Tom Ginsburg on Emergency Powers and Constraint During a Crisis

COVID-19 and the Bound Executive

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.

Read more at I·CONnect