The bound executive: Emergency powers during the pandemic

Abstract

Emergency governance, we are often told, is executive governance. Only the executive has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints. This article interrogates these propositions using evidence from how countries responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in constraining national executives. Courts have insisted on procedural integrity of invocations of emergency, engaged in substantive review of rights restrictions, and in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have played a role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the response. Taken together, these findings suggest that, during COVID, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive. This article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights may be ill-suited to other kinds of emergencies, such as a pandemic.

This time is different?—on the use of emergency measures during the corona pandemic

“…In a paper entitled "The Bound Executive: Emergency Powers during the Pandemic", Ginsburg and Versteeg (2021) argue that legislatures, courts, and subnational government units have played an important role in constraining national executives and that the claim of executive overreach might, therefore, be overblown. It is definitely true that in many countries, these actors have behaved as veto players who have monitored the executive and also constrained it somehow.…”

Women, work, and families during the COVID‐19 pandemic: Examining the effects of COVID policies and looking to the future

“…In fact, it is important to consider that many COVID‐related policies and measures were not only unhelpful to marginalized groups of women in a way that was an accident or an oversight in a time of crisis, but intentionally discriminatory in a way that preyed upon nationalistic fears about safety in a time of crisis (Devakumar et al., 2020 ). In times of crisis, governments have much more public support to use emergency powers to address tangential issues in the name of national security, taking latitude to bypass traditional legislative mechanisms (Ginsburg & Versteeg, 2021 ; Paixao & Benvindo, 2020 ). In the United States, for example, President Trump used public concern around the spread of the COVID virus to enact new border and immigration restrictions in the name of public health (Presidential Action, April 22, 2020).…”

Mapping the constitutional terrain of vulnerability in the COVID pandemic

“…18 This second, exceptional framework for limiting fundamental rights remains unused in Croatia's pandemic response. Instead, the legislature and the executive applied the regular route, 19 acting as if the pandemic did not involve a state of exception of any kind. The approach chosen meant that the exceptionality of human rights restrictions required by the pandemic measures continued to be a matter of dispute.…”

“…19 According to Gardašević, this meant that Croatia had opted for a "legislative" rather than a "constitutional" approach to the pandemic.Gardašević, Business as Unusual, 100-104. 20 Decision of the Constitutional Court of the Republic of Croatia in case no.…”