The Bound Executive? Revisiting Posner’s Theory of Emergency Governance in Light of COVID-19
Emergency governance, we are often told, is executive governance. Only the executive branch has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Referring to the classic theorist of emergency rule, Eric Posner and Adrian Vermeule famously described 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 around the world have responded to the 2020 global pandemic. It argues that, contrary to this conventional wisdom, courts, legislatures and subnational governments have played important roles in constraining national executives.