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COVID-19 and the Bound Executive

Tom Ginsburg, University of Chicago, and Mila Versteeg, University of Virginia

The COVID-19 pandemic has prompted a wide variety of governmental responses as it makes its way around the globe, and scholars have been tracking them from many different angles.

In a new paper, we argue that the pandemic response should modify our understanding about the exercise of emergency powers.  A conventional view is that emergency power is by necessity highly concentrated in the executive, who alone has the speed, information and decisiveness to respond to sudden crisis.  The design of emergency regimes purports to limit the discretion exercised, and to prevent abuse by executives.  Some scholars, following Carl Schmitt, go further to argue that law cannot constrain the political discretion that lies at the heart of emergency response. They argue that the executive is essentially unbound by legal constraints, and that this is a good thing.

COVID-19 offers an opportunity to test these propositions, which were typically developed in the context of national security crises such as war and invasions.  To examine whether the Schmittian case holds up, we have gathered our own original data on coronavirus responses around the world, complementing other efforts by the Centre for Civil and Political Rights, Oxford University, International IDEA, and scholars such as Ittai Bar Siman-Tov and Alejandro Cortés-Arbeláez.  Our data focuses on the legal bases of the response, distinguishing between constitutional and legislative invocations of emergency, and also examines the roles of courts, legislatures and subnational governments during the crisis.

Our initial findings, presented in the paper, cast serious doubt on theorists of an executive “unbound” during crisis.  We find a good deal of judicial oversight in a wide array of countries. Courts have played four different roles: (1) they have insisted on the procedural integrity of invocations of emergency; (2) they have engaged in substantive review of rights restrictions, balancing public health concerns, often using proportionality-based frameworks; (3) they have, in some cases, demanded that government take affirmative steps to combat the virus and its effects; and (4) they have supervised decisions about postponing elections.  Legislatures, too, have played a relatively active role in providing oversight and, in some cases, passing new coronavirus-specific. We also find that in both federal and unitary states, subnational governments have sometimes disagreed with central authorities, and have pushed back.   Taken together, the picture that emerges is of an executive has been decidedly constrained during the pandemic.

A pandemic is a particular kind of emergency, in which information and response capacity are widely dispersed throughout the country.  But we argue that our findings have general implications for emergency regimes. As recent collection edited by Geoffrey Sigalet, Grégoire Webber, and Rosalind Dixon argues, the metaphor of constitutional dialogue is a powerful one that has been deployed in a wide range of settings. Few would think to apply it to emergency situations, but we show that institutional dialogues among multiple governmental bodies have characterized the response to COVID-19.  In an emergency in which there is a whole range of possible responses, multiple institutions are likely to generate a response that reflects local preferences, is non-discriminatory and that is temporally limited than would an executive acting alone.  We thus argue that dialogic responses are to be celebrated in emergency rule, pushing back against the Schmittian claims. Instead of arguing that emergency rule provides a paradigm for ordinary governance, we show that the reverse is the case, and that checks and balances are effective and desirable. 

Suggested citation: Tom Ginsburg & Mila Versteeg, COVID-19 and the Bound Executive, Int’l J. Const. L. Blog, May 26, 2020, at: http://www.iconnectblog.com/2020/05/covid-19-and-the-bound-executive/

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Published on May 26, 2020
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