Is president's proclamation formality, or institution of Obama martial law?
By Drew Zahn
President Obama announced today that he has declared a "national emergency" over the H1N1 virus, a phrase with an ominous sound, but with little explanation offered by most of the news media.
The Associated Press, for example, merely stated that the declaration removes "bureaucratic roadblocks" and enables officials to "bypass federal rules." Other news outlets were even vaguer, saying the declaration waived federal requirements, but not saying what those requirements govern.
In the void of information, Internet rumors were quick to flame, centering on concerns over how the Obama administration might use the declared emergency to suddenly expand government power.
"Obama just declared H1N1 a national emergency," wrote a reader in an e-mail, "Here we go with martial law."
An article by Kurt Nimmo of InfoWars took the worry a step further, wondering if the White House's declaration engaged certain measures of the National Emergencies Act:
"In the weeks ahead," Nimmo writes, "we may witness a move toward martial law, forced vaccination and internment of those who refuse."
But even if there really is a plot to manipulate the H1N1 virus scare into enforcing a sweeping expansion of federal power, today's "national emergency" falls far short of martial law.
In fact, the laws enacted by the president's proclamation do little more than clear administrative hurdles for quicker processing of Medicare payments, and the very provisions of the National Emergencies Act that the president cited in his proclamation actually limit the power his administration can take.
I, Barack Obama, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act … do hereby find and proclaim that, given that the rapid increase in illness across the nation may overburden health care resources and that the temporary waiver of certain standard federal requirements may be warranted in order to enable U.S. health care facilities to implement emergency operations plans, the 2009 H1N1 influenza pandemic in the United States constitutes a national emergency.
Section 201 of the National Emergencies Act, however, simply requires the president to inform Congress in writing when a national emergency is declared – which he did today, after signing the declaration last night.
Section 301 forbids the president from taking up any powers of the National Emergencies Act save those he lists in the proclamation of emergency, requiring him to "specify the provisions of law under which he proposes that he, or other officers will act."
And what powers did Obama specify?
"I hereby declare," the proclamation states, "that the secretary [of Health and Human Services] may exercise the authority under section 1135 of the [Social Security Act]."
Section 1135, in turn, allows the Centers for Medicare & Medicaid Services, or CMS, to review on a case-by-case basis applications from health care providers who wish certain restrictions be waived.
According to an explanation prepared by the Association of State and Territorial Health Officials, those restrictions that can be waived include:
- Certification requirements for some doctors to be paid by Medicare, Medicaid and SCHIP programs
- Pre-approval requirements for some services
- Requirements that doctors be licensed in the same state they're practicing in order to get federal payments
- Sanctions against moving patients to alternate facilities
- A handful of other requirements governing how medical providers are paid.
In fact, the most ominous provision of a Section 1135 waiver may be alterations to HIPAA privacy regulations.
The U.S. Department of Health & Human Services explains that under a declared emergency, facilities granted a Section 1135 waiver no longer need to obtain a patient's agreement to speak with family members or friends involved in the patient's care, no longer need to distribute a notice of their privacy practices and no longer need to honor the patient's right to request privacy restrictions or confidential communications.
"For example," an HHS document on HIPAA explains, "an individual may request that her health care provider call her at her office, rather than her home. A health care provider must accommodate an individual's reasonable request for such confidential communications."
With a Section 1135 waiver granted by the CMS in a declared emergency, however, the provider need not accommodate the request in the example of calling the patient at her office.
President Obama justified the national emergency proclamation with the following words:
By rapidly identifying the virus, implementing public health measures, providing guidance for health professionals and the general public, and developing an effective vaccine, we have taken proactive steps to reduce the impact of the pandemic and protect the health of our citizens. As a nation, we have prepared at all levels of government, and as individuals and communities, taking unprecedented steps to counter the emerging pandemic.
Nevertheless, the 2009 H1N1 pandemic continues to evolve. The rates of illness continue to rise rapidly within many communities across the nation, and the potential exists for the pandemic to overburden health care resources in some localities.
Thus, in recognition of the continuing progression of the pandemic, and in further preparation as a nation, we are taking additional steps to facilitate our response.