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Mississippi Executive Orders, the MEML and COVID-19: What the Governor May Do and Why

The public, at least in the Gulf South, is used to hearing terms such as “executive order” and “state of emergency.”  Yet what do those terms mean, where do they come from and why do they matter?  As the COVID-19 pandemic continues to ravage, and governors such as Mississippi Governor Tate Reeves attempt to address the crisis with executive orders, one may ask, what is the primary source of authority for these orders?

All of the United States have some sort of emergency management act or “EMA,”[1] a set of statutes that define what emergency powers certain state officials, for example the governor and state agencies, may exercise in case of declared emergency, be it human made or natural. In Mississippi, this state’s EMA is the Mississippi Emergency Management Law or “MEML,” Miss. Code Ann. §§ 33-15-1 through 33-15-53 (1972).

Under the MEML, upon a written gubernatorial executive order declaration of emergency, within the areas declared and for the time period specified, the governor may, amongst other powers:

  • Take direct control of the Mississippi Emergency Management Agency (“MEMA”) and assume direct operational control of state and local emergency operations.
  • Use MEMA as the governor’s agent for implementation of emergency measures, by means of MEMA orders called “Taskers.”
  • Suspend the operation of any state regulation.
  • Cooperate with the Federal Government and enter into assistance agreements and receive grants.
  • Coordinate with local emergency management organizations.
  • Commandeer local governments and officials.
  • Assume direct control of all services and facilities of existing officers and agencies of the state and its political subdivisions.
  • Delegate any authority vested in him or her under the MEML, and to provide for the sub-delegation of any such authority.
  • Transfer the direction, personnel or functions of state agencies, boards, commissions or units thereof for the purpose of performing or facilitating disaster or emergency services.
  • Commandeer or utilize any private property if necessary to cope with a disaster or emergency, provided that such private property so commandeered or utilized shall be paid for under terms and conditions agreed upon by the participating parties. Further, the owner of said property shall immediately be given a receipt for the said private property and said receipt shall serve as a valid claim against the Treasury of the State of Mississippi for the agreed upon market value of said property.
  • Perform and exercise such other functions, powers and duties as may be necessary to promote and secure the safety and protection of the civilian population in coping with a disaster or emergency.

Further Miss. Code Ann. § 33-15-21 (1972), grants certain strong liability protections for the state, any political subdivision thereof, its agencies and its agents, employees agents, in emergency operations, providing in part that “[n]either the state nor any political subdivision thereof, nor other agencies, nor, except in cases of willful misconduct, the agents, employees, or representatives of any of them engaged in any emergency management activities, while complying with or attempting to comply with this article or any rule or regulation promulgated pursuant to the provisions of this article, shall be liable for the death of or any injury to persons, or damage to property, as a result of such activity.” Id.

Importantly, just last year a unanimous Mississippi Supreme Court held that:

The [Mississippi Tort Claims Act] does not override the MEML’s grant of immunity applicable to emergency-management situations. The MEML applies to limited subject matter, while the MTCA covers a multitude of subjects and circumstances. In a qualifying emergency situation and with no willful misconduct, there is absolute governmental immunity under the MEML. In such circumstances and in the event of willful misconduct by a state agency, courts should proceed to determine whether there is immunity under the MTCA.

Mississippi Dep’t of Transportation v. Musgrove, 294 So. 3d 609, 617 (Miss. 2020).

In addition to granting the governor these extraordinary powers during a state of emergency, and shielding a broad range of state actors from liability, a gubernatorial declaration of emergency, if recognized by the President, can authorize federal monetary and other assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq.

In sum, during a declared state of emergency, the MEML gives the governor’s executive orders the effect of law.  Those orders must be followed by both the public and subordinate governmental entities and officials, who disregard them at their respective peril.

[1] The acronym “EMA” is also sometimes used interchangeably to mean “emergency management agency,” such as FEMA or MEMA.