely event that a PHE is declared or ongoing when the Legislature is not in Session?
One legislative solution offered arose through Senate Bill 2 (SB 2), introduced on June 18, 2020 in the 2020 New Mexico 1st Special Session convened to address the COVID-19 Pandemic. This bill would amend PHERA by adding an automatic termination of a PHO 14 days after issuance, irrespective of the emergency status. The declaration cannot be renewed or amended unless the Legislature meets in a regular, special, or extraordinary session as provided by New Mexico’s Constitution. N.M. Const. art. IV, § 6. The legislature would have to adopt a new PHO by a Joint Resolution of both Houses. SB 2 did not receive a committee hearing and died on adjournment of the Special Session.
Another alternative is to create a permanent year-round Interim Health Committee that employs full-time staff educated in public health, including public health law. The Committee would be authorized to advise the legislature on the status of a PHE and recommend convening a Special Session or Extraordinary Session to address the PHE, if appropriate. House Bill 63, introduced on January 13, 2022 in the 2022 NM Regular Session, proposed this framework, but died when the legislature adjourned.
To date, nearly half of states have formally ended their COVID-19 emergency declarations. When may a formally-declared PHE officially be terminated via a state legislature? MSEPHA Sections 405(c) and (d) specifically address legislative terminations, but the New Mexico Legislature did not adopt this language when the PHERA was enacted. As a result, the termination of the PHE in New Mexico may occur either when (1) the Governor, after consultation with the Secretary, determines there is no longer a PHE, or (2) the PHO expires automatically after 30 days from issuance unless renewed by the Governor, also upon consultation with the Secretary. See N.M. Stat. Ann. § 12-10A-5(D), (E) (2022).
Of course, any state legislature, lawfully assembled, may always derail a PHE declaration by passage of specific legislation restricting the powers of the Governor and the executive branch to respond to the PHE. That option, however, has not been enacted in New Mexico or multiple other states to date. Given our system of federalism, it is expected that lawmakers at all levels of government will continue to address this divisive issue.
This guest post was written by Clifford M. Rees, JD, retired New Mexico Department of Health attorney (1981-2004) and former Practice Director for the Western Region Office of the Network for Public Health Law (2010-2017). He is available for comments at cmrees118@msn.com
The Network for Public Health Law (Network) provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult an attorney licensed to practice law in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of, and should not be attributed to, RWJF.