It is often said that when a country faces a great emergency, only the executive ruler can properly respond to the crisis; and to do so effectively, the executive must not be constrained by other branches of government or by the normal rule of law. Carl Schmitt took this as proving the failure of liberal legalism--the claim that political power could be limited by a system of checks and balances and by the rule of law. Such limits on power might work in ordinary times but not in times of crisis, which creates a "state of exception." In a crisis, we see who is truly sovereign, because "sovereign is he who decides on the state of exception." Schmitt was a German Nazi, and he thought that his view of politics was confirmed by the fall of the Weimar Republic and the rise of Adolf Hitler to dictatorial rule during the crisis of the early 1930s.
Recently, some legal scholars have defended this Schmittian view of sovereign executive power as applied to the American presidency. Eric Posner and Adrian Vermeule--in Terror in the Balance (2007) and in The Executive Unbound: After the Madisonian Republic (2010)--have argued that the Madisonian conception of the presidency as constrained by a legal system of checks and balances has been replaced by a Schmittian conception of the presidency as unconstrained by law, particularly in times of emergency.
If this were true, then we would expect that since the COVID-19 pandemic has become a global emergency, we should see that the governmental responses to the pandemic have allowed executive rulers to govern without any constraints by legislatures, courts, or the general rule of law. And, indeed, it has been said that the governmentally mandated lockdowns have created a crisis for the liberal constitutional democracies because the crisis favors the growing power of populist authoritarian rulers and the decay of democratic norms.
In March and early April, when the pandemic lockdowns began, the New York Times published articles with disturbing titles about the pandemic's threat to democracy. One was "For Autocrats and Others, Coronavirus is a Chance to Grab Even More Power." Another was "The Virus Comes for Democracy." When Hungary's Parliament approved legislation giving populist authoritarian Prime Minister Viktor Orban dictatorial powers to rule by decree in an endless state of emergency, many publications had headlines declaring "The End of Democracy."
Now that we have had over nine months of experience with the pandemic, we can begin to examine the historical record to see if it confirms the Schmittian view and denies the Madisonian view. Tom Ginsburg and Mila Versteeg have recently collected the data for 106 countries--the evidence for how their governments have handled the pandemic--and they conclude that the data largely support the Madisonian view over the Schmittian view: although in some countries their pandemic governance has been turned over to authoritarian executive governance, in most countries this has not been the case, because the power of the executive has been checked by the legislature, the courts, and subnational governments (Ginsburg and Versteeg 2020).
This sustains one of my main arguments on this blog--that the evolutionary progress in advancing the Lockean Liberal Enlightenment cannot be reversed by any move towards illiberal authoritarianism. We see here that despite its many recent critics, Francis Fukuyama's announcement in 1989 of the "end of history"--that liberal capitalist democracy has emerged as the best social order for satisfying human desires--is correct.
The coronavirus pandemic does remind us, however, of one fundamental problem for liberal constitutionalism. On the one hand, liberal constitutionalism is designed to limit the powers of government so that no ruler has the arbitrary absolute power that could deprive us of those individual liberties that a liberal constitution should secure. On the other hand, in a time of national emergency, we might allow the suspension of our constitutional rights so that a powerful executive ruler has a free hand to do whatever is necessary to save the country.
That's what we have seen over the past nine months. In response to the pandemic emergency, democratic governments around the world have violated the individual rights that citizens normally expect to be secure. Governments acting through the decrees of chief executives have mandated stay-at-home orders, the cessation of religious gatherings, closing schools, closing businesses, restricted travel, and curfews enforced by police and the military.
We must ask: In times of emergency, must the ruling executive have the prerogative powers of a dictator acting outside the law? Or is it possible in a constitutional democracy to allow some rulers to exercise emergency powers while constraining those powers in ways that preserve constitutional rights? (In my Political Questions [4th ed., pp. 254-62], I have pondered those questions in my account of John Locke's teaching about executive prerogative as applied to Abraham Lincoln's emergency powers in the Civil War.)
Ginsburg and Versteeg think that most democracies in the pandemic crisis have shown how the exercise of emergency powers can be limited by a constitutional system of checks and balances under the rule of law.
THE LEGAL GROUNDS FOR EMERGENCY POWERS
The legal grounds for emergency powers fall under three broad categories: constitutional authorization, statutory authorization, and extra-legal action.
Constitutional authorization. Over 90 percent of all the constitutions in force today contain provisions for declaring a state of emergency (Bjornskov and Voigt 2018). Such a declaration allows the government--usually the chief executive--to rule by decree and to suspend individual rights.
Emergency powers can be used to overturn democracy and establish a dictatorship. For example, after the Reichstag Fire in 1933--the burning of the building where the German parliament sat--Chancellor Adolf Hitler charged that this was part of a communist revolution to overthrow the government. In response to this emergency, the Reichstag Fire Decree issued by the President and the Enabling Act passed by parliament suspended many individual rights--including habeas corpus--and allowed Hitler to make laws on his own without parliamentary consent. So Hitler became the permanent dictator.
To prevent this abuse of emergency powers by the executive ruler, most constitutions with emergency provisions have some checks and balances. Most constitutions specify the necessary conditions for a state of emergency--such as war, threats to internal security, and national disaster. In many constitutions, the executive head of state has the right to declare a state of emergency; but in some the legislature must declare the emergency. In many constitutions, the declaration of emergency by the executive must be approved by the legislature. Once declared, a state of emergency usually has a set time period, and any extension beyond that set end requires legislative approval. In most cases, the constitution allows for the suspension of rights during the emergency; but in some cases, certain rights are protected from suspension. In many cases, the constitution cannot be amended during the emergency; and all decrees issued during the emergency become invalid after the emergency is ended.
Remarkably, while most constitutions around the world have some provisions for declaring an emergency, Ginsburg and Versteeg report that only 43% of those countries with a constitutional emergency regime have actually declared a state of emergency in response to the coronavirus pandemic.
The U.S. Constitution does not have any explicit provisions for extraordinary powers in an emergency. But there are some specific powers that can be used in an emergency. The most obvious example is the suspension of the writ of habeas corpus: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Art. I, sec. 9, cl. 2). The specified conditions are "rebellion or invasion." The specified end is "public safety." The formal suspension of the writ has occurred only once in American history--when Abraham Lincoln suspended it in 1861 at the beginning of the Civil War, followed by a congressional statute in 1862 suspending the writ.
Law professor Michael Dorf (Cornell University) has argued that President Trump could have used this power to support a national COVID-19 lockdown: Trump could have suspended the writ of habeas corpus in response to the "invasion" of the U.S. by the coronavirus.
Statutory authorization. In the United States, the emergency powers of both the national government and the state governments come mostly from statutory authorization. Since 1976, when the U.S. Congress passed the National Emergencies Act, presidents have declared over 60 states of emergency, and at least 30 of these are still in effect (Thronson 2013). These states of emergency confer on the president vast powers for violating individual rights--such as seizing control of the nation's communications infrastructure, mobilizing military forces, and suspending the writ of habeas corpus. Although the National Emergencies Act requires Congress to vote every six months on whether a declared national emergency should continue, Congress has done this only once. President Trump has declared a state of emergency in response to the coronavirus pandemic.
In the United States, most of the emergency response to the pandemic has come from state governors acting through state laws that allow governors to assume broad emergency powers after declaring a state of emergency. This is also part of the "police power" of the state and local governments, which includes the power of acting to protect the public health.
Extra-Legal Action. In at least ten countries--China, Cuba, Cameroon, Belarus, Saudi Arabia, Sudan, Cambodia, Rwanda, Laos, and Tanzania--the pandemic response was entirely based on executive action, with no clear legal basis. Notably, these are all authoritarian regimes. There do not seem to be any examples in the democratic regimes of purely extra-legal action in response to the pandemic. Moreover, in most of the democratic countries, the pandemic orders of the executive rulers have been constrained by checks and balances.
CHECKS AND BALANCES
In most of the democracies, the use of emergency powers by executives has been limited by judicial oversight, legislative oversight, and subnational constraints.
Judicial oversight. In many countries, the courts have intervened to ensure that procedural requirements for emergency powers are followed. Sometimes the courts have enforced the constitutional requirements for emergency declarations and extensions of those declarations to be authorized by the legislature. In Kosovo, for example, the Constitutional Court ordered that executive decrees for a pandemic lockdown that would violate individual rights required legislative approval. In Israel, when the Prime Minister ordered the use of cellphone data to track infected people, the Supreme Court ruled that this could be done only with legislative authorization.
The pandemic lockdowns have violated or limited many fundamental rights--such as the freedom of movement and assembly, the freedom of religious worship, the right to work, and the right to property. In many countries, the courts have made judgments about the proper balancing of these substantive rights against the need for protecting the public health. The courts have invoked a rule of proportionality, by which the government must choose the least restrictive violations of fundamental rights necessary for advancing the public health. So, for example, the German Constitutional Court has ruled that the government cannot deny the freedom of assembly or the freedom of worship if people are gathering in ways that practice the proper social distancing. Similarly, in the U.S., a federal court held that Kentucky could not prohibit religious gatherings where social distancing measures were being taken.
Legislative oversight. In many countries, the pandemic response by the government has required legislative approval. In some countries, the legislature has set up special committees to oversee the government's actions. In most of the countries that drafted new legislation for the pandemic response, the legislation is only temporary--when the time expires, renewal requires legislative approval. The United Kingdom's COVID-19 statute grants special executive powers for only a 21-day period.
Subnational constraints. In federal states--like the United States, Germany, and Brazil--subnational units of government have adopted their own pandemic responses that often differ from the national policies. In the U.S., 43 of the state governors have adopted lockdown orders. And while President Trump once claimed that he had absolute authority over pandemic policies, the governors have disregarded that claim. And, in fact, Trump has had to concede that the state governors act on their own.
DEMOCRAC Y SURVIVES THE PANDEMIC
Some authoritarian regimes have used the coronavirus pandemic as a pretext for expanding their dictatorial powers. And some vulnerable democracies have shown some erosion in their democratic norms. The best example of the latter is Hungary, where Parliament has passed a law allowing Viktor Orban to rule by executive decree for the indefinite future.
But generally speaking the fear that the global pandemic would force a strengthening of authoritarian executive power and a weakening of democratic institutions around the world has proven unjustified. Most of the democratic regimes have found ways to grant some temporary emergency powers to executive rulers while constraining those powers through checks and balances and the rule of law.
This vindicates the Madisonian conception of limited executive power in a democratic republic, and denies the Schmittian conception of the sovereign executive as unbound by any legal constraints.
That this is true for the United States has become even clearer in recent weeks as the lockdowns ordered by the governors in some of the states have been challenged in federal courts as unconstitutional. In my next post, I will write about one of these cases in Pennsylvania.
Arnhart, Larry. 2015. Political Questions: Political Philosophy from Plato to Pinker. 4th Edition. Long Grove, IL: Waveland Press.
Bjornskov, Christian, and Stefan Voigt. 2018. "The Architecture of Emergency Constitutions." International Journal of Constitutional Law 16:101-127.
Ginsburg, Tom, and Mila Versteeg. 2020. "The Bound Executive: Emergency Powers During the Pandemic." Unpublished manuscript.
Posner, Eric, and Adrian Vermeule. 2007. Terror in the Balance: Security, Liberty, and the Court. Oxford: Oxford University Press.
Posner, Eric, and Addrian Vermeule. 2010. The Executive Unbound: After the Madisonian Republic. Oxford: Oxford University Press.
Thronson, Patrick. 2013. "Toward Comprehensive Reform of America's Emergency Law Regime." University of Michigan Journal of Law Reform 46: 737-787.