Nations and jurisdictions across the world have responded to the coronavirus pandemic by varying means. At the Law Library of Congress we have written extensively about this topic, keeping readers updated as events continue to unfold. Most recently, Law Library staff analyzed state and federal executive actions that have been taken across the U.S. related to the pandemic, and published the findings in a report.
The report begins by outlining the structure of federal regulatory law, being the rules and regulations written and enforced by executive agencies. Under typical circumstances, federal rulemaking can take a significant amount of time as it involves a notice-and-comment period, where members of the public have an opportunity to voice their opinions on the rule, offering support in favor of or against the proposed rule.
One exception to this process, however, is available under emergency circumstances. To avoid the notice-and-comment period, an agency must demonstrate that it would be contrary to the public interest to follow the normal procedure. This emergency exception was invoked by multiple federal agencies on topics ranging from the Department of Education’s suspending interest on student loans held by federal government, to the Small Business Administration’s providing loans to businesses impacted by the pandemic, to the Department of Labor’s implementing a new temporary rule on family and medical leave.
Agencies’ justifications for expediting standard regulatory procedures can be found in the Federal Register, the official journal of the federal government. The Department of Labor’s explanation for avoiding the notice-and-comment period under one rule provides:
The COVID-19 pandemic has escalated at a rapid pace and scale, leaving American families with difficult choices in balancing work, child care, and the need to seek medical attention for illness caused by the virus. To avoid economic harm to American families facing these conditions, a decision to undertake notice and comment rulemaking would likely delay final action on this matter by weeks or months, and would, therefore, complicate and likely preclude the Department from successfully exercising the authority. . . . Moreover, such delay would be counter to one of the [Families First Coronavirus Response Act’s] main purposes in establishing paid leave: enabling employees to leave the workplace now to help prevent the spread of COVID-19.
The Law Library’s report also discusses state government actions in response to the pandemic. While the analysis of state laws and regulations on this topic is not exhaustive, it provides examples of how governors and state legislatures across the U.S. have used their emergency powers in light of the pandemic.
If you would like to learn more about this topic, consider registering for our upcoming webinar on tracing federal regulations on October 15. Additionally, to learn more about government actions related to the coronavirus outside the U.S., you may be interested in attending our webinar “Worlds Apart: Legal Responses to COVID-19 in New Zealand and Sweden” on September 24.