The bound executive: Emergency powers during the pandemic

Abstract

Emergency governance, we are often told, is executive governance. Only the executive 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 responded to the 2020 global pandemic during the critical first few months. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. This article finds that, contrary to the conventional wisdom, courts, legislatures, and subnational governments have played important roles in constraining national executives. Courts have insisted on procedural integrity of invocations of emergency, engaged in substantive review of rights restrictions, and in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have played a 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 response. Taken together, these findings suggest that, during COVID, 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 may be ill-suited to other kinds of emergencies, such as a pandemic.

1. Introduction

Never before have the world’s democracies simultaneously experienced such a major contraction of civil liberties as during the pandemic of 2020. Around the world, democratic governments have taken steps that were unimaginable in prior years, severely restricting freedoms that citizens normally take for granted. Among the extraordinary measures to fight the novel coronavirus (COVID-19) are nationwide stay-at-home orders, military-enforced curfews, suspended religious services, cellphone monitoring, the suspension of schools and other government services, restricted travel, and the censoring of news.¹ These measures appear to be widely supported by publics in many countries;² yet, they have also spurred concerns about their constitutionality, about the possible erosion of civil liberties, and about their long-term effects on democratic governance.³

More generally, the pandemic response has produced massive debates about the role of government power during times of crisis, one of the oldest topics in constitutional and political theory. It is conventional wisdom that emergencies require massive delegation of power to the executive, which is the only branch of government with the information, decisiveness, and speed to respond to crises. Therefore, the executive cannot be effectively constrained by the other branches of government, and may even need to operate outside the law entirely. Checks and balances that ordinarily constrain constitutional governance thus cease to exist during times of crisis. While this view, associated most prominently with Carl Schmitt, has numerous critics, it remains popular, with high-profile proponents such as Eric Posner and Adrian Vermeule, who articulate a theory of an “unbound executive” in a number of books and law review articles.⁴ Posner and Vermeule characterize crisis governance as “Schmittian” and “post-Madisonian,” because they believe that the Madisonian scheme of checks and balances, wherein different branches and levels of government have the incentives to keep each other in check, fails to operate under such circumstances.⁵ (Note that because Posner and Vermeule’s concerns are actually different from those of Carl Schmitt, we characterize their view as “neo-Schmittian” in the remainder of this article.)

This article presents data from an original global survey and uses these data to evaluate claims about the nature of emergency powers in light of crisis governance during the first few months of the 2020 pandemic. Our survey documents, for each country, the legal basis for the early pandemic response as well as the extent to which there has been judicial oversight, legislative involvement, and whether the executive’s pandemic response has encountered pushback from subnational units. The survey, which was completed in the summer of 2020, allows us to evaluate whether and to what extent checks and balances operated during the critical first few months of the current crisis.

This article’s key finding is that, in many countries, checks and balances have remained robustly in place and that governance has been decidedly Madisonian. Perhaps most surprising is that, in over half of the democracies we surveyed, courts have played a visible role in monitoring the executive. There are three broad bases for judicial interventions in the pandemic response. First, courts have scrutinized whether proper procedures are followed and that the emergency response is rooted in law. Courts in the United States, Israel, Kosovo, Ecuador, the Czech Republic, Lesotho, El Salvador, Romania, Pakistan, and Uganda are among those that have become involved in the pandemic response on procedural grounds. Second, some courts have engaged in substantive rights review, with the goal of ensuring that the restrictions on rights are necessary, proportional, and equally applied. Among others, we have seen courts in the United States, Germany, Italy, France, Malawi, South Africa, Zimbabwe, Slovenia, Ecuador, Pakistan, and Kenya balance individual rights against public health considerations. Third, we see some courts demanding that the executive take action, especially in contexts where the national executive fails to adequately respond to the pandemic. Notably, we see courts demanding action in countries as diverse as Brazil, the Philippines, Zimbabwe, Nepal, and India. Of course, the fact that courts attempt to monitor executive power does not mean that they actually succeed. Court orders can be defied, and implementation might be lacking, especially when courts dictate complex policy responses. Nonetheless, the fact that many courts have involved themselves in the pandemic policy response is an indication that executive power has not been entirely unbound, and that judicial oversight has remained in place.

Legislatures, too, have played a role in responding to the crisis, devising quick legislative solutions to the unfolding crisis but also providing authority and oversight. Notably, in roughly two-thirds of countries in our survey, legislatures have been directly involved in the pandemic response, either because they had to declare or extend a state of emergency or because they passed new legislation. The vast majority of legislatures that passed new legislation have also attempted to provide safeguards against abuse by making these new laws specific to the current crisis and temporary in nature. They have further amended existing laws and, in some cases, established parliamentary oversight committees to monitor the response. Even though legislatures have not been on the frontlines of accountability as much as courts, the claim that they are unable to play a part in crisis governance is not supported by recent evidence.

Finally, in a number of countries, subnational governments and local officials have played an important role in fighting the pandemic, sometimes even when they lack the formal authority to do so. Specifically, in a number of countries, subnational authorities have been more aggressive than national governments, demanding greater restrictions for their particular localities; and in some places, they have pushed back against national leaders who have been perceived as over-reaching. Existing theories of emergency powers are mostly silent on the role of subnational governments; yet, our findings suggest an important role for vertical checks and balances in crisis governance.

These findings call for revisiting conventional accounts of emergency powers. While existing accounts appear to apply to crisis governance in general, they are mostly based on one particular type of crisis: a national security crisis. Some of the core insights from the literature, therefore, are ill-suited to other kinds of crises, such as natural disasters or pandemics. While a pandemic undoubtedly constitutes a crisis, it is far from clear that crisis governance should be the same in a pandemic as in a national security crisis. A key difference is that, during a pandemic, information is highly dispersed and there is no need for secrecy in formulating the response. Under these circumstances, courts and legislatures may see no need to defer to the executive; to the contrary, they may possess some institutional advantages in dictating (part of) the response. Another important difference is the potential role for subnational governments: since local officials often have better information on health risks and are needed to implement any response, they are important actors in pandemic crisis governance. These differences notwithstanding, little to none of the vast literature on emergency powers differentiates between different types of crises.

This article seeks to fill this gap in the literature. After presenting a typology of crises, it argues that pandemics in particular require a mode of governance in which different branches formulate the response together through cooperation, contestation, and dialogue, and in which subnational governments take part. This, indeed, is what we have observed in many democracies during the 2020 pandemic, and we believe this to be a good thing. A response formulated as a result of a back-and-forth between different branches and levels of government is likely to be more well-reasoned and seen as more legitimate. Different societies may have legitimate differences over the optimal balance among health needs, economic goals, and civil liberties. In such a situation, the best response is likely one that reflects input from multiple authorities.

The remainder of this article is organized as follows. Section 2.1 reviews the classic problem of emergency regimes, focusing particularly on the neo-Schmittian view, as articulated most prominently in the writings of Posner and Vermeule. Section 2.2 reviews the legal mechanisms for unbinding the executive during crises. Section 2.3 lays out different types of crises, and how their nature might favor or disfavor involvement of particular government institutions. Our evidence is limited to pandemic response, though we believe the findings may have broader application.

Section 3 describes our research methods and presents basic descriptive findings from our global survey of 106 countries from the onset of the pandemic until mid-July 2020. It shows that, although most of the countries surveyed have constitutional provisions allowing for a state of emergency, only a minority invoked them during the current crisis. Instead, most countries found that ordinary legislation provided sufficient legal basis for a response. It also shows that Madisonian checks and balances have mostly stayed in place during the pandemic. Legislatures have been involved in some way in 64% of the countries we surveyed. Likewise, courts have been directly involved in the pandemic response in 55% of the democracies we surveyed (and 41% of all countries). And there has been resistance to uniform national responses from subnational units in 34% of the countries in our sample.

Section 4 provides more detail on the quality and intensity of the constraints imposed upon the executive. It draws on our survey to provide illustrations of judicial involvement, dialogue between the legislature and executive, and pushback by subnational governments. It lays out the different roles that courts have played. It also provides a qualitative assessment of the different ways in which legislatures and subnational units have involved themselves in the pandemic response.

Section 5 concludes with some observations about the preferred mode of crisis governance during a pandemic. We note that, although it is too early to draw any final conclusions about the impact of checks and balances on the quality of the pandemic response, our findings suggest that crisis governance during the pandemic has not been Schmittian but Madisonian.

2. Executive power and emergencies

2.1. The unbound executive

Discussions of emergency power canonically begin with Carl Schmitt, whose theorizing of the state of exception as the core of sovereignty remains a touchstone to this day.⁶ Schmitt’s jurisprudential thinking placed the state of exception at the very center of analysis, beginning with his work on the Roman dictatorship.⁷ Schmitt celebrated the Roman model as a commissarial model of dictatorship, to be distinguished from the “prerogative” dictator who could transform the legal order. The Roman model is one in which law constrains power by having separate rules for ordinary times and for states of exception. In his later work, however, Schmitt came to emphasize the inevitability of political decision in this scheme, and he attacked liberal legalism for what he saw as a naïve view that law could control politics.⁸ Schmitt’s position was that even if law purports to constrain the powers of government, during times of crisis, there is always someone who must decide to invoke the state of exception as a discretionary matter.⁹ This is a claim that law runs out under certain conditions.

Schmitt’s primary concerns were different from our own, but his observation that emergency power is effectively unconstrained has often been repeated since. In a famous book written in the wake of World War II, Clinton Rossiter examined the growth of emergency power in the United States and other democracies, arguing that constitutional dictatorship was inevitable.¹⁰ As he put it, “[n]o sacrifice is too great for our democracy, least of all the temporary sacrifice of democracy itself.”¹¹ Rossiter therefore set out a number of criteria to ensure that any invocation of emergency rule remain within constitutional boundaries, such as a requirement of necessity and temporal limits. Rossiter’s main example of an exemplary constitutional dictator was Abraham Lincoln, who granted himself dictatorial powers but ultimately restored constitutional order.¹²

In recent years, from a very different political perspective, the Italian philosopher Giorgio Agamben has taken up the neo-Schmittian mantle to argue that we are in a state of permanent emergency, which law cannot constrain.¹³ Agamben thus accepts Rossiter’s positive claim that emergency has become normalized, but adopts Schmitt’s view that it reflects extra-juridical governance. We have succumbed already: fear and the need for urgent action lead us to defer to government, which for its part greedily exploits the opportunities presented by crisis.¹⁴ (Indeed, Agamben’s fear of emergency power led him, bizarrely, to decry the coronavirus as a “supposed pandemic” and suggest that emergency measures were “absolutely unwarranted.”¹⁵)

These arguments, coming from theorists on both the political right and left, proceed at a general level and do not address the separation of powers per se. In a number of influential books and law review articles, Eric Posner and Adrian Vermeule consider the constitutional implications of some of Schmitt’s views, arguing that in times of emergency, the executive becomes “unbound.”¹⁶ Their claim was developed in the context of the United States’ responses to the September 11 terrorist attacks and the 2008 financial crisis, but the basic idea generalizes to other countries as well.¹⁷ In essence, they argue that when faced with an emergency, the judicial and legislative branches will delegate massive amounts of power to the executive, abdicating powers and rendering Madison’s vision void. The reason that emergency begets delegation is simple necessity. According to Posner and Vermeule, the executive is “the only organ of government with the resources, power, and flexibility” to balance civil liberties against security in the face of an emergency.¹⁸ Thus, “[p]olitical conditions and constraints, including demands for swift action by an aroused public, massive uncertainty, and awareness of their own ignorance leave rational legislators and judges no real choice but to hand the reins to the executive and hope for the best.”¹⁹ The claim is not only descriptive, but also normative: Posner and Vermeule believe that an “unbound executive” is the best way to ensure a swift and decisive crisis response.

This means that courts should get out of the way. Courts are by their nature slow: judicial review always involves a time lag after emergency measures are taken, which means that courts will often face a fait accompli.²⁰ Responding to emergency also requires secrecy, especially when faced with threats to national security.²¹ Court proceedings, however, are usually open, rendering judges ill-equipped to ensure much-needed secrecy. Finally, they note that courts lack the political legitimacy to second guess the executive during a time of crisis.²²

Legislatures likewise defer to the executive. According to Posner and Vermeule, legislators know that they are ill-suited to take emergency action. Among the legislature’s institutional disadvantages, Posner and Vermeule list “lack of information about what is happening,” a “lack of control over the police and military,” and an “inability to act quickly and with one voice.”²³ Notably, legislative deferral does not mean that the executive will lack a statutory basis for emergency measures. Instead, it means that legislatures will not attempt to legislate during a crisis, but instead act beforehand by passing open-ended legislation that can be activated when an emergency arises, allowing the executive substantial discretion in the response.²⁴ According to Posner and Vermeule, this practice also explains why unauthorized executive actions are rare.²⁵ The practice of passing vague legislation ex ante ensures that there is always a formal statutory basis for the executive action, but that this can be accomplished without the legislative branch having to substantively involve itself in crisis governance.²⁶

Posner and Vermeule are less explicit about vertical checks and balances between the national government and subnational units. But at various points, they seem to suggest that, at times of emergency, power should flow from the subnational level to the national level.²⁷

Posner and Vermeule ultimately argue that, at least in the United States, the phenomenon of the unbound executive is not limited to times of emergency. They believe that modern government bears little resemblance to the Madisonian scheme of checks and balances laid out in the US Constitution. With the rise of the administrative state, and the complexities of modern governance, checks and balances have become largely formal. As they summarize, “[l]egislatures and courts . . . are continually behind the pace of events in the administrative state; they play an essentially reactive and marginal role, modifying and occasionally blocking executive policy initiatives, but rarely taking the lead” and “in crises, the executive governs nearly alone, at least so far as law is concerned.”²⁸

Like other neo-Schmittians, Posner and Vermeule have encountered many opponents, especially regarding their normative claim that legislators and courts should defer to the executive during crisis.²⁹ Many scholars believe that unbinding the executive in times of crisis invites an abuse of powers. For many, this image of an overly powerful executive operating in a system with few checks and balances is antithetical to the essence of a constitutional democracy. Bruce Ackerman, for example, shares Posner and Vermeule’s view that executive power is largely unconstrained, but believes this puts the American republic in grave peril.³⁰ For these reasons, scholars have proposed that courts should exercise judicial oversight³¹ and that legislatures should not simply defer to the executive even in times of crisis.³²

Posner and Vermeule’s empirical assumptions have likewise been challenged. In the United States, many scholars agree with Posner and Vermeule that courts tend to be deferential during a national security crisis.³³ While courts may insist on statutory authorization, they do not typically engage in substantive rights review during crises.³⁴ Further, as Kim Lane Scheppele has argued, Congress has not done much better.³⁵ Yet, the claim that US governance is permanently Schmittian has encountered substantial criticism. A number of scholars, including Richard Pildes, Saikrishna Prakash, Michael Ramsay, and Aziz Huq, have all argued that Posner and Vermeule understate the efficacy of legal checks and balances and the extent to which the executive is constrained by law.³⁶

2.2. Legal bases for emergency powers

How does the executive become unbound? Posner and Vermeule assume that, during emergencies, the ordinary constitutional framework formally stays in place, but that in practice, there will be massive delegation to the executive by the other branches of government. Their account describes the United States; yet, in many countries, there is another way in which the executive can become empowered during an emergency, which is by invoking a special constitutional emergency regime.³⁷ These regimes have developed and spread precisely to advance Rossiter’s idea of a “constitutional dictator,” who gains special powers to preserve the constitutional order without changing it.³⁸ Because our account is comparative, this section will describe these two different models: one in which the constitution contemplates emergency rule, and the other in which legislation provides the main source of power.

a) Constitutional emergency powers

Over 90% of all constitutions today include clauses allowing for the declaration of a state of emergency.³⁹ For example, South Africa’s Constitution allows parliament to declare an emergency when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency.”⁴⁰ Once invoked, the government can rule by decree and take extraordinary actions that would not be normally permitted. Most notably, a state of emergency usually allows the government to “derogate” from some rights, meaning that these rights are formally suspended as required by the emergency. It might further allow the executive to assume powers that usually belong to other state organs, including those of provinces or regions.⁴¹

Yet, most modern constitutions not only accommodate emergency rule, but simultaneously seek to constrain the use of emergency powers. The reason is that emergency powers are potentially prone to abuse, a concern that has informed the design of regimes of exception since the Romans. There are numerous historical examples of this prediction coming to pass. Brian Loveman’s magisterial study of Latin America traces two centuries of such behavior, in which autocrats have invoked emergency powers to dissolve parliament, suspend the constitution, and rule without constraints.⁴² Indira Gandhi’s 1975 declaration of emergency in India led to the targeting of her political opponents for detention and torture.⁴³ Benito Mussolini’s first act as Prime Minister of Italy in 1925 was to demand emergency powers, which he then deployed against his political enemies.⁴⁴ And the Reichstag fire in Germany provided the impetus for Adolf Hitler to acquire plenary powers through the Enabling Act of 1933.⁴⁵

To prevent potential abuse, most constitutional emergency regimes build in safeguards against abuse by insisting upon checks and balances. Notably, 60% of constitutions in force (and 73% of democratic constitutions) require parliament to declare the state of emergency.⁴⁶ Many further stipulate that during the state of emergency, parliament cannot be dissolved.⁴⁷ In some places, the constitution cannot be amended during an emergency, reflecting the idea that the ultimate goal of a state of emergency is to preserve the constitutional order, and not to change it.⁴⁸ In addition, many constitutions also set an automatic expiration date for emergency powers, and mandate parliamentary approval for extending emergency rule. Constitutions further seek to prevent abuse by enumerating a limited set of circumstances that allow an emergency to be declared.⁴⁹ Thus, while constitutional emergency regimes allow the executive to assume additional powers, they rarely authorize a truly unbound executive.

Abuse of constitutional emergency powers can further be reined in through judicial review. The traditional image of a state of emergency is one where the “constitutional dictator” assumes all power, and in which rights are suspended. Even so, there is no doubt that courts can scrutinize whether emergency power was properly invoked and whether the required constitutional procedures were followed.⁵⁰ In fact, some constitutions explicitly build in judicial oversight of emergency powers.⁵¹ What is more, international human rights bodies have recently clarified that any restrictions on rights imposed during emergency rule (referred to as “derogations”) need to be necessary, proportional, and justified by an important public goal.⁵² This insight opens the door for courts to review the necessity and proportionality of restrictions on rights, even if rights have been derogated.

b) Statutory authorization

Even when a constitutional emergency regime does exist, this does not necessarily mean it has to be invoked during an emergency. Executives can be granted additional powers through ordinary legislation, which may be sufficient to address the crisis. John Ferejohn and Pasquale Pasquino have called this the “legislative model” of crisis governance.⁵³ Such legislative delegation allows the executive to deploy additional powers that she does not normally possess, including restricting the exercise of rights. Rights are not absolute, and rights restrictions are usually permitted as long as they are necessary to accomplish some other important goal, use a proportional means to accomplish the stated goal, and are based in law.⁵⁴

Ferejohn and Pasquino argue that, compared to the constitutional emergency regimes, this model has certain features that can rein in potential abuse, because ordinary checks and balances continue to operate.⁵⁵ First, it necessarily ensures legislative involvement, because the legislature has to designate the additional powers that will be granted to the executive.⁵⁶ Second, and perhaps more importantly, because the ordinary constitutional framework stays in place, executive actions are subject to judicial review.⁵⁷ That means that courts can review whether the restrictions on constitutional rights are indeed necessary and proportional, as well as properly authorized.

Legislation that authorizes additional powers for the executive during crises can be passed in anticipation of a crisis (ex ante) or when a crisis presents itself (ex post). Ex ante legislation allows the executive to assume additional powers if and when an emergency presents itself. For Posner and Vermeule, it is this type of legislation that epitomizes legislative deferral, as legislatures are not actively involved during a crisis. But of course, the extent to which the executive is actually bound depends on whether safeguards are built into such legislation. One option, used in some countries, is to require the legislature to declare the emergency that activates the legislation. Another option is to include an automatic expiration date, whereby the laws automatically cease to apply unless the emergency is extended by the legislature. Such safeguards, if adopted, can ensure legislative involvement and rein in the unbound executive.

Emergency legislation can also be passed ex post, granting the executive additional powers as needed. An advantage of this approach is that it ensures legislative involvement in the actual emergency and might allow tailoring to the specific needs of the crisis at hand. Yet, hastily drafted legislation adopted in the face of a crisis might also be problematic, especially when it stays on the books after the crisis ends. Indeed, many scholars are particularly concerned about this type of legislation.⁵⁸ But much will again depend on how the legislation is drafted. If the law is specific to a particular crisis, it reduces the risk that it will be used in future and possibly dissimilar situations. Likewise, when the legislation includes a sunset clause, it reduces the risk that restrictions will stay in place permanently.

c) Extra-legal action

Of course, emergencies can also spur unauthorized executive action. Some have argued that it might actually be preferable for executives to act without clear legal basis. The key idea here is that because emergency actions often require the curtailment of civil liberties and entail delegation of extraordinary powers to the executive, it is best if we do not condone these actions as legal, but rather evaluate them after the emergency has passed.⁵⁹ These scholars also believe that courts should refrain from ruling on emergency measures in the midst of a crisis, as any decision upholding them might legitimize highly problematic uses of emergency powers. An often-cited illustration is the Korematsu decision, in which the US Supreme Court, in the midst of World War II, held that it was constitutional to detain Japanese Americans.⁶⁰ Thus, according this view, it is best to see executive action during emergency as “extra-legal”: perhaps necessary in the moment, but not based on law, and to be condemned afterwards if excessive. The core idea here is that checks and balances might have to be temporarily suspended, but resume in full force once the emergency has passed.

It is also not uncommon during an emergency for the executive to act first, and then to look for some form of legal authorization later. A genuine emergency may not allow the executive to come up with a well thought out legal scheme, and a valid legal basis might be found later. In such cases, the actions are not necessarily illegal or extra-legal, but there might be some initial uncertainty over their precise legal basis.

2.3. Types of emergencies

One problem with the existing literature is that, although it theorizes about crisis governance in general, many of the key claims appear to be drawn from one particular type of emergency, namely a national security crisis, such as an invasion or domestic insurrection. This paradigmatic challenge motivated the Romans to design the dictatorship; it was a central problem motivating Schmitt in Weimar Germany; and it led Posner and Vermeule to tackle the problem during the war on terror.⁶¹ For understandable reasons, 9/11 has motivated much of the analysis in this century.

The current pandemic, however, reminds us that emergencies come in many different forms, with implications for the locus of institutional response. Indeed, it is possible that the argument that only the executive has the requisite ability to act with speed and decisiveness does not hold for emergencies outside of the national security context, if it even holds there at all (a point we do not directly address in this article).

Table 1 lists four particularly common types of crises: national security crises, financial crises, natural disasters, and pandemics. It describes how they differ on salient features on the nature of the crisis as well as about the nature of the response. Let us begin with the national security crisis, which has been the basis for most conventional accounts of emergency governance. The source behind this type of crisis are violent actors (terrorists or a foreign military) and events are typically fast-moving. There is usually need for a uniform response and a need for secrecy in formulating the response. What is more, in such crises, the national-level executive branch will have access to unique information in the form of intelligence resources and capability assessments. This concentration of information, both at the center of government and in one branch thereof, makes it very difficult for other branches or subnational actors to second-guess executive decisions.⁶² It is for this reason that scholars like Posner and Vermeule believe that such crises require an unbound executive.

Table 1.

Typology of crises.

	National Security	Financial Crisis	Natural Disaster	Pandemic
Source	Violent actors	Regulatory failure	Nature	Nature
Speed of crisis onset	Fast	Fast	Some fast, some slow	Slow
Duration of crisis	Variable	Variable	Short	Enduring
Distribution of information on danger	Concentrated	Concentrated	Decentralized	Decentralized
Need for uniform response across territory	High	High	Low	Depends, but generally low
Need for secrecy	High	Low	Low	Low
Distribution of tools for response	Concentrated	Concentrated	Decentralized	Decentralized

The second type of crisis, a financial crisis, is similar to a national security crisis in many ways. One difference is that there may be less of a need for secrecy given that there is no outside enemy from which the response strategy needs to be hidden (although there still may need to be some secrecy vis-à-vis markets, but that is outside the scope of the present analysis). But most importantly, financial crises typically require a highly concentrated technical response by central banks and ministries of finance. Further, these actors must address issues that touch on the economy as a whole. As a result, the response will likely be concentrated in the executive branch and central bank, as other government actors are unlikely to possess the necessary expertise to take appropriate action. It is for this reason that many have observed that courts tend to be fairly deferential to the executive during financial crises, and it is hard to imagine a role for subnational actors.⁶³ Indeed, Posner and Vermeule treat financial crisis and national security crises as similar: both require an unbound national executive.⁶⁴

Now, consider natural disasters and pandemics. Of course, these two types of crises are not identical. Specifically, a pandemic may be slow-moving in ways that are not true of earthquakes or hurricanes (although other natural disasters, such as droughts, may be slow in developing). Furthermore, pandemics last much longer than a typical natural disaster, often manifesting in multiple waves.⁶⁵ Nonetheless, these two kinds of crises share distinct characteristics that have important implications for crisis response governance. Neither natural disasters nor pandemics are manmade, meaning that there is no outside enemy. More importantly, natural disasters and pandemics differ from national security and financial crises in that information on the dangers is not concentrated but dispersed. In a pandemic in particular, information must be aggregated from thousands of health care providers. Furthermore, the quality of government information, both about the nature of the challenge and possible responses, may be no better than that in the private sector. Universities, foundations, pharmaceutical companies, and other actors have expertise that likely exceeds that of government agencies themselves, and interact with each other in a complex informational ecosystem. As a result, local officials and private actors may have information superior to that held by the central executive.

Because of these features, the executive is structurally more “bound” in a health crisis or a natural disaster than in a national security crisis. When information is not centrally concentrated and there is no need for secrecy, courts and legislatures may not see the rationale for deferring to the executive branch, as they themselves have access to the same information as the executive. In fact, they may believe that they possess institutional advantages that will aid the crisis response. Implementation of a health response requires coordination of a broad set of actors, including hospitals, insurance companies, drug companies, logistics firms, and local emergency responders. These actors are not under the hierarchical control of the executive branch. Motivating them requires persuasion and coordination, and it is not clear that the executive branch has a comparative advantage in doing so vis-à-vis legislatures. While there is certainly an important role for a national government—coordinating vaccine development and distribution, for example—the technical knowledge required may very well lie outside of government itself, which makes it less obvious that the executive alone is to respond. Thus, in a natural disaster or pandemic, a uniform, concentrated response by the executive is less critical than for a national security crisis or financial crisis.

The dispersed nature of information, along with the need to implement programs on the ground, empowers lower-level actors. Natural disasters are typically concentrated in a particular part of a country, as is true of most health crises (the current pandemic is exceptional in this regard). This means that local governments possess superior information about the challenges as well as the tools necessary to respond. In a pandemic, subnational units are also crucial in implementing the crisis response, and in providing information to the central government. This role empowers them to potentially take independent action, perhaps even in defiance of the central government. This is especially true in federal systems, in which states typically have independent law-making powers in the area of public health. Federalism makes policy implementation complex, uneven, and uncertain even under ordinary circumstances and such challenges are exacerbated during times of crisis.⁶⁶ In a pandemic, states can refuse to implement emergency orders that they perceive as particularly draconian or impose stricter measures than the national government if they deem the national response insufficient. The same might be true in non-federal (unitary) countries: because provinces, municipalities, and cities are needed to implement the response, they are empowered to resist the national response.⁶⁷

We recognize that our typology is not perfectly clean, and that one type of crisis can bleed over into another type. For example, a natural disaster or pandemic might lead to severe economic consequences and even a financial crisis. The associated strain on society might lead to an uptick in terrorist incidents.⁶⁸ In addition, certain types of national security crises, including the war on terror, may actually implicate local governments and thus be susceptible to similar implementation problems.⁶⁹ And some aspects of a pandemic might be more like a financial crisis, in that they require a technical response (vaccine development offers an example). But the distinctions as to the speed and duration of the crisis, and the information structure of the challenge, do invite normative consideration as to which government actor, or combination of actors, is best positioned to respond. It is far from clear that the national executive ought to be the lead actor in every emergency.

The distinct nature of slow-developing crises like pandemics was recently highlighted by the Nobel-prize winning philosopher Amartya Sen, who, drawing on his important work on famines, distinguishes between wars and “social calamities” and argues that a pandemic is a social calamity.⁷⁰ Sen notes that “[t]ackling a social calamity is not like fighting a war which works best when a leader can use top-down power to order everyone to do what the leader wants—with no need for consultation.” Instead, he argues that what is needed to deal with social calamity like a pandemic “is participatory governance and alert public discussion.”⁷¹ Sen is not explicitly focused on checks and balances or the relative roles of different branches of government; but his analysis further highlights how crisis governance should be different in a pandemic than in a national security crisis. Building upon Sen, it is reasonable to think that doing so requires involvement by different branches of government as well as local officials, rather than an unbound executive.

3. A global survey of the pandemic response

3.1. A global dataset

To systematically survey checks and balances in the pandemic, we compiled a global dataset on the early legal response to COVID-19. Specifically, we collected information for some 106 countries and their pandemic responses through mid-July 2020. For each country, we first identified the formal legal basis for the COVID-19 response: (i) whether the country declared an emergency under the constitution; (ii) whether it relied on legislation, either new or old; or (iii) whether the executive acted without clear any legal authorization whatsoever. We next documented whether constraints have been imposed on the executive by the legislature, the judiciary, or subnational units.

For the legislature, we asked whether it had been involved in the pandemic response either by declaring a state of emergency or by passing new legislation. If a state of emergency was declared, we coded whether the legislature was involved in declaring and/or extending the state of emergency beyond its initial expiration date. If new legislation was passed, we coded whether it was (i) specific to the current crisis; and (ii) whether it has an automatic expiration date. We also documented whether there was an ongoing role for the legislature, which we assumed to be the case if (i) the legislature had to extend the state of emergency; or (ii) the legislature passed temporary legislation that would have to be reactivated upon expiration; or (iii) there was some formal parliamentary oversight of the executive’s pandemic response. For courts, we documented whether they had issued any decisions scrutinizing the country’s pandemic measures. If courts were involved, we next consulted and analyzed these cases in a qualitative matter. For subnational units, we coded (i) whether subnational units had independent powers to set their own pandemic response; (ii) whether they were involved in creating or implementing the national response; and (iii) whether they had resisted the national government.⁷²

Ours is not the only data collection effort relating to pandemic policies and civil liberties. A number of existing initiatives by the International Center for Non-Profit Law, by the Center for Civil and Political Rights, and by the University of Oxford Blavatnik School of Governance code the specific measures that countries have taken, how stringent they are, and how they have affected civil liberties.⁷³ Other novel databases focus on the postponement of elections,⁷⁴ whether and how courts proceedings have been affected,⁷⁵ and whether and how parliamentary proceedings have been affected.⁷⁶ Our data collection effort, however, differs from these other projects. While some of the existing efforts do document whether a state of emergency has been declared, they do not clarify in detail the legal basis of the state of emergencies (notably, sometimes a health emergency can be declared under public health legislation, rather than the constitution).⁷⁷ And to our knowledge, ours is the only attempt to systematically document judicial, legislative, and subnational involvement in the pandemic response.

A team of research assistants answered a set of standardized questions for each country. All research assistants either had graduated from law school or are currently in law school. All the Latin America memorandums were written by native or fluent Spanish speakers, while French-speaking countries were covered by native or fluent French speakers. For most other countries, we had to rely on English language sources. Yet, considering the political salience of the COVID-19 lockdowns, we found that there were always multiple sources describing the events in English. Only in a small number of cases were we unable to answer some of the questions, and in those cases, we simply left the questions unanswered.

Most countries’ legal responses were easy to classify, but we faced occasional judgement calls. In some cases, it was not always clear what to count as legislation. This was the case for countries that used a special type of executive order: a “decree law” that is passed by the executive, but that later would have to be ratified by parliament. We found that this approach was taken in Italy, Greece, Portugal, Morocco, and Tunisia.⁷⁸ Because parliamentary approval is ultimately required, we coded this as legislation, and thus a legislative response to the emergency. Another question concerned countries that invoked their constitutional emergency regimes, but where the details of the emergency regime are worked out in legislation, typically an organic law. Since such organic laws are mandated by the Constitution and widely considered to be distinct from ordinary legislation, we coded this as a constitutional response, not a legislative one. We also had to make judgment calls about the scope of legislative involvement. We decided to focus only on the main response to curb the virus (in most countries this entails some form of lockdown). This meant that, if the legislature had been involved merely in the passing of economic stimulus packages, we did not code this as the passing of new legislation.

Another judgement call concerned the question what kind of cases to treat as judicial oversight. The current pandemic raises a whole host of legal issues, in many different realms. We decided to only focus on judicial decisions that directly scrutinize the government’s pandemic response. To illustrate, a ruling by a court in India which held that “a lockdown in these unprecedented times, is not a legal basis for termination or repudiation of a contract,” was not counted as a case of judicial oversight over the pandemic response.⁷⁹ We likewise excluded cases in which criminal courts are involved in sentencing those who violate lockdown orders. We also only coded a country as having judicial involvement if the court actually invalidated or modified (parts of) the pandemic response or ordered the government to take certain actions. Thus, we do not include instances in which courts declare cases inadmissible or uphold pandemic measures. Following this rule, we excluded a case from Chile in which the Constitutional Tribunal upheld the government’s decision not to release those prisoners that were convicted of crimes against humanity. Yet, if courts upheld laws or emergency declarations, but nonetheless ordered the government to take certain actions, we coded these as instances of judicial involvement. Examples include a case from Ecuador and one from St. Kitts and Nevis. Likewise, if courts reviewing the pandemic response cause the government to preemptively modify its actions ahead of a ruling, then we do count this as judicial involvement, since in this scenario, courts did impact the pandemic response measures.

Another issue we have to grapple with is that this is an area that is changing rapidly and that many countries have pursued multiple legal strategies. We updated many of the memos as the pandemic response unfolded. All memos are up to date through July 15, 2020. This time period captures the first critical stage during which countries locked down amidst substantial uncertainty and panic over the nature of the new virus, as well as some four months thereafter (though this time period varies from country to country depending on when the virus was first detected and how quickly it was contained if it was).

3.2. Global exploration of the pandemic response

Exploration of our initial data reveals that a legislative response to the current crisis is most common, though not by much. Specifically, some 52% of the countries surveyed thus far have relied on legislation in their pandemic response. These include major democracies such as Germany, France, the Netherlands, Switzerland, Austria, the United States, Australia, Belgium, Taiwan, South Korea, South Africa, and Japan, among others. In many cases, this legislation deals with infectious diseases or public health,⁸⁰ although countries also use other types of laws on disasters and emergencies.⁸¹

Although 89% of the countries surveyed have a detailed emergency regime in their constitution, just 43% of the countries with such a regime declared a state of emergency (while 40% of the full sample did).⁸² These include Spain, Hungary, the Czech Republic, Hungary, Armenia, Sierra Leone, and Senegal, among others (notably, 33% of authoritarian regimes did so, compared with 42% of democratic regimes, suggesting that invoking the constitution’s emergency provisions is not necessarily an authoritarian response). Finally, in ten countries, China, Cuba, Cameroon, Belarus, Saudi Arabia, Sudan, Cambodia, Rwanda, Laos, and Tanzania, the pandemic response was entirely based on executive action, and the formal legal basis for the action was never officially clarified. We coded these cases as consisting of neither a constitutional nor a legislative response, but rather as one based on executive action alone. Notably, these are all authoritarian settings.

Our data also allows us to analyze the extent to which there has been legislative oversight, judicial oversight, and resistance from subnational units. First, our data reveals that there has been a substantial role for legislatures in managing the pandemic. Legislatures have been directly involved in the pandemic response in 64% of the countries we surveyed—either because they had to declare or extend a state of emergency or because they passed new legislation (not including economic legislation). In 75% of the countries that declared a state of emergency under their constitution, the legislature had to either declare or extend the emergency. And in 45% of the countries that used legislation as the basis of their pandemic response, the legislature has drafted new laws to deal with the current pandemic (while 23% of countries that used legislation to respond also amended existing laws). Notably, in 72% of the countries that drafted new legislation, the legislation is specific to the current crisis. Similarly, 72% of countries that drafted new legislation made the new laws temporary. In most cases, the countries that passed COVID-19 specific laws also made them temporary. But a notable exception is Poland, where the new law does not have an expiration date (while conversely, Kenya drafted a pandemic management bill that is temporary but does not specifically single out COVID-19).⁸³

Perhaps even more tellingly, legislatures have an ongoing involvement in the pandemic response in 52% of the countries we surveyed. (As noted, we treat legislatures as having on ongoing role when they have to extend the constitutional emergency, or when they pass temporary legislation that has to be periodically renewed, or because there is some sort of parliamentary oversight committee.) With respect to this ongoing involvement, there is an important difference between democratic and autocratic regimes: 68% of democratic regimes in our data ensured an ongoing role for the legislature, compared with 30% of autocratic regimes. While these numbers do not reveal much about the quality of legislative engagement, they show at minimum that legislatures have not been sidelined in democratic countries.

Our data also reveal evidence of substantial judicial oversight over the pandemic response. Courts were directly involved in the pandemic response in 41% of the countries we surveyed. Here we again observe an important difference between democratic and autocratic regimes: courts were involved in the pandemic response in 55% of democracies, compared with 27% of autocracies.

We also find a role for subnational governments. Specifically, there has been some resistance from subnational units in 34% of the countries we surveyed (though outright defiance by subnational units is rarer; we found evidence of this in only 12% of cases). We found such resistance in 40% of democracies, as compared with 28% of autocracies.

These different types of checks and balances often supplement each other. Notably, in no fewer than 82% of the countries in our data did we observe either legislative involvement or judicial enforcement or resistance from subnational units. The only democratic countries in our data where the legislature, courts, and subnational units had not (yet) exercised active oversight by mid-July 2020 were Australia, Botswana, Jamaica, Switzerland, Peru, and Guyana.

If the descriptive claims about an unbound executive are correct, we would have expected to find a relatively low percentage of countries in which such constraints were evident. It is hard to state in the abstract what constitutes a “low” number, and the reader is free to draw her own conclusions from our data. But our qualitative sense is that 82% of all countries does not constitute a low number.

Of course, the numbers presented in this section do not capture the quality and the intensity of the involvement by courts, legislatures, and subnational actors. To illustrate, there are orders of magnitude distinguishing judicial involvement in a country like Germany—which has seen many cases, including some that invalidated parts of lockdown orders to protect fundamental rights—from that in a country like the Philippines, where the Supreme Court’s involvement was limited to the release of prisoners to curb the virus spread in jail. Both countries, however, are counted as having judicial involvement in the pandemic response. Likewise, there is substantial difference in legislative involvement between a country like Sweden, where the legislature passed new laws and devised a new oversight mechanism to review emergency regulations, and a country like Namibia, where the legislature had to approve and extend the state of emergency, but its role has been described as “rubberstamping” executive action.⁸⁴ Both countries, however, formally provide an ongoing role to the legislature to monitor the pandemic response. To provide a better sense of the nature of the engagement by other branches, the next section discusses examples from around the world.

4. Checks and balances in a pandemic

This section analyzes and discusses each of these forms of checks and balances in more detail by providing selected illustrations from around the world. While our survey does not allow us to evaluate how successful these various institutions have been in producing an effective pandemic response, these illustrations indicate that courts, legislatures, and subnational governments have taken an oversight role.

4.1. Judicial oversight

In over half of the democratic countries surveyed, courts were involved in the pandemic response. Here, we analyze some of these cases in some detail and identify several roles that courts can and have already played.

a) Ensuring procedures are followed

One basic role that courts can play is to ensure that procedural requirements are followed. Following our discussion above on the different formal legal bases of emergency powers, there are two broad varieties of such procedural review. First, when constitutional emergency provisions have been invoked, courts can evaluate whether all the constitutional requirements have been adhered to, such as the rule that the parliament must authorize and extend the use of emergency power. Second, when the country’s emergency response is not rooted in constitutional emergency powers, courts can insist that there must be legal authorization, typically by legislation, to ground measures taken by the executive. In the United States, where courts are widely considered to be deferential during times of crisis, commentators have observed that, when courts do get involved, they typically do insist upon legislative authorization for executive action.⁸⁵ Regardless of the exact approach, insisting on procedural integrity is the bread and butter of judicial review.

Our survey revealed a number of countries where courts have insisted upon legislative authorization. One example comes from Kosovo, where the initial government prohibition on the movement of people and vehicles was taken by executive decree. The country’s Constitutional Court ruled that legislation was required for any “restriction of rights and freedoms.”⁸⁶ Notably, the court held that declaring a state of emergency under the Constitution was unnecessary, but that limitations on rights had to be based in law.⁸⁷ Although the court invalidated the government’s lockdown measures, it left them in place until the legislature had time to pass legislation. As another example, in Pakistan, the Supreme Court urged the national legislature to pass legislation to deal with the pandemic, as the government could not limit fundamental rights through executive decrees.⁸⁸ (Notably, this case reversed an earlier decision, discussed below, in which the court ordered the reopening of businesses on weekends, and came after two justices had tested positive for the virus.)⁸⁹ In El Salvador, the Constitutional Chamber of the Supreme Court of Justice responded to arrests under the quarantine decree by demanding that Congress and the government provide a formal legal basis by passing new legislation.⁹⁰ Likewise, the Romanian Constitutional Court declared fines imposed on those who violate lockdown orders unconstitutional. The government had declared a state of emergency under the constitution; yet, the court held that emergency decrees passed by the executive could not limit fundamental rights; this could only be done through legislation.⁹¹

In some countries that invoked a state of emergency under the constitution, courts have enforced the procedural requirements of constitutional emergency regimes. In the Czech Republic, a municipal court ruled that the Health Minister’s coronavirus regulations restricting free movement and retail were imposed illegally. Such measures could only be imposed by the government under the Constitution for a period of thirty days.⁹² In this case, the government’s emergency measures had expired, and the health minister had simply re-imposed them using public health legislation as a legal basis. The court ruled that restrictions on rights could only be passed using the special procedures set out in the Constitution, which require measures to be temporary and subject to parliamentary oversight.⁹³ Similarly, when President Bukele of El Salvador extended the state of emergency without parliamentary approval,⁹⁴ the country’s Supreme Court held his declaration to be unconstitutional.⁹⁵ In extending the state of emergency, Bukele had relied on a law that allowed the President to extend the state of emergency when Parliament was not in session.⁹⁶ The court observed that parliament was in session, and further, that it was scheduled to meet before the state of emergency declared under the Constitution was set to expire.⁹⁷ The court held that the order violated the separation of power scheme set out in the Constitution. Another dramatic example comes from Lesotho, where Prime Minister Thabane declared a state of emergency and “prorogued” Parliament, citing the need to ban large public gatherings during the pandemic.⁹⁸ Thabane had ulterior motives; when he declared the emergency, Parliament was in the process of passing a constitutional amendment that would allow it to remove the Prime Minister upon passing a vote of no confidence (previously, the Prime Minister could dissolve Parliament in response). With Parliament set to pass the amendment and vote him out of office, Thabane used the health emergency to suspend Parliament. Yet the Constitutional Court nullified the prorogation, clearing the way for the embattled Prime Minister’s removal. (He was subsequently charged with murdering his estranged wife.)

In some countries, judicial scrutiny is built into the constitutional emergency regime. One example is Ecuador, where the Constitution explicitly requires the Constitutional Court to review the declaration of a state of emergency for its constitutionality.⁹⁹ And although the Constitutional Court upheld President Moreno’s declaration, it nonetheless issued urgent recommendations and expressed concerns with some of the proposed measures.¹⁰⁰ Among other things, the Court stressed the state’s obligation to guarantee the return of nationals and its obligation to take care of the homeless and vulnerable.¹⁰¹ It further stated that the state had a duty to keep the constitutional justice system up and running, to maintain checks and balances, and to protect fundamental rights.¹⁰²

b) Substantive rights review

Many of the lockdowns imposed by governments around the world entail an obvious limitation of fundamental rights, including freedoms of movement and assembly, and in many cases the freedoms of religious worship, free speech, the right to privacy, as well as other fundamental rights. These rights are typically among those for which reasonable limitation is allowed under constitutional rules, but the determination requires balancing the public need with the limitations. In a constitutional democracy, such balancing is the job of courts.

Some courts have used constitutional rights to prevent the imposition of lockdown measures, or to lift them. A dramatic example comes from Malawi, where a High Court prevented the government from imposing a lockdown entirely. The Court held that such a lockdown would be unconstitutional because the government had not taken any measures to protect the poor and vulnerable who would suffer disproportionately from the lockdown.¹⁰³ By contrast, in Pakistan, the Supreme Court, in a suo moto decision, required federal and provincial governments to ease their lockdown restrictions. Specifically, it held that the province of Sindh failed to show a rationale for reopening shops and markets but not shopping malls, and ordered malls to be reopened.¹⁰⁴ In the same decision, it held that the decision by the National Coordination Committee on COVID-19, chaired by the Prime Minister, to close down shops and businesses on Saturday and Sunday, but not other days of the week, violated citizens’ right to freedom of trade and business and the right to equal protection of law, as protected by the Constitution.¹⁰⁵

Courts have also engaged in the balancing of health goals against rights restrictions, and in the course of doing so, have demanded modifications to be made to the pandemic response to better protect rights. Germany has seen a flurry of cases.¹⁰⁶ As a federal system, the German response occurred at both the national and state levels of government. Several of the pandemic response measures by the federal and state governments have been challenged as over-reaching, violating the requirement that the rights limitations are proportional to the health objectives they serve. While most of the challenges were rejected, in several cases the German Constitutional Court forced changes to the pandemic response. In cases involving the cities of Stuttgart and Gießen, for example, it held that citizens’ right to protest was preserved, so long as they observed social distancing requirements.¹⁰⁷ The Court acknowledged that authorities had discretion under various statutory instruments on whether and how to allow certain gatherings; yet, in the course of exercising that discretion, they were required to take freedom of assembly into account. The Constitutional Court also took issue with a general ban on worship in mosques, arguing that the particular social distancing measures should be taken into account.¹⁰⁸

The German Court applied its typical proportionality framework in resolving these cases, finding less rights-restrictive ways to advance the health goals. We found similar reasoning in other countries. In Bosnia and Herzegovina, the Constitutional Court ruled that measures that required the elderly and children to stay under lockdown “until further notice” constituted age discrimination.¹⁰⁹ Specifically, the Court concluded that the requirement was a disproportional infringement on the right to equality, because the government had failed to show that children and the elderly were at an increased risk and had failed to consider measures less restrictive than this blanket rule without a clear expiration date. In South Africa, the Gauteng division of the High Court ruled that some of the lockdown measures were not rationally connected to their intended goal, and therefore unconstitutional. For example, the judgment notes that the government failed to justify why exercise is allowed, but beaches are closed: “to put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade but were one to step a foot on the beach, it will lead to infection.”¹¹⁰

Even in the United States, where courts are widely perceived to be deferential during crises and do not use the proportionality framework, we have seen some substantive rights review. While most lawsuits thus far have failed, some have not. Notably, the Sixth Circuit Court of Appeals held that Kentucky could not prohibit religious gatherings when social distancing guidelines were observed.¹¹¹ The Court observed that Governor Andy Beshear’s COVID-19 orders allowed for many “serial exemptions for secular activities [that] pose comparable public health risks to worship services,” including “law firms, laundromats, liquor stores, and gun shops” as long as they “follow social-distancing and other health-related precautions.”¹¹² But while liquor stores and gun shops could stay open, the orders “do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.”¹¹³ As a result, the Court concluded that the COVID-19 orders placed an undue burden on religious services and were therefore unconstitutional.

In other cases, courts have prevented the government from exercising overly coercive enforcement. For example, in Zimbabwe, the High Court ruled that security forces must enforce human rights while enforcing the country’s lockdown, thus emphasizing that many rights stay in place even during times of crisis.¹¹⁴ It also ordered police to stop harassing journalists covering the crisis.¹¹⁵ Likewise, the High Court of Kenya ordered the police to stop using excessive force to enforce the dusk-to-dawn curfew imposed to combat COVID-19 and ordered the Inspector General of the police to issue curfew enforcement guidelines within forty-eight hours. The order notwithstanding, many have since been killed by the Kenyan police.¹¹⁶

c) Demanding action

Courts can also demand that governments take affirmative steps to fight the pandemic to fulfill their constitutional obligations.

Indeed, we have found a number of cases in which courts have demanded that government and private actors take active steps to combat the pandemic. A series of dramatic cases come from Brazil. The country’s president, Jair Bolsonaro, has become notorious for consistently dismissing COVID-19 as the “little flu,”¹¹⁷ and urging people to go about their lives, because “more people will die from unemployment than the coronavirus.”¹¹⁸ To date, the Brazilian President (who himself caught the virus) has not issued nationwide stay-at-home orders, and keeps calling on local and regional authorities to remove their lockdowns. Indeed, Bolsonaro even fired his popular Health Minister who called for a lockdown and the implementation of World Health Organization standards.¹¹⁹ As a result of the inaction at the federal level, different Brazilian courts have been asked to impose lockdown orders in cities with precarious public health systems. On April 30, São Luís, in the State of Maranhão, became the first city in Brazil to be placed under a complete lockdown by means of a judicial decision. A local court, at the request of the public prosecutor, declared a lockdown order for a minimum of ten days, suspending all nonessential activities and limiting public gatherings of any kind, because the city’s public health system collapsed.¹²⁰ The country’s highest court also affirmed a decision by a lower court banning propaganda by the government opposing social distancing, and required the government to provide adequate information about the pandemic.¹²¹ In the opinion, Justice Barroso emphasized that “it is the duty of the Union to adequately inform the public about the circumstances that can endanger their lives, health, and safety,” and therefore that the government could not provide misinformation about the virus.¹²² Similarly, when the Bolsonaro government stopped publishing comprehensive statistics on COVID-19 cases and deaths,¹²³ the Supreme Court ordered the government to disclose all available data based on the principle of transparency.¹²⁴ And more recently, a federal judge from a district court in Brasília ordered President Bolsonaro to wear a mask in public.¹²⁵

Some courts, including the Zimbabwean High Court, have ordered the provision of personal protective equipment (PPE) for healthcare workers.¹²⁶ The Zimbabwean Court further ordered the government to set up more testing sites across the country, and to decrease the turn-around time for tests.¹²⁷ The Indian Supreme Court has likewise ordered the provision of PPE to doctors and healthcare workers.¹²⁸

Courts have also concerned themselves with stranded migrants. The Indian Supreme Court ordered the government to facilitate the return of migrant workers stranded throughout the country to their hometowns.¹²⁹ As part of its order, it issued detailed directives on how to bring the migrant workers home.¹³⁰ It further ordered the state not to prosecute migrants workers who violate the lockdown because they are trying to reach home as well as to provide migrants with details of employment and benefits schemes.¹³¹ Similarly, the Supreme Court of Nepal ordered the government to facilitate the return of migrant workers stranded abroad. The Court emphasized that the pandemic affected migrant workers disproportionately, and ordered the government to ensure that migrant workers are able to return home.¹³² In a different decision, the same court addressed the needs of another vulnerable group, the poor, and ordered the government to develop a plan to ensure the constitutional right of food to those who were affected by the lockdown.¹³³

Some courts have demanded the release of prisoners to curb the spread of the virus in prisons. In the Philippines, the Supreme Court on April 20 ordered lower court judges to release prisoners that are at risk of being infected by the coronavirus inside the Philippines’ overcrowded jails.¹³⁴ In response, lower courts released almost 10,000 prisoners to address fears over the spread of the virus within the national penitentiary system. In Argentina,¹³⁵ India,¹³⁶ and Uganda,¹³⁷ courts likewise ordered the release of prisoners. In the United States, courts have also got involved in the issue. (Note that although the US Constitution does not impose positive duties on the government as a general matter, there is an exception for people that are in the government’s care, like prisoners.¹³⁸) A federal judge in Ohio ordered that at-risk prisoners in Elkton Federal Correctional Institution, where a quarter of inmates tested positive, be moved, and the US Supreme Court declined to stay the order.¹³⁹ The New Jersey Supreme Court ruled that prisoners denied a request for COVID-19 release have a right to appeal.¹⁴⁰ Yet, other US state courts have refused to intervene.¹⁴¹

d) Cases of inaction

These examples suggest that courts may be willing to insist on legislative oversight, protect rights, and challenge government omissions in a public health context. It is important to note, however, that not every country has seen judicial involvement in crisis governance. In some cases, that might not be a cause for concern; for example, because the lockdown measures are proportional and remain unchallenged or because other oversight mechanisms are in place.

But there are also settings where the absence of judicial oversight might indicate an abuse of executive power. In this respect, it is telling that we found that only 27% of courts in authoritarian regimes got involved in the pandemic response, compared with 55% of courts in democratic regimes. Take the example of Venezuela, where President Maduro declared a state of alarm without consulting parliament, even though this is required by the Constitution.¹⁴² The current state of the rule of law in the country is such is that these constitutional violations are unlikely to be challenged, and even if they were, such challenges are unlikely to succeed.¹⁴³

We also found cases in which courts actively legitimized highly problematic executive action. To illustrate, in the Democratic Republic of Congo, President Félix Tshisekedi declared a state of emergency without consulting Parliament, even though the Constitution states that an emergency declaration has to made by the President “after coordination with the Prime Minister and the Presidents of the two Chambers.”¹⁴⁴ When the President of the Senate contested the emergency declaration before the Constitutional Court, the court simply upheld the emergency declaration.¹⁴⁵ While separation of powers concerns here are mitigated by the fact that Parliament subsequently voted to extend the declaration,¹⁴⁶ the Court ignored an explicitly-stated constitutional rule to grant the executive additional powers.

4.2. Legislative oversight

Legislatures also have been active in overseeing the executive. We note that the mere fact that there is a statutory basis for executive action does not necessarily amount to effective legislative oversight. In many cases, existing public health laws invoked to deal with the pandemic had to be stretched to meet the exigencies of the situation. For example, some of the laws invoked authorized governments to order quarantines, but quarantines usually involve a relatively small number of citizens who have been exposed to a disease in a particular geographic location. It is hard to imagine that legislators drafting such laws contemplated the need to lockdown entire countries for an extended period of time. Furthermore, in many cases, the laws are old, and so the current legislature may have nothing to do with it. Extreme examples are India and Pakistan, which both relied on a British colonial-era Law on Epidemic Diseases from 1897. In these cases, there was no legislative oversight at all.

In other cases, however, legislative oversight can be built into existing legislation, for example when it is activated only when the legislature declares an emergency or when it establishes some form of parliamentary oversight. To illustrate, in Japan, the Infectious Diseases Act requires that the Prime Minister report the governmental action plans to Congress immediately after a decision is made.¹⁴⁷ Likewise, in Germany, the Infektionsschutzgesetz allows the government to issue regulations; but these regulations have to be approved by Parliament.¹⁴⁸

Perhaps more meaningfully, legislatures can also enact brand new laws during a crisis. As noted, this has occurred in a little over half of the countries that relied on legislation as the legal basis for their COVID-19 pandemic response. They did so even though in many cases, legislatures and committees were unable to meet in person, or had to greatly modify their traditional practices to avoid being at risk.¹⁴⁹

Some have worried that emergency legislation passed in the midst of a global pandemic can be overly broad, as in the case of Hungary, where the Parliament voted to allow President Orbán to rule by decree for the foreseeable future.¹⁵⁰ Yet, as mentioned, in the majority of countries that drafted new legislation, it was specific to the current pandemic only and temporary in nature. Expiration dates ensure an ongoing role for the legislature: when the legislation expires, the legislature will have to renew it. The United Kingdom’s COVID-19 statute has been held up as a model in this regard, as it is specific to COVID-19 and grants additional executive powers for a twenty-one-day period only.¹⁵¹ Newly drafted legislation in Belgium, Slovenia, the Philippines, Senegal, and Taiwan also fits this mold.

When the pandemic response is based on the constitutional emergency scheme, legislatures are commonly involved in declaring or extending the state of emergency. The majority of democratic constitutions with emergency provisions require the legislature to approve the initial declaration of an emergency and to extend it, thereby placing an important check on gratuitous invocation. Constitutions can further demand legislative oversight over the emergency response. We acknowledge that this step in the modern constitutional scheme does not always amount to a genuine constraint, but it can be. To illustrate, observers have noted that one of the reasons why Poland did not declare a state of emergency is that it would have ensured ongoing legislative involvement, while this could be avoided by drafting legislation without an expiration date.¹⁵²

There are also other creative ways to ensure legislative oversight. Some countries, like France or Liberia, created special committees to oversee government during COVID-19.¹⁵³ In Sweden, an amendment to the Contagious Disease Act ensured that regulations passed under the act had to be approved by Parliament before they could take effect.¹⁵⁴

At the same time, we note that the need for a fast response meant that legislatures have necessarily found themselves playing catch-up. Even in democracies, initial action was sometimes taken without a clear legislative basis and a formal legal basis was only found later. Such scenarios capture what Vermeule calls “gray holes,” and illustrates Posner and Vermeule’s claim that the law sometimes runs out.¹⁵⁵ Take the example of Taiwan, which is seen as a democratic jurisdiction with one of the most effective responses to the virus. Even in Taiwan, the law ran out. The President did not declare a state of emergency under the Constitution, but instead limited foreign travel by students without clear authorization. In February 2020, the Legislature passed special legislation to validate these and other measures, but it was retroactive. It included, in Article 7, a very broad delegation, allowing the government to take whatever measures it found “necessary” to prevent and control the disease.¹⁵⁶ This open-ended, retrospective delegation was used to ban overseas travel, close Taiwanese primary and secondary schools, and allow government use of mobile phone data. While the response was highly effective, and there is no evidence of abuse, it is clear that there was insufficient legal authorization at the outset of the crisis, and that steps taken had to be legally validated ex post.

4.3. Subnational constraints

Another set of constraints on executives comes from local officials. This is particularly true when, as with a global pandemic, the nature of the crisis requires highly localized responses. Unlike 9/11 or the financial crisis of 2008, when national-level measures were paramount, a health pandemic requires mobilization of resources at every level of government, and cannot easily be treated by one level alone, especially in large countries.

Federalism allows for local variation, and we have seen a range of responses within federal systems. In some federal systems, subnational governments have imposed restrictions where federal governments have failed to act. In the United States, state governments have led the way in imposing stay-at-home orders, while the federal government’s initial response was limited to providing funds and organizing supplies. The same is true in Brazil, where state governors and city mayors have led the pandemic response and imposed more restrictive measures than the federal government would have liked. In fact, states and local governments repeatedly ignored calls by President Bolsonaro to remove their restrictions.¹⁵⁷ In Pakistan, Prime Minister Imran Khan refused to impose a national lockdown, saying it would ruin the economy. Yet, within a week, all its provincial governments imposed their own lockdowns.¹⁵⁸ In Russia, President Vladimir Putin initially downplayed the threat and did not involve himself in the initial pandemic response, presumably because he sought to isolate himself from any fallout of the crisis.¹⁵⁹ Instead, it was regional and municipal governments that responded.¹⁶⁰

Some federal states have witnessed more of a dialogue between the central government and subnational units. Germany offers the best example. German states (Bundesländer) are legally responsible for the pandemic response, as public safety falls within their powers.¹⁶¹ To coordinate the country’s response, the federal government and the Bundesländer reached an agreement, which set guidelines for lockdown and outlined further measures to be taken by the states.¹⁶² Yet, the agreement is not legally binding, and the pandemic measures implemented by the Bundesländer have therefore varied.¹⁶³ Most notable is Bavaria’s response: its parliament concluded that the federal infectious disease legislation was not sufficient, and passed its own infectious disease act that is more restrictive.¹⁶⁴ For the most part, however, German states and the federal government have cooperated with each other.

Other federal states, however, have witnessed a mostly national response. For example, in federal Belgium, the national government has led the pandemic response, even though some of its measures fall within the area of competencies of the provinces and regions. Indeed, the pandemic appears to have had a unifying effect on the usually divided country: it enabled the country to establish a full-fledged government for the first time in 454 days.¹⁶⁵ Also, in Switzerland, the Federal Council has taken the lead in the response and temporarily assumed powers normally reserved for the Swiss cantons.¹⁶⁶

Interestingly, we are also seeing local-level resistance in some unitary states. One example is Thailand, where some provincial governors resisted central government directives. Under the country’s emergency legislation that was the basis for the government’s pandemic response,¹⁶⁷ provinces are designated to supervise and execute the COVID-19 response, which gives them some discretion in what measures they impose; yet, they do not have the power to set their own response.¹⁶⁸ Nonetheless, when the government eased the nationwide lockdown, some governors ignored the move and continued to rely on the prior directives, thus continuing to close businesses and public spaces and banning the sale of alcoholic beverages.¹⁶⁹ Similarly, in Nicaragua, where President Daniel Ortega has downplayed and ignored the virus threat, some local leaders have taken it upon themselves to take action.¹⁷⁰ In Indonesia, several regional governments passed stricter regulations than the national government, prompting the President to issue a statement that “regional heads should not make policies of their own.”¹⁷¹ And in Colombia, Bogotá Mayor Claudia López resisted President Duque’s decision to allow some construction workers and manufacturers to return to work, prohibiting this in Bogotá,¹⁷² even without the formal authority to do so.¹⁷³

These examples show that emergency response is not simply the province of an unbound central government executive. Subnational units may have different local conditions and political circumstances that motivate their leaders to take steps that are out of sync with those of the national government. These constraints imposed by subnational units are not merely political; they can also be legal in nature. This is especially true in federal states, where subnational units have a reserve of authority that is constitutionally protected. Nowhere was this clearer than in Brazil, where the Supreme Federal Tribunal clarified that the President could not encroach upon states’ powers to impose lockdowns.¹⁷⁴ But even in unitary states, when local authorities bear responsibility for particular policy decisions, they will have some discretion that allows them to shape the response.

4.4. Exceptions: Democratic erosion

Not all executives have been subject to meaningful checks on their power. Outright dictatorships have used the pandemic as an opportunity to enhance their power and crack down on opponents.¹⁷⁵ To illustrate, China used the coronavirus pandemic to arrest major figures of the political opposition in Hong Kong, including eighty-one-year-old lawyer Martin Lee and the owner of the last remaining newspaper critical of the government.¹⁷⁶ Exhibit A for a case of democratic demise is Hungary, where Parliament passed a law that allows Prime Minister Victor Orbán to rule by decree for the foreseeable future.¹⁷⁷ Orbán can renew his own decrees indefinitely. Parliament can withdraw the delegation, but only with a two-thirds vote. Hungarian commentators have called this the end of the country’s democracy, analogizing to Hitler’s notorious Enabling Act that effectively ended the Weimar Republic.¹⁷⁸ Among its other features, the law introduces a new crime of distributing fake news during the crisis, which has led to dozens of arrests of government critics.¹⁷⁹

At this time, it is too soon to evaluate whether and to what extent the pandemic has eroded democracy; such an assessment may take some years. Yet we believe that it is to some extent possible to differentiate coercive measures genuinely needed to fight the coronavirus from those that serve to consolidate power. Here, we provide a diagnostic account.

To begin, we acknowledge that it is important to recognize that mere illegality at the moment of response is not a sufficient basis to condemn all measures. Several of the immediate responses to the pandemic involved the exercise of governmental powers that were not legal at the moment they were exercised.¹⁸⁰ We previously discussed the example of Taiwan, where legislation was enacted with retroactive application. One might view such cases as analogous to steps taken by dictators such as Hungary’s Orbán.¹⁸¹ But we disagree. It is in the nature of emergencies that the necessary steps are not always contemplated in advance, which means that the requisite powers may not already be authorized in existing law.¹⁸² As long as these initial grey holes are swiftly filled, they do not offer a major cause for concern.

In our view, an assessment should not focus on the formal legality or illegality of measures taken at the moment the crisis hits. That would put too much weight on the presence of mind of prior legislators and constitution-makers to anticipate the new crisis. One would not want to condemn a jurisdiction for taking truly necessary steps to preserve itself, simply on the basis that the existing order had not anticipated them. Indeed, if we are to limit a government’s tools only to those in existence at the time the emergency arises, we are holding today’s citizens hostage to the foresight of prior legislators and constitution-makers. Some countries might have an effective legislative framework in place, but others may not. There is no moral reason to let citizens in the latter type of countries suffer unnecessarily. What should give cause for concern, however, is if any initial gap in legal authorization is not cured. In our analysis of our survey, we found some ten countries—China, Cuba, Cameroon, Belarus, Saudi Arabia, Sudan, Cambodia, Rwanda, Laos, and Tanzania—in which the legal basis of the response remains unclear. But notably, none of these are genuine democracies.

At a deeper level, rule of law principles can help us assess the quality of the response, beyond the question of initial legality. We focus on several principles that can be used to evaluate a country’s legal response. First, was the response temporally limited? This ancient principle of emergency rule remains a powerful one.¹⁸³ We have seen that much of the new legislation that is being passed is temporary. Yet Nigeria, Poland, Hungary, and Russia are all among countries that passed new laws that give the government additional powers but that are not temporarily limited. These cases are potential cause for concern.

A second principle is that of judicial and legislative oversight. We have elaborated the powerful and important role these actors have played in many countries during the COVID-19 panic. An emergency scheme that denies the possibility of oversight is one in which the risk of democratic backsliding is great. Among the countries that have not had any role for the legislature or the courts are Thailand, Zambia, Turkey, and China. These are all either authoritarian or at-risk regimes.

A third principle is whether the response is applied in a non-discriminatory fashion. Enforcement should be applied more or less equally. This is not the case when political opponents of the regime are specifically targeted. Hungary, Bolivia, Cambodia, Turkey, and China have seen instances of targeting; but most other countries have not. Where the opposition is targeted, it is evidence of pretextual use of the virus response to achieve other unrelated ends.

These criteria easily allow us to distinguish Hungary, where measures violated all of these rule-of-law principles, from other countries in which the response conformed to them. We do not, however, have the ability to determine whether or not there are countries that might ultimately see democratic erosion due to factors that were triggered by the pandemic. For example, there is some possibility of a global economic recession, which could give rise to extremist forces that end up eroding democracy in some countries. The highly unequal impact of the virus is likely to exacerbate gaps between rich and poor, which could in turn put pressure on democratic institutions. Future research will have to take up the question whether and how the pandemic has affected democracy in the long run.

5. Conclusion: Madisonian crisis governance

Our empirical findings suggest that, at least in democratic countries, executives have not become “unbound” during this current crisis. Instead, what we observe, in many cases, is ongoing interaction among branches that collectively determines the response. In some cases, these interactions have played out as confrontations, such as when courts impose or remove a lockdown, the legislature refuses to grant certain powers to the executive, or subnational units set their own pandemic response in defiance of the national government. In other cases, such interactions have taken the form of collaboration, such as when legislatures pass new laws in consultation with the executive, courts make minor adjustments to the pandemic response, or when subnational governments are involved in setting the national response.

Regardless of their exact form, these interactions among branches and levels of government represent checks and balances in action, and are generally Madisonian. When courts insist on legislative authorization for particular steps, they are not only insisting upon the separation of powers scheme set out in the constitution, but also facilitating dialogue between the executive and the legislature. When they tell the government to moderate the pandemic response in light of constitutional rights or conversely order the government to impose a lockdown, they are contributing to coordinate construction of the constitution. When legislatures involve themselves by enacting new laws, they are playing the Madisonian role of limiting the executive to measures adopted by law. And when subnational governments pressure a national executive to take a more vigorous response or implement their own response, they not only provide valuable information on local conditions to the national government, but also ensure the continued operation of vertical checks and balances.

All of these Madisonian checks can protect both against central executive over-reach, but also against rights abuses that take the form of under-reach.¹⁸⁴ When a government refuses to take action to protect people, it can endanger the right to life, just as a total lockdown infringes on rights to movement. When courts order the government to impose a lockdown, of course, they are not constraining the government from acting as in the classic Madisonian framing—but they are reining in discretion of “under-reaching” executives.¹⁸⁵ A system of checks and balances among government institutions can help determine the right balance between the individual interest at stake and broader social concerns.

While we ourselves do not assert that there is a single universally optimal response to a pandemic, we also believe that a particular society is likelier to come closer to its optimal response through the involvement of multiple branches of government, with an executive that is bound to interact with other branches of government. These branches have different epistemic bases and distinct institutional advantages. Courts are institutionally well equipped to demand well-reasoned justifications, and to identify individual interests that may suffer as a result of collective policies. This review of responses taken by executives can ensure that measures are not unduly liberty-restricting, and are publicly justified with evidence. Legislatures provide distinct advantages as arenas for policy debate, and for being the ultimate loci of democratic legitimacy in a representative democracy.¹⁸⁶ And subnational governments are uniquely able to calibrate policies to local needs, conditions, and preferences.

Of course, interactions among multiple institutions introduce complexities, as the response may take longer to develop and may be altered a number of times. Yet, the large literature on democratic deliberation suggests that there may be a number of discrete advantages to dialogue and contestation among multiple actors beyond the protection of rights.¹⁸⁷ First, it may produce better reason-giving, forced by the back and forth between different branches. Second, the fact that multiple branches of government were involved in formulating the response might demonstrate a consensus among institutions with their own distinct bases of legitimacy.¹⁸⁸ Third, it is possible that any single actor is more likely to be wrong, and that when multiple actors are involved, the risk of a colossal mistake is lower. Judicial review and legislative oversight can help to identify blind spots in governmental decision-making, as well as to force careful consideration to ensure that errors are not simply repeated because of inertia.¹⁸⁹

These arguments apply with perhaps greater force to crisis governance, at least in emergencies like a pandemic or a natural disaster. A pandemic response that reflects the input of multiple branches is likely to be better justified and better reasoned.¹⁹⁰ The pandemic has posed many unknowns to policymakers. The fact that information is widely dispersed, and different parts of the country and population have different needs, means that no single institution is likely to have a monopoly on ideas as to how to resolve a health pandemic. Indeed, there is arguably no single answer to the question of the proper intensity of a lockdown. The balance between freedoms and public health is one on which societies might have legitimate differences, and the disease itself continues to act in unpredictable ways. The best we may be able to hope for, then, is that the response is seen as legitimate, well-reasoned, and avoiding major failure.

We are grateful to our team of research assistants who helped us compile our global survey on COVID-19 responses: Apinop Atipiboonsin, Alexander Heldman, Shih-An Wang, Judy Baho, Bethany Labrinos, Gregory Eng, Anthony Jadick, Marie Beudels, Joao Archegas, Franz Oberarzbacher, Lisa Bennett, Maheema Haque, Katherine Krudys, Nicolas R. Pollack, and Ilana Stone.

Footnotes

1

See, e.g., Joseph J. Amon & Margaret Wurth, A Virtual Roundtable on COVID-19 and Human Rights with Human Rights Watch Researchers, 22 Health & Hum. Rts. 399 (2020).

2

Adam Chilton, Kevin Cope, Charles Crabtree, & Mila Versteeg, Red and Blue America Agree that Now Is the Time to Violate the Constitution, The Atlantic (Mar. 25, 2020),

www.theatlantic.com/ideas/archive/2020/03/coronavirus-america-constitution/608665/; see generally Darren W. Davis & Brian D. Silver, Civil liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America, 48 Am. J. Pol. Sci. 28 (2004).

3

Rachel Kleinfeld, Do Authoritarian or Democratic Countries Handle Pandemics Better?, Carnegie Endowment for Int’l Peace (Mar. 31, 2020), https://carnegieendowment.org/2020/03/31/do-authoritarian-or-democratic-countries-handle-pandemics-better-pub-81404; Kenneth Roth, How Authoritarians Are Exploiting the COVID-19 Crisis to Grab Power, N.Y. Rev. Books (Mar. 31, 2020), www.nybooks.com/daily/2020/03/31/how-authoritarians-are-exploiting-the-covid-19-crisis-to-grab-power/.

4

See, e.g., Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2011) [hereinafter Posner & Vermeule, Executive Unbound]; Eric A. Posner & Adrian Vermeule, Terror in the Balance (2007) [hereinafter Posner & Vermeule, Terror in the Balance]; see also infra notes 16–19 and accompanying text.

5

See, e.g., Posner & Vermeule, Executive Unbound,supra note 4, at 10.

6

Carl Schmitt, The Concept of the Political (George Schwab. trans., Rutgers University Press 1976) (1932); Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans., 2005) (1922) [hereinafter Schmitt, Political Theology]. SeeOren Gross & Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice 162–9 (2006); Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6 U. Pa. J. Const. L. 1001, 1009–14 (2004).

7

Carl Schmitt, Die Diktatur (Michael Hoelzl & Graham Ward trans., Polity Press 2014) (1922); John McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology 147–56 (1997); The Challenge of Carl Schmitt (Chantal Mouffe ed., 1999).

8

Schmitt, Political Theology, supra note 6, at 7.

9

Id. at 1 (“Sovereign is he who decides on the state of exception”).

10

Clinton L. Rossiter, Constitutional Dictatorship 306 (1948).

11

Id. at 314.

12

David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency 37 (2006) (discussing Rossiter).

13

Giorgio Agamben, State of Exception (Kevin Attell trans., Chicago Univ. Press 2005).

14

See alsoElaine Scarry, Thinking in an Emergency (2011).

15

See Anastasia Berg, Giorgio Agamben’s Coronavirus Cluelessness, Chron. Higher Ed. (Mar. 23, 2020), www.chronicle.com/article/Giorgio-Agamben-s/248306.

16

SeePosner & Vermeule, Executive Unbound,supra note 4; Posner & Vermeule, Terror in the Balance, supra note 4; Eric Posner & Adrian Vermeule, Emergencies, Tradeoffs, and Deference, inCivil Rights and Security 23 (David Dyzenhaus ed., 2017); Eric Posner & Adrian Vermeule, Accommodating Emergencies, 56 Stan. L. Rev. 605 (2003); Eric Posner & Adrian Vermeule, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008, 76 U. Chi. L. Rev. 1613 (2009) [hereinafter Posner & Vermeule, Crisis Governance]; Eric Posner & Adrian Vermeule, Emergencies and Democratic Failure, 92 Va. L. Rev. 1091 (2006); Eric Posner & Adrian Vermeule, Emergencies and Political Change: A Reply to Tushnet, 56 Stan. L. Rev. 1593 (2004); Eric Posner & Adrian Vermeule, Originalism and Emergencies: A Reply to Lawson, 87 B.U. L. Rev. 313 (2007); Eric Posner & Adrian Vermeule, The Credible Executive, 74 U. Chi. L. Rev. 865 (2007); see also Adrian Vermeule, Emergency Lawmaking after 9/11 and 7/7, 75 U. Chi. L. Rev. 1155 (2008); Adrian Vermeule, Self-Defeating Proposals: Ackerman on Emergency Powers, 75 Fordham L. Rev. 631 (2006).

17

Eric A. Posner, The Executive Unbound, Pandemic Edition, Lawfare Blog (Mar. 23, 2020), www.lawfareblog.com/executive-unbound-pandemic-edition.

18

Posner & Vermeule, Terror in the Balance,supra note 4, at 4–5.

19

Posner & Vermeule, Crisis Governance, supra note 30, at 1614.

20

Id. at 1654–5.

21

Posner & Vermeule, Terror in the Balance, supra note 4, at 4.

22

Posner & Vermeule, Crisis Governance, supra note 16, at 1659.

23

Posner & Vermeule, Terror in the Balance, supra note 4, at 47.

24

Id. at 47.

25

Id. at 48.

26

Id.

27

Id. at 16.

28

Posner & Vermeule, Executive Unbound,supra note 4, at 4.

29

Saikrishna B. Prakash & Michael D. Ramsey, The Goldilocks Executive, 90 Tex. L. Rev. 973, 1000 (2012); David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency 35 (2006).

30

Bruce Ackerman, The Decline and Fall of the American Republic 72 (2010).

31

See, e.g., Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004).

32

Bruce Ackerman, The Emergency Constitution, 113 Yale L. J. 1029, 1068 (2003).

33

Scheppele, supra note 6.

34

Samuel Issacharoff & Richard Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime, 5 Theoretical Inq. L. 1, 2 (2004); cf. Cass R. Sunstein, Minimalism at War, 2004 Sup. Ct. Rev. 47 (2004).

35

Scheppele, supra note 6, at 1006.

36

Aziz Huq, Binding the Executive (by Law or by Politics), 79 U. Chi. L. Rev. 777, 782–3 (2012); Richard A. Pildes, Law and the President, 125 Harv. L. Rev. 1381, 1402 (2012); Prakash & Ramsey, supra note 29, at 996.

37

See, e.g., Kim Lane Scheppele, North American Emergencies: The Uses of Emergency Powers in the United States and Canada, 4 Int’l J. Const. L. 213 (2006); Kim Lane Scheppele, Other People’s PATRIOT Acts: Europe’s Response to September 11, 50 Loyola L. Rev. 89 (2004).

38

Rossiter,supra note 10, at 306.

39

Data on file with authors; see also Christian Bjørnskov & Stefan Voigt, The Architecture of Emergency Constitutions, 16 Int’l J. Const. L. 101, 101 (2018).

40

S. Afr. Const., 1996, § 37.

41

See, e.g., India Const., art. 356.

42

Brian Loveman, The Constitution of Tyranny: Regimes of Exception in Spanish America (1993);see also Arend Lijphart, Emergency Powers and Emergency Regimes: A Commentary, 18 Asian Survey 401, 401 (1978).

43

Gyan Prakash, Emergency Chronicles: Indira Gandhi and Democracy’s Turning Point (2018).

44

Robert Paxton, The Anatomy of Fascism 128 (2004).

45

Id. at 107.

46

Coding COVID, Comp. Const. Project,https://comparativeconstitutionsproject.org/data/coding_COVID-paper_final.xlsx (last visited May 11, 2021).

47

1958 Const., art. 16 (Fr.); Constitución Española [C.E.], B.O.E. n. 311, art. 16, 116 Dec. 29, 1978 (Spain).

48

See, e.g., Constituição da República Portuguesa [C.R.P.], art. 289, translation at https://dre.pt/constitution-of-the-portuguese-republic.

49

Zachary Elkins & Tom Ginsburg, Characteristics of National Constitutions, Version 3.0. Comparative Constitutions Project (2021), comparativeconstitutionsproject.org.

50

SeeAlan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (2018).

51

See, e.g., Constitución Política de Colombia [C.P.], art. 214.6.

52

Compare Hum. Rts. Comm., General Comment 29: States of Emergency (Article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11, at 3, 4 (2001) with Hum. Rts. Comm., General Comment 27: Freedom of Movement (Article 12), U.N. Doc. CCPR/C/21/Rev.1/Add.9, at 11, 14 (1999).

53

John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of Emergency Powers, 2 Int’l J. Const. L. 210, 216–17 (2004).

54

Robert Alexy, A Theory of Constitutional Rights (2010); Aharon Barak, Proportionality: Constitutional Rights and their Limitations (2012); Proportionality: New Frontiers, New Challenges (Vicki C. Jackson & Mark Tushnet eds., 2017).

55

Ferejohn & Pasquino, supra note 53, at 216–17, 236–7.

56

Id. at 217, 236.

57

Id. at 236–7.

58

See, e.g., A v. Secretary of State for the Home Department [2004] U.K.H.L. 56; [2005] 2 A.C. 68, 97.

59

Oren Gross, Chaos and Rules: Should Responses to Violent Crisis Always Be Constitutional?, 112 Yale L. J. 1011, 1090 (2003); Mark Tushnet, Defending Korematsu? Reflections on Civil Liberties in Wartime, 2003 Wisc. L. Rev. 273 (2003).

60

Korematsu v. United States, 323 U.S. 214 (1944).

61

Posner & Vermeule, Terror in the Balance, supra note 4, at 17–18; Schmitt, Political Theology, supra note 6, at 9–10; see alsoStone,supra note 54.

62

Posner & Vermeule, Terror in the Balance,supra note 4, at 170.

63

John Ferejohn, Financial Emergencies, inConstitutions in Times of Financial Crisis 18, 23 (Tom Ginsburg et al. eds., 2019); Tom Ginsburg et al., Introduction: Liberal Constitutions during Financial Crises, inConstitutions in Times of Financial Crisis 1, 7 (Tom Ginsburg et al. eds., 2019); Georg Vanberg & Mitu Gulati, Financial Crises and Constitutional Compromise, inConstitutions in Times of Financial Crisis 117, 141–2 (Tom Ginsburg et al. eds., 2019); but see Mark D. Rosen, Legislatures and Constitutions in Times of Severe Financial Crisis, inConstitutions in Times of Financial Crisis 71 (Tom Ginsburg et al. eds., 2019); Mila Versteeg, Can Rights Combat Economic Inequality?, 133 Harv. L. Rev. 2017, 2036, 2039–40 (2020).

64

Posner & Vermuele, Crisis Governance, supra note 16, at 1614.

65

See, e.g., John M. Barry, The Great Influenza 51 (2004).

66

Kenneth Wiltshire, Federalism and Policy Implementation, inOxford Research Encyclopedia of Politics (William R. Thompson ed., 2020).

67

See Sujit Choudhry & Nathan Hume, Federalism, Devolution and Secession: From Classical to Post-conflict Federalism, inResearch Handbook on Comparative Constitutional Law 356, 358 (Rosalind Dixon & Tom Ginsburg eds., 2010).

68

Claude Berrebi & Jordan Ostwald, Earthquakes, Hurricanes and Terrorism: Do Natural Disasters Incite Terror?, 149 Pub. Choice 383 (2011).

69

But see William Stuntz, Local Policing after the Terror, 111 Yale. L.J. 1637 (2002); Matthew Waxman, National Security Federalism in the Age of Terror, 61 Stan. L. Rev 289, 295 (2012).

70

Amartya Sen, Listening as Governance, Sixteen (Apr. 10, 2020), https://sixteens.fr/2020/04/10/listening-as-governance-by-amartya-sen/; see alsoAmartya Sen, Poverty and Famines: An Essay on Entitlement and Deprivation 78–85 (1983).

71

Sen, Listening as Governance, supra note 70.

72

All the country questionnaires on which our data are based are available upon request.

73

Coronavirus Government Response Tracker, Blavatnik Sch. Gov’t Univ. Oxford,https://www.bsg.ox.ac.uk/research/research-projects/coronavirus-government-response-tracker (last visited Oct. 21, 2020); COVID-19 Civic Freedom Tracker, Int’l Ctr. for Not-for Profit L.,www.icnl.org/covid19tracker/; States of Emergencies in Response to the Covid-19 Pandemic, Ctr. for Civ. & Pol. Rts.,https://datastudio.google.com/u/0/reporting/1sHT8quopdfavCvSDk7t-zvqKIS0Ljiu0/page/dHMKB (last visited Sept. 15, 2020).

74

Global Overview of Covid-19 Impact on Elections, Int’l Idea (Mar. 18, 2020), www.idea.int/news-media/multimedia-reports/global-overview-covid-19-impact-elections.

75

See, e.g., Matt Pollard, Mathilde Laronche, & Viviana Grande, COVID-19 Symposium: The Courts and Coronavirus (Part II), Opinio Juris (Apr. 3, 2020), http://opiniojuris.org/2020/04/03/covid-19-symposium-the-courts-and-coronavirus-part-ii/.

76

Ittai Bar-Siman-Tov, Parliamentary Activity and Legislative Oversight during the Coronavirus Pandemic: A Comparative Overview, B. Ilan U. Fac. L. Res. Paper No. 20-06 (2020), https://ssrn.com/abstract=3566948.

77

See Alejandro Cortés-Arbeláez, Pandemic and States of Emergency: A Comparative Perspective, ICONnect Blog (May 22, 2020), www.iconnectblog.com/2020/05/pandemic-and-states-of-emergency-a-comparative-perspective/.

78

Tunisia Const. 2014, art. 70, § 2; Morocco Const., 2011, art. 81; 1975 Syntagma [Syn.] [Constitution], art. 44 (Greece); Art. 77 Costituzione [Const.] (It.).

79

Tushar Behl, How the Bombay High Court Is Changing Force Majeure Amid COVID-19, Jurist (May 14, 2020), www.jurist.org/commentary/2020/05/tushar-behl-force-majeure-india-covid19/.

80

See, e.g., Chuanran Bing Fangzhi Fa [Communicable Disease Control Act], art. 58 (Taiwan), https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050001 (last visited May 4, 2021); [Infectious Disease Control and Prevention Act], art. 47 (S. Kor.), https://bit.ly/3fabjCq (last visited May 4, 2021); Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (Infektionsschutzgesetz-IfSG) [Infectious Disease Protection Act], art. 16 (Ger.).

81

See, e.g., Biosecurity Act 2015 (Cth), www.legislation.gov.au/Details/C2020C00127 (Austl.).

82

See also Christian Bjørnskov & Stefan Voigt, This Time Is Different? On the Use of Emergency Measures During the Corona Pandemic (ILE Working Paper No. 36, University of Hamburg, Institute of Law and Economics (ILE), 2020) (aggregating constitutional and statutory emergency declarations and finding ninety-nine in total).

83

The Pandemic Response and Management Bill, No. 6, Kenya Gazette Supplement 44 (2020), www.parliament.go.ke/sites/default/files/2020-04/Pandemic%20Response%20and%20Management%20Bill%2C%202020.pdf.

84

In the Name of Covid-19, Namibian (May 15, 2020), www.namibian.com.na/91085/read/In-the-Name-of-Covid-19.

85

See, e.g., Issacharoff & Pildes, supra note 34; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).

86

Constitutional Review of Decision No. 01/15 of the Government of the Republic of Kosovo, of 23 March 2020, https://gjk-ks.org/en/decision/vleresim-i-kushtetutshmerise-se-vendimit-nr-01-15-te-qeverise-se-republikes-se-kosoves-te-23-marsit-2020/ (Kos.).

87

Kosovo Const. 2008, art. 55.

88

Supreme Court of Pakistan, June 8, 2020, Suo Motu Case No. 1 of 2020, Suo Moto Action Regarding Combating the Pandemic of Corona Virus (Covid-19), at 2, www.supremecourt.gov.pk/downloads_judgements/s.m.c._1_2020_08062020.pdf (Pak.).

89

Id. at 5–6.

90

Constitutional Chamber of the Supreme Court of Justice of El Salvador, Habeas Corpus, no. 148–2020, Mar. 26, 2020, www.jurisprudencia.gob.sv/PDF/HC148-2020.PDF (El Sal.).

91

Bianca Selejan-Gutan, Romania in the Covid Era: Between Corona Crisis and Constitutional Crisis, Verfassungsblog (May 21, 2020), https://verfassungsblog.de/romania-in-the-covid-era-between-corona-crisis-and-constitutional-crisis/.

92

Ministry Interior Czech Rep., State of Emergency (Mar. 13, 2020), www.mvcr.cz/mvcren/article/state-of-emergency.aspx.

93

Aureliusz M. Pedziwol, COVID-19 Restrictions Eased in the Czech Republic: “Long Live Freedom!,”Deutsche Welle (Apr. 27, 2020), www.dw.com/en/covid-19-restrictions-eased-in-the-czech-republic-long-live-freedom/a-53262812.

94

Estado de Emergencia Nacional de la Pandemia por COVID-19, Decreto No. 18, Diario Oficial 99, Tomo 427 (May 16, 2020), www.diariooficial.gob.sv/diarios/do-2020/05-mayo/16-05-2020.pdf (El Sal.); see also El Salvador Supreme Court Orders State of Emergency Suspended, N.Y. Times (May 18, 2020), https://nyti.ms/2QH2Zlv.

95

Sala de lo Constitucional de la Corte Suprema de Justicia, Inconstitucionalidad, 63–2020 (May 18, 2020), www.jurisprudencia.gob.sv/portal/apls/2020/05/I_63-2020.pdf (El Sal.).

96

Ley de Protección, Civil, Prevención y Mitigación de Desastres, Decreto No. 777, Diario Oficial 160, Tomo 368 (Aug. 18, 2005), https://proteccioncivil.gob.sv/download/ley-de-proteccion-civil-prevencion-y-mitigacion-de-desastres-2/ (El Sal.).

97

Id.

98

Peter Fabricius, Nowhere to Run as Lesotho’s Prime Minister Faces an Undignified Exit, Daily Maverick (Apr. 30, 2020), www.dailymaverick.co.za/article/2020-04-30-nowhere-to-run-as-lesothos-prime-minister-faces-an-undignified-exit/.

99

Ecuador Const. 2008, art. 166.

100

Roger Velez, Corte Constitutional Hace Exhortos Sobre Estado de Excepción por covid-19 [Constitutional Court Appeals State of Exception for Covid-19], El Comercio (Mar. 20, 2020), www.elcomercio.com/actualidad/corte-constitucional-exhortos-excepcion-covid.html.

101

Andrés Cervantes, Ecuador: Constitutionalism and Covid-19, Verfassungsblog (May 9, 2020), https://verfassungsblog.de/ecuador-constitutionalism-and-covid-19/.

102

Id.

103

Malawi Court Indefinitely Bars Virus Lockdown, News24 (Apr. 28, 2020), www.news24.com/Africa/News/malawi-court-indefinitely-bars-virus-lockdown-20200428.

104

Supreme Court of Pakistan, May 18, 2020, Suo Moto Case No. 1 of 2020, Suo Moto Action Regarding Combating the Pandemic of Corona Virus (COVID-19), at 4, www.supremecourt.gov.pk/downloads_judgements/s.m.c._01_2020_18052020.pdf (Pak.).

105

Id. at 5.

106

Holger Hestermeyer, Coronavirus Lockdown-Measures Before the German Constitutional Court, Const. Net Blog (Apr. 30, 2020), http://constitutionnet.org/news/coronavirus-lockdown-measures-german-constitutional-court.

107

Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Apr. 15, 2020, 1 BvR 828/20, www.bverfg.de/e/rk20200415_1bvr082820.html (Ger.).

108

Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Apr. 29, 2020, 1 BvQ 44/20, www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/04/qk20200429_1bvq004420.html (Ger.).

109

Mirna Sadikovic & Ron Synovitz, Coronavirus In Court: Bosnia’s Age-Based Lockdowns Are Ruled Discriminatory, Radio Free Eur. Radial Liberty (Apr. 24, 2020), www.rferl.org/a/coronavirus-in-court-bosnia-s-age-based-lockdowns-are-ruled-discriminatory/30574453.html.

110

Paul Richardson, South African Court Declares Lockdown Rules Unconstitutional, Bloomberg (June 2, 2020), www.bloomberg.com/news/articles/2020-06-02/south-african-court-rules-lockdown-rules-invalid-state-says.

111

Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (per curiam).

112

Id. at 613.

113

Id.

114

Columbus Mavhunga, Rights Groups Welcome Court Ban on Brutal Zimbabwe COVID-19 Lockdown, Voice of America (Apr. 15, 2020), www.voanews.com/africa/rights-groups-welcome-court-ban-brutal-zimbabwe-covid-19-lockdown.

115

Covid-19: Zimbabwe Court Orders Police to Stop Harassing Journalists, Big News Network (Apr. 21, 2020), www.bignewsnetwork.com/news/264761280/covid-19-zimbabwe-court-orders-police-to-stop-harassing-journalists.

116

Rael Ombuor & Max Bearak, “Killing in the Name of Corona”: Death Toll Soars from Kenya’s Curfew Crackdown, Wash. Post (Apr. 16, 2020), https://wapo.st/2RfwXgd.

117

Simone Preissler Iglesias, Martha Viotti Beck, & Samy Adghirni, “Little Flu” Can’t Hurt Him: Why Bolsonaro Still Shuns Lockdowns, Bloomberg (Mar. 30, 2020), https://bloom.bg/3aTGsbZ.

118

Fabio Murakawa, Bolsonaro: Vai Morrer Muito Mais Gente Por Uma Economia Que Não Anda Do Que Por Coronavirus [Bolsonaro: Many More People Will Die for a Stagnant Economy than for Coronavirus], Valor (Mar. 17, 2020), https://valor.globo.com/politica/noticia/2020/03/17/bolsonaro-vai-morrer-muito-mais-gente-por-uma-economia-que-no-anda-do-que-por-coronavrus.ghtml.

119

See Colm Quinn, Bolsonaro Fires Brazil’s Health Minister as Infections Grow, Foreign Pol’y (Apr. 17, 2020), https://foreignpolicy.com/2020/04/17/jair-bolsonaro-brazil-fires-heath-minister-mandetta-coronavirus-inections-grow/.

120

Maranhao in Brazil Becomes First Region to Mandate a Complete Coronavirus Lockdown, ABC News (May 5, 2020), https://ab.co/3us5UNe.

121

Anthony Boadle, Bolsonaro Visits Market to Press Need to Keep Brazil Going During Pandemic, Reuters (Mar. 29, 2020), https://reut.rs/3eIBxLS.

122

Mônica Bergamo, Barroso Veta Publicidade Do Governo Que Diz Que “O Brasil Não Pode Parar” [Barroso Veta, Propaganda of Government, Says “Brazil Can’t Stop”], Folha de S. Paulo (Mar. 31, 2020), https://www1.folha.uol.com.br/colunas/monicabergamo/2020/03/barroso-veta-publicidade-do-governo-que-diz-que-o-brasil-nao-pode-parar.shtml.

123

Ernesto Londoño, Furious Backlash in Brazil After Ministry Withholds Coronavirus Data, N.Y. Times (June 8, 2020), https://nyti.ms/3uacpEt.

124

STF, ADPF 690, Relator: Min. Alexandre de Moraes, 8.6.2020, www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADPF690cautelar.pdf (Braz.). The Public Health Minister reportedly put the statistics back online immediately. Terrence McCoy, Under Court Order, Brazilian Government Puts Coronavirus Data Back Online, Wash. Post (June 10, 2020), https://wapo.st/2SiwB8Z.

125

Rodrigo Pedroso & Larry Register, Brazil Judge Orders President Jair Bolsonaro to Wear a Face Mask in Public, CNN (June 24, 2020), https://cnn.it/3t8RHna.

126

Columbus Mavhunga, Rights Groups Welcome Court Ban on Brutal Zimbabwe COVID-19 Lockdown, Voice of America (Apr. 15, 2020), www.voanews.com/africa/rights-groups-welcome-court-ban-brutal-zimbabwe-covid-19-lockdown.

127

Court Orders Zimbabwe to Protect Medics from the Coronavirus, Eyewitness News (Apr. 15, 2020), https://ewn.co.za/2020/04/15/court-orders-zimbabwe-to-protect-medics-from-the-coronavirus.

128

Jerryl Banait v. Union of India, (2020) W.P.(C). Diary No.10795/2020, https://main.sci.gov.in/supremecourt/2020/10795/10795_2020_0_5_21591_Order_08-Apr-2020.pdf (India).

129

Tahira Mohamedbhai, India Supreme Court Orders Government to Transport Displaced Migrant Workers Home Within 15 Days, Jurist (June 10, 2020), www.jurist.org/news/2020/06/india-supreme-court-orders-government-to-transport-displaced-migrant-workers-home-within-15-days/.

130

Krishnadas Rajagopal, Coronavirus Lockdown: Migrant Workers Should Not Be Prosecuted, Says Supreme Court, Hindu (June 9, 2020), www.thehindu.com/news/national/coronavirus-lockdown-migrant-workers-should-not-be-prosecuted-says-supreme-court/article31784841.ece.

131

Id.

132

Hardik Subedi, How Nepal’s Supreme Court Upheld Dignity of Migrant Workers Without Diluting COVID Fight, Wire (Apr. 28, 2020), https://thewire.in/law/nepal-supreme-court-migrant-workers.

133

Tika R. Pradhan, Supreme Court Orders Government to Ensure Vulnerable People’s Right to Food, Kathmandu Post (Apr. 1, 2020), https://kathmandupost.com/national/2020/03/30/supreme-court-orders-government-to-ensure-vulnerable-people-s-right-to-food.

134

OCA Circular No. 91–2020, Re: Release of Qualified Persons Deprived of Liberty, Republic of the Philippines Supreme Court, Apr. 20, 2020, http://sc.judiciary.gov.ph/11234/ (Phil.).

135

Sylvia Colombo, Liberação de presos devido à Covid-19 ameaça lua de mel de Fernández e Argentina [Release of Prisoners Due to Covid-19 Threatens Fernández and Argentina’s Honeymoon], Folha de S. Paulo (May 6, 2020), www1.folha.uol.com.br/mundo/2020/05/liberacao-de-presos-devido-a-covid-19-ameaca-lua-de-mel-de-fernandez-e-argentina.shtml.

136

In re: Contagion of Covid 19 Virus in Prisons, Suo Motu Writ Petition (C) No. 1/2020, https://main.sci.gov.in/supremecourt/2020/9761/9761_2020_1_8_21570_Order_23-Mar-2020.pdf (India).

137

Alice McCool, Court Orders Release of Jailed LGBT+ Ugandans After Coronavirus Charges Dropped, Reuters (May 6, 2020), https://reut.rs/33brxWs.

138

Estelle v. Gamble, 429 U.S. 97 (1976).

139

Robert Barnes, Supreme Court Won’t Stop Ohio Order for Prisoners to Be Moved or Released Because of Coronavirus, Wash. Post (May 26, 2020), https://wapo.st/3vEt4Al.

140

Colleen O’Dea, NJ Supreme Court Gives Prisoners Right to Appeal if Turned Down for COVID-19 Release, NJ Spotlight (Jun. 5, 2020), www.njspotlight.com/2020/06/nj-supreme-court-gives-prisoners-right-to-appeal-if-turned-down-for-covid-19-release/.

141

See, e.g., Deborah Becker, Mass. High Court Refuses to Release Convicted Prisoners Because of COVID-19, WBUR (Jun. 2, 2020), www.wbur.org/news/2020/06/02/covid-19-coronavirus-prisoner-release-sjc.

142

Jesús María Casal Hernández & Mariela Morales Antoniazzi, States of Emergency without Rule of Law: The Case of Venezuela, Verfassungsblog (May 22, 2020), https://verfassungsblog.de/states-of-emergency-without-rule-of-law-the-case-of-venezuela/.

143

Id.

144

Congo Const. 2006, art. 85.

145

La Cour constitutionnelle, siégeant en matière d’inconstitutionnalité et de conformité à la Constitution [The Constitutional Court, Sitting on Matters of Unconstitutionality and the Compliance with the Constitution], Urgent (Apr. 14, 2020), https://cour-constitutionnelle.cd/2020/04/14/la-cour-constitutionnelle-siegeant-en-matiere-dinconstitutionnalite-et-de-conformite-a-la-constitution/.

146

Congo Const. 2006, art. 144.

147

Shingata infuruenza tō taisaku tokubetsu sochi hō [Special Measures Act on New Influenza], Act No. 31 of Mar. 14, 2012. art.6, para. 6.

148

See, e.g., Verordnung zur Beschaffung von Medizinprodukten und Persönlicher Schutzausrüstung bei der durch das Coronavirus SARS-CoV-2 Verursachten Epidemie, https://www.bundesgesundheitsministerium.de/service/gesetze-und-verordnungen/guv-19-lp/mp-psa-beschaffungsvo.html (a federal regulation promulgated by two executive agencies to address import of certain healthcare products).

149

Bar-Siman-Tov, supra note 75.

150

See, e.g., Gábor Halmai & Kim Lane Scheppele, Orbán Is Still the Sole Judge of His Own Law, Verfassungsblog (Apr. 30, 2020), https://verfassungsblog.de/orban-is-still-the-sole-judge-of-his-own-law/.

151

Ronan Cormacain, Coronavirus Bill: A Rule of Law Analysis (Supplementary Report - House of Lords), Bingham Ctr. for Rule of L. 7 (Mar. 25, 2020), https://binghamcentre.biicl.org/documents/84_coronavirus_bill_rule_of_law_scrutiny_supplementary_report_upload.pdf.

152

Emergency, but Not a State of Emergency, Pol. In (Mar. 14, 2020), https://polandin.com/47124167/emergency-but-not-a-state-of-emergency.

153

French Lawmakers to Investigate Where One and a Half Billion Masks Went, RFI (Apr. 1, 2020) http://www.rfi.fr/en/france/20200401-where-billion-masks-french-coronavirus-committee-asks.

154

Lag om ändring i smittskyddslagen [Law amending the Contagious Disease Act] Svensk författningssamling [SFS] 2020:241, (Swed.); Historisk Krislag Klubbad i Riksdagen [Historical Crisis Team Clubbed in Parliament], VK (Apr. 16, 2020), www.vk.se/2020-04-16/historisk-krislag-klubbad-i-riksdagen; Hans Rosén, Löfven om Krislagen: Ger Oss Verktyg att Agera Snabbt [The Laws of Crisis Law: Gives Us the Tools to Act Quickly], Dagens Nyheter (Apr. 7, 2020), www.dn.se/nyheter/sverige/brett-stod-for-ny-krislag-efter-lang-forhandling/.

155

Posner & Vermeule, Executive Unbound,supra note 4, at 89; Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1095 (2009).

156

Ming-Sung Kuo, A Liberal Darling or an Inadvertent Hand to Dictators: Open-Ended Lawmaking and Taiwan’s Legal Response to the Covid Pandemic, ICONnect Blog (Apr. 30, 2020), www.iconnectblog.com/2020/04/a-liberal-darling-or-an-inadvertent-hand-to-dictators-open-ended-lawmaking-and-taiwans-legal-response-to-the-covid-pandemic/.

157

Jen Kirby, Jair Bolsonaro Undermined Brazil’s Coronavirus Response. Now There’s a Political Crisis, Vox.com (Apr. 28, 2020), www.vox.com/2020/4/28/21228512/brazil-bolsonaro-coronavirus-moro.

158

Madiha Afzal, Pakistan Teeters on the Edge of Potential Disasters with the Coronavirus, Brookings (Mar. 27, 2020), www.brookings.edu/blog/order-from-chaos/2020/03/27/pakistan-teeters-on-the-edge-of-potential-disaster-with-the-coronavirus/.

159

William Heerdt & Timothy Kostelancik, Russia’s Response to Covid-19, Ctr. for Strategic & Int’l Stud. (Apr. 10, 2020), www.csis.org/analysis/russias-response-covid-19.

160

Coronavirus in Russia: The Latest News, Moscow Times (May 12, 2020), www.themoscowtimes.com/2020/05/11/putin-eases-nationwide-virus-lockdown-as-russia-becomes-3rd-most-infected-country-a70240.

161

See Pierre Thielbörger & Benedikt Behlert, COVID-19 und das Grundgesetz, Verfassungsblog (Mar. 19, 2020), https://verfassungsblog.de/covid-19-und-das-grundgesetz/; Sven Jürgensen & Frederik Orlowski, Critique and Crisis: The German Struggle with Pandemic Control Measures and the State of Emergency, Verfassungsblog (Mar. 19, 2020), https://verfassungsblog.de/critique-and-crisis-the-german-struggle-with-pandemic-control-measures-and-the-state-of-emergency/.

162

Leitlinien zum Kampf gegen die Corona-Epidemie, Die Bundesregierung (Mar. 16, 2020), www.bundesregierung.de/breg-de/themen/meseberg/leitlinien-zum-kampf-gegen-die-corona-epidemie-1730942.

163

See Thielböger & Behlert, supra note 161; Regeln, Einschränkungen, Lockerungen,Die Bundesregierung,www.bundesregierung.de/breg-de/themen/coronavirus/corona-massnahmen-1734724.

164

Landtag beschließt Bayerisches Infektionsschutzgesetz, Bayerischer Landtag (Mar. 25, 2020), www.bayern.landtag.de/aktuelles/aus-dem-plenum/landtag-beschliesst-bayerisches-infektionsschutzgesetz/.

165

See Frédéric Bouhon et al., La Belgique face au coronavirus: Une période extraordinaire au regard du droit constitutionel, BePolitix (Apr. 7, 2020), https://absp.be/Blog/belgique-coronavirus-droit-constitutionnel/.

166

See Verordnung 2 über Massnahmen zur Bekämpfung des Coronavirus (COVID-19) (COVID-19-Verordnung 2) [Ordinance 2 on Measures to Combat the Coronavirus (COVID-19) (COVID-19 Ordinance 2)] Mar. 16, 2020, SR 818.101.24, art. 7 (Switz.).

167

See Andrew Harding, Emergency Powers with a Moustache: Special Powers, Military Rule and Evolving Constitutionalism in Thailand, inEmergency Powers in Asia: Exploring the Limits of Legality 294, 294 (Victor V. Ramraj & Arun K. Thiruvengadam eds., 2009).

168

Phuket, Yala, Narathiwat Placed on Lockdown, Thai PBS World (Mar. 30, 2020), www.thaipbsworld.com/phuket-yala-narathiwat-placed-on-lockdown/.

169

Public Relations of Pathum Thani Confirmed the Governor Did Not Allow the Sale of Liquors, Matichon Online (May 3, 2020), www.matichon.co.th/covid19/measure-covid19/news_2168434.

170

Ismael López Ocampo & Mary Beth Sheridan, The President Has Vanished; His Wife, The VP, Says the Coronavirus Isn’t A Problem. Nicaragua Declines to Confront A Pandemic, Wash. Post (Apr. 12, 2020), https://wapo.st/3aZlVmi.

171

Marchio Irfan Gorbiano & Ghina Ghaliya, Turf War Undermines COVID-19 Fight in Indonesia, Jakarta Post (Apr. 1, 2020), www.thejakartapost.com/news/2020/04/01/turf-war-undermines-covid-19-fight-indonesia-government-jokowi-anies.html.

172

Richard Emblin, Mayor Claudia López Challenges Duque’s Easing of Lockdown in Bogotá, City Paper Bogotá (Apr. 22, 2020), https://thecitypaperbogota.com/bogota/mayor-claudia-lopez-challenges-duques-easing-of-lockdown-in-bogota/24711.

173

Colombia Constitutional Lawyer Explains Who Gets to Decide Easing of Quarantine, City Paper Bogotá (Apr. 27, 2020), https://thecitypaperbogota.com/news/colombian-constitutional-lawyer-explains-who-gets-to-decide-easing-of-quarantine/24798.

174

STF, ADI 6341, Relator: Min. Marco Aurélio, 24.03.2020 (Braz.), www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADI6341.pdf.

175

See, e.g., Selem Gebrekdian, For Autocrats and Others, Coronavirus Is a Chance to Grab Even More Power, N.Y. Times (Mar. 30, 2020), https://nyti.ms/3eTT6sw; Serge Schmemann, The Virus Comes for Democracy, N.Y. Times (Apr. 2, 2020), https://nyti.ms/2RmnJP8.

176

Elaine Yu & Austin Ramzy, Amid Pandemic, Hong Kong Arrests Major Pro-Democracy Figures, N.Y. Times (Apr. 18, 2020), https://nyti.ms/2QPMrrq.

177

Kim Lane Scheppele, Orban’s Emergency, Verfassungsblog (Mar. 29, 2020), https://verfassungsblog.de/orbans-emergency/.

178

Gábor Halmai, How COVID-19 Unveils the True Autocrats: Viktor Orbán’s Ermächtigungsgesetz, I-connect Blog (Apr. 1, 2020), www.iconnectblog.com/2020/04/how-covid-19-unveils-the-true-autocrats-viktor-orbans-ermachtigungsgesetz/.

179

Gábor Halmai & Kim Lane Scheppele, Don’t Be Fooled by Autocrats!, Verfassungsblog (Apr. 22, 2020), https://verfassungsblog.de/dont-be-fooled-by-autocrats/.

180

Kuo, supra note 156.

181

Id.

182

Eric Posner, Rule of Law Objections to the Lender of Last Resort, inConstitutions in Times of Financial Crisis 39, 45 (Tom Ginsburg et al. eds., 2019).

183

Rossiter, supra note 10, at 15–27.

184

David E. Pozen & Kim Lane Scheppele, Executive Underreach, in Pandemics and Otherwise, 114 Am. J. Int’l L. 608 (2020).

185

Id.

186

Nelson W. Polsby, Legislatures, inHandbook of Political Science 53, 57 (Fred Greenstein & Nelson W. Polsby eds., 1975) (discussing legislatures as arenas).

187

Jurgen Habermas, Moral Consciousness And Communicative Action (Christian Lenhart & Shierry Weber Nicholson trans., MIT Press 1991); Bruce Ackerman, Why Dialogue?, 86 J. Phil. 5 (1989); Deliberative Democracy: Essays on Reason and Politics (James Bohman & William Rehg eds., 1997).

188

Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All), 35 Osgoode Hall L.J. 75 (1997) (discussing the legitimacy of institutional dialogues).

189

Id.

190

Andre Bächtiger et al., The Deliberative Dimensions of Legislatures, 40 Acta Politica 225 (2005); see alsoCass R. Sunstein, The Partial Constitution 20 (1993).