Tom Ginsburg on How Emergency Powers Can Pit Public Health Against Privacy, Assembly, Religion, and Other Protected Rights

Can Emergency Powers Go Too Far?

The COVID-19 pandemic is affecting nearly every person on the planet, threatening lives and economies. Less well appreciated is that pandemics also touch every government. We have already seen vastly different public health responses from governments around the world, ranging from a very relaxed approach in Sweden to total lockdowns of large regions in China and Italy. We also observe great variation in the extent to which governments deploy their legal and constitutional powers to combat the virus.

Might pandemics threaten constitutional government along with the lives of their citizens? Certainly, looking around the world, we have witnessed some governments that have taken advantage of the crisis. Exhibit A is Hungary, formerly a poster child for democracy in the 1990s, whose leader Viktor Orbán has been building what he calls an “illiberal democracy” for many years. With the pandemic, Hungary’s parliament last week voted Orbán dictatorial powers. He can suspend the operation of any law, and has new powers against those who publicize false or distorted facts that interfere with public protection. Violation of a quarantine order is now punishable with a long prison term. Most disturbingly these measures have no end date.

Handling pandemics implicates the general problem of emergency powers. Virtually all modern constitutions—more than 90% by our count—allow for extraordinary measures of some kind to be taken in emergencies. But the very possibility of exercising vast powers invites abuse. The fear is that, Orbán-like, a leader can invoke an emergency to bypass all checks on power. This is easier because of public panics. As one of us has shown, Americans of whatever political stripe seem willing to forgo many constitutional rights, so long as the government assures them that the response is necessary to combat the COVID virus.

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