The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by the publics in many countries, some scholars and activists have raised the alarm that these might lead to a deterioration of civil liberties and constitutional democracy long-term. Specifically, they worry that many leaders might not easily give up their newfound powers, and that civil liberty restrictions will become the new normal.
While it is of course too soon to explore the long-term consequences of COVID-19 for constitutional democracy, we believe that it is helpful to understand the legal bases for the extraordinary powers that governments are currently exercising. In this brief Essay, we find that, while the details of course vary from country to country, there are three broad legal bases for the COVID-19 measures: (1) the declaration of a state of emergency under the constitution, (2) the use of existing legislation dealing with public health or national disasters, and (3) the passing of new emergency legislation. In the remainder of this Essay, we describe these three broad approaches. In a follow-up Essay, we will evaluate their respective risks to civil liberties and the rule of law.
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