The bound executive: Emergency powers during the pandemic

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. 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 around the world have responded to the 2020 global pandemic. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. The survey captures, for each country, the legal basis for the country’s pandemic response as well as the extent to which there has been judicial or legislative oversight, and whether the central pandemic response has encountered pushback from subnational units. This Article finds that, contrary to this conventional wisdom, courts, legislatures and subnational governments have played important roles in constraining national executives. Courts have played three different roles: (1) they have insisted on procedural integrity of invocations of emergency; (2) they have engaged in substantive review of rights restrictions, balancing rights against public health concerns; and (3) they have in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have likewise played an active 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 appropriate response. Taken together, these findings suggest that, in the current crisis, 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 are ill-suited to other kinds of emergencies, such as a pandemic. It develops a typology of crises and conceptualizes how different kinds of emergencies require different modes of crisis governance. Specifically, in crises like a pandemic—in which information is dispersed, the crisis is slow-moving, and local governments are needed to implement the crisis response—the executive is structurally more bound than in national security crises. This Article further defends the role of institutional checks and balances during emergencies, arguing that they are likely to produce more legitimate and reasoned responses than the executive acting alone. This is especially important in situations in which it is not clear what the optimal response is, and for which different societies may have legitimate differences over how to balance protective measures against civil liberties. For many crises, then, emergency governance should be Madisonian, not Schmittian.