IT’S TIME TO END THE PUBLIC HEALTH EMERGENCY DECLARATION BECAUSE THEY ARE NOW CONSISTENTLY MISUSING THEIR EMERGENCY AUTHORITY
The purpose of declaring a public health emergency is that it gives governors and health directors authority to do things that they normally can’t… allowing them to conduct interventions to help mitigate the public health crisis using authority that they don’t normally have.
The governor declared the current public health emergency on March 11, 2020. That declaration gave Governor Ducey broad emergency powers under ARS 26-303 and Director Christ sweeping public health powers under ARS 36-787.
In the first weeks of the pandemic, they used their emergency authority for mostly good things like the original stay at home order, a moratorium on evictions, enhanced public health surveillance, and operational and reporting directives to hospitals.
Once May, 2020 arrived, they resisted using their authority for good things. They refused to use their emergency authority to implement an enforceable statewide mask mandate even after the evidence was compelling that it was the most effective intervention that we had at the time. They also refused to do any meaningful enforcement of mitigation measures in bars, restaurants and nightclubs (except during the summer “pause”). The list goes on.
They even began using their authority for bad things, like preventing locals from putting in place mask mandates (they finally allowed that at the very end of June – but a revoked it again a couple of months ago). They are also prohibiting businesses from inquiring about a person’s vaccine status (EO 2021-09). They have been micromanaging the K-12 system in a variety of ways for harmful purposes.
Yesterday, they used their ARS 26-303 and ARS 36-787 emergency authority to prevent the universities and community colleges from implementing reasonable mitigation measures this fall (see E.O. 2021-15).
ASU had designed a mitigation plan for this fall that was thoughtful, calibrated and evidence based. The policy recognized the risk difference between vaccinated and unvaccinated students and managed those risks appropriately by requiring unvaccinated students to undergo periodic testing and to wear a mask on campus. Ducey & Christ’s Executive Order micromanages the universities and community colleges by dictating that they can’t have a policy that distinguishes between vaccinated and unvaccinated students.
Remember, the value of declaring a Public Health Emergency is that it allows them to conduct helpful interventions. So the question becomes, are Ducey and Christ using their emergency authority for anything helpful at this point?
I just scoured all the executive orders, and I’d say that the only helpful thing that Ducey and Christ are using their emergency authority for right now is to require COVID-19 surveillance reporting (e.g. COVID-19 case and hospital capacity reporting), which helps track the trajectory of the epidemic and provide hospital capacity data. The E.O.’s with those requirements have been extended several times during the pandemic (every 60 days). The latest extension is E.O. 2021-14, which extends the reporting requirements until the end of July.
However, the ADHS has existing non-emergency rulemaking authority that could have and should have used long ago to make COVID-19 a new reportable illness. Astonishingly, Director Christ has not yet made COVID-19 reportable (see the Communicable Disease Reporting Rules).
At this point, it is clear that Governor Ducey and Director Christ are far more interested in using their ARS 26-303 and ARS 36-787 public health emergency authority for harmful rather than helpful purposes. Yesterday’s executive order micromanaging the universities and community colleges and preventing them from implementing reasonable and calibrated plans for this fall clearly demonstrates that, from this point forward, they will only be using their authority to harm rather than help the response.
The only remaining helpful Order requires laboratories and doctors to report COVID-19 cases, something that they are accustomed to doing by now and would likely continue to do if they were to lift the emergency declaration. Additionally, it is nonfeasance on the part of Director Christ that she has not made COVID-19 illness reportable by now (15+ months into the public health emergency).
However, Governor Ducey & Director Christ will not be lifting the emergency declaration anytime soon because they are clearly enjoying the authority that the public health emergency declaration gives them to micromanage cities, counties, businesses, the K-12 system and now universities and community colleges.