Emergency Powers in the Time of Coronavirus…and Beyond

There is much we still do not know about COVID-19, but there is also much that we do know. We know we are dealing with a highly transmissible virus that can spread easily from person to person through respiratory droplets. And we know that if you do not want to be 6 feet under (or put someone else there), you’d better be 6 feet away.

Both the knowns and the unknowns have led national governments to adopt extraordinary measures to counter the threat of infection and to stop the virus from spreading. When faced with major crises—terrorist attacks, natural disasters, economic turmoil, or biological threats—we, the people, turn to our governments for protection, help, assistance, leadership, and assurance. As such, crises both raise a demand of government “to do something” to overcome the crisis as well as an opportunity for the government to “do something.”

With COVID-19, governments have answered the call.

Declaring a State of Emergency

To date, more than half of the world’s democracies have declared a state of emergency in response to the Corona virus. In the United States, the secretary of Health and Human Services declared a public health emergency on Jan. 31, under the Public Health Service Act in response to COVID-19, and, on March 13, President Donald Trump, invoking presidential powers under the Constitution and the National Emergencies Act, declared that the COVID-19 outbreak in the U.S. constituted a national emergency. In addition, all 50 U.S. states have declared a “state of emergency” in response to COVID-19.

In fact, democracies have been more likely to declare a state of emergency than autocracies, with 54 percent of the world’s democratic governments declaring a COVID-related emergency compared with 33 percent of autocratic regimes. This is not surprising when one considers that autocracies already enjoy vast powers and do not need to declare an emergency to aggregate more power.

In the past few months, we have witnessed numerous extraordinary measures adopted by various governments in response to COVID-19.

Many of those extraordinary measures make sense. Few would challenge the justification to limit freedom of assembly or freedom of movement in the face of COVID-19. In several countries the obligation to wear face masks when going outside or, indeed, an order to stay indoors for a period of time, has also gone largely uncontested. Certain limitations on the freedom of religion have been justified on the basis of the pandemic such as preventing the congregation of worshippers in churches, synagogues, and mosques. Other, more controversial measures, such as enhanced surveillance and tracking, involve the right to privacy.

However, this is but one part of a greater picture.

Never Let a Good Crisis Go to Waste

A common rhetorical tool used, perhaps overused, by politicians, business leaders and consultants, motivational speakers, and others is “never let a good crisis go to waste.” Those who want to impress their listeners even further hasten to add that “the Chinese word for ‘crisis’ is ‘danger plus opportunity.’” Whether correct or, as some have argued, a widespread public misperception, this idea has been taken up and repeated, over and over again.

The danger and opportunity inherent in crises are, frequently, two sides of the same coin.

The danger presented in such tumultuous times is not confined merely to the obvious risks—terrorism attack, hurricanes, an economic meltdown, or a pandemic. It also inheres in the fact that crises present governments, both democratic and authoritarian, with an opportunity to increase and concentrate their powers often at the expense of individual rights, freedoms, and liberties.

The government’s ability to act swiftly, decisively (and, where needed, secretly) against major threats frequently becomes superior to limitations on governmental powers and to individual rights. Thus, crises tend to result in the expansion of governmental powers and the concentration of powers in the hands of the executive. They also result in derogations from, limitations imposed on, and contraction of individual freedoms and liberties.

Some governments enthusiastically embrace such opportunities to extend their authorities.

Take the example of Hungary. On March 11, Viktor Orbán’s government declared a “state of danger because of the pandemic.” Later that month, the parliament passed the Act on Protecting against the Coronavirus, which gives the government a mandate to rule by decree and to adopt extraordinary measures, including suspending or abrogating statutory provisions, without any need for further parliamentary approval during the crisis. The act imposes further constraints on the already pressured press by criminalizing, inter alia, the publication of false or distorted facts that interfere with the “successful protection” of the public. This new crime is broadly worded and may well be used to stifle criticism of governmental measures. The Act also cancels elections until the crisis is over. Finally, to further ensure itself against any possible review, the Orbán government, exercising its newly conferred authorities, closed down the ordinary courts.

Other governments may be more reluctant, at least initially, to expand their own powers and authorities, convincing themselves and the citizenry, that such expansions and concentration of powers, when they take place, are merely temporary and necessary evil needed to surgically overcome the particular challenge.

Whatever the case may be, experience teaches us several important lessons that we ignore at our peril. First, when faced with emergencies, governments tend to over-, rather than under-, react. Second, crises and emergencies almost invariably lead to the strengthening of the executive branch at the expense of the other two branches. Parliamentary acquiescence and judicial deference leave a great room for executive action. Finally, and most significantly, counter-crisis measures adopted in response to a particular exigency, regardless of the nature of that exigency, are rarely fully scaled back and terminated once the crisis abates and is over. Rather, remnants of changes to the legal terrain and to institutional structures are left behind, forever changing the nature of our legal and institutional systems, lying like Justice Robert Jackson’s “loaded weapon,” waiting to be discharged come the next crisis or, in fact, to be used throughout the “new normal.”

This is no less a problem in the U.S. than it is in other countries.

Most modern constitutions around the world contain explicit, frequently detailed, emergency provisions. In many of those, a distinction is made in the constitutional document among a multiplicity of states of emergency, allocating different emergency powers to the government according to the particular type of exigency at hand.

The U.S. Constitution, however, is almost entirely devoid of references to states of emergency and to emergency powers. True, it allocates certain war-related powers both to Congress (declare war, raise armies, provide for a navy) and the executive (commander-in-chief). But where emergencies are concerned, the Constitution is lacking in any detail and, in any event, it does not refer at all to nonviolent, non–war-related, emergencies.

The absence of explicit constitutional provisions dealing with emergencies was not the result of inadvertent omission or lack of attention but rather of a conscious decision by the Founding Fathers.

On the one hand, Alexander Hamilton noted that it was impossible:

to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances.

On the other hand, James Madison worried that should emergency powers be explicitly provided for in the constitutional document, attempts to restrain the use of such powers and to check potential abuses may be not only futile but outright dangerous, for

It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.

Emergencies in Theory: Temporary and Exceptional

Regardless of constitutional provisions and factual circumstances, what underlies the conferring on government of expansive emergency powers is the perception that the expansion and concentration of powers, and the contraction of rights, are likely to be temporally limited.

Emergency powers are designed to respond to a particular exigency and then be removed as soon as, or shortly after, that emergency has been met successfully. The idea that extraordinary, even draconian, measures are to be temporary makes the nature of such measures easier to accept.

At least in constitutional democracies, extraordinary powers are structured around the belief in our ability to separate crises from normalcy, and extraordinary measures from ordinary legal rules and norms, confining the application of the former to extraordinary times, insulating periods of normalcy from the encroachment of vast powers.

For normalcy to be “normal,” it has to be the general rule, the ordinary state of affairs. Emergency must constitute no more than an exception to that rule – it must last only a relatively short time and yield no substantial permanent effects.

Application of emergency powers is designed to be of a temporary nature, to serve as a bridge between pre-crisis and post-crisis normalcy.

The Entrenchment of Emergencies

However, rather than remaining exceptional, emergencies and crises have become entrenched and prolonged resulting in emergency regimes that tend to perpetuate themselves, regardless of the intentions of those who originally invoked them.

Once brought to life, they are not so easily terminable. Emergency powers have become the norm, the ordinary state of affairs.

For example, time-bound emergency legislation is often the subject of future extensions and renewals. It is commonplace to find on the statute books legislative acts that had originally been enacted as temporary emergency measures, but subsequently transformed into permanent legislation.

The same is true also with respect to legislation that, albeit not couched in terms of special emergency legislation, functions in similar ways with the attendant opportunities and dangers involved.

Consider, for example, a relatively benign example. The Defense Production Act (DPA).

Enacted in 1950 to help the Truman administration with the Korean War, it grants the authority to the executive branch to demand that private manufacturers give priority to defense production, to products related to critical infrastructure, homeland security, and stockpiling, so long as doing so is in the interest of the national defense (very broadly defined).

The DPA was used by President Harry Truman to cap wages and impose price controls on the steel industry (after failing to takeover certain steel mills), and has since been routinely used by the DoD to ensure that military-related orders are given priority within the U.S. supply chain, and by FEMA to prioritize contracts for housing, food, and water in the wake of natural disasters.

After initially refusing to invoke the DPA, President Donald Trump eventually decided to invoke the law and, on March 18, issued an executive order prioritizing and allocating health and medical resources to respond to the spread of COVID-19. On March 27, the president invoked the DPA to require General Motors to produce more ventilators and has later issued similar demands to other companies, including 3M.

Now, demanding that the government’s orders for supply of masks and ventilators makes a lot of sense. However, under the DPA, the executive may also waive, for example, antitrust restrictions. A voluntary agreement could be used to coordinate production among several businesses even though such coordination would normally run afoul of antitrust statutes.

Invoking the Act in times of emergency may make sense. Yet, it is part of our regular legal terrain and may be invoked in situations that do not amount to a true emergency in order to bypass the protections incorporated into the anti-trust legislation.

Governmental conduct during a crisis creates a precedent for future exigencies as well as for “normalcy.” In any future crisis, government will take as its starting point the experience of extraordinary powers and authority granted and exercised during previous emergencies. What might have been seen as sufficient “emergency” measures in the past may not be deemed enough for further crises as they arise. Much like the need to gradually increase the dosage of a medication in order to experience the same level of relief, so too with respect to emergency powers.

Government and its agents also grow accustomed to the convenience of emergency powers. Once they have experienced the ability to operate with fewer restraints and limitations, they are unlikely to be willing to give up such freedom.

Emergency powers may also be used for purposes other than those for which they were originally granted. The farther we get from the original situation that precipitated its enactment, the greater are the chances that the norms and rules incorporated therein will be applied in contexts not originally intended.

Yet another pernicious effect that states of emergency entail. I refer here to the tranquilizing effect that they have on the general public’s critical approach toward extraordinary measures. As John Stuart Mill warns:

Evil for evil, a good despotism, in a country at all advanced in civilization, is more noxious than a bad one; for it is far more relaxing and enervating to the thoughts, feelings, and energies of the people. The despotism of Augustus prepared the Romans for Tiberius. If the whole tone of their character had not first been prostrated by nearly two generations of that mild slavery, they would probably have had spirit enough left to rebel against the more odious one.

Is the Transformation of Emergency Measures into the Regular Legal System a Bad Thing?

But is the transformation of temporary, emergency measures into the regular legal system necessarily a bad thing?

There are those who argue that emergencies offer a unique opportunity to liberate the polity from some state of sclerosis, or entrenched equilibrium, that had held government power in the past at an inadequately low level. In other words, if the status-quo-ante-emergency did not embody an optimal balance between, for example, liberty and security, then the crisis-produced legal rules may be a better calibration of the balance.

However, there are many good reasons to believe that setting the equilibrium between the powers of the state and the rights of individuals is particularly difficult, even with best intentions, in times of crisis.

Exigencies result in the prizing of action over deliberation. The need to respond quickly to major threats—as well as to assure the public that its government is acting decisively—frequently results in rushed governmental action and legislation, often without much debate and at times forgoing normal procedures.

Strong emotions such as fear, hysteria, and panic carry a pronounced effect on people’s perceptions of, and reactions to, risk. That effect is further amplified and re-amplified as a result of “emotional contagion.” Individuals are highly responsive to emotions expressed by others. Some emotions, such as fear, are particularly contagious.

We also perceive risks as more “serious,” the more “dreaded” and “unknown” they are and then we increasingly demand that something be done about them regardless of the probability of their occurrence, the costs of avoiding the risk, or the benefits of declining to avoid the risk. A risk is “dreaded” if people perceive it to be involuntary and potentially catastrophic, and one over which they lack control. It is “unknown” if it is new and not well understood.

COVID-19 checks both boxes. It has created a “new species of trouble” that has made analytical risk assessment extremely difficult and increases our reliance on affective assessments, which are prone to errors.

We also entertain myopic perspectives about the future, in that we tend to undervalue and discount future benefits and costs when comparing them with present benefits and costs. While a strong governmental response against the pandemic may be perceived by the public as socially beneficial and necessary, the longer-term costs to individual rights and liberties tend to be overly discounted. That such future costs seem mostly intangible and abstract, especially in comparison with the very tangible sense of fear for one’s person and loved ones, only exacerbate this facet of our risk assessment.

Framing and War Rhetoric

And then there is the matter of rhetoric and framing.

The framing of issues and outcomes significantly shapes choices. The rhetoric of emergency works as “rhetoric of investiture,” explaining and legitimating the need to concentrate powers in the executive.

War rhetoric leads to greater public acceptance, and even active demand by the public, of the government exercising expansive powers and authorities in order to overcome the threat and restore peace and security.

Studies of presidential war rhetoric in the U.S. have shown that presidents have used dramatic narrative filled with emotionally charged language to identify major threats to the nation that must be immediately and forcefully met.

Presidential war rhetoric often exhorts the audience to unanimity of purpose and total commitment. “Emergency,” “war,” and “national security,” are often invoked as rhetorical absolutes that impart the capacity to demand sacrifice.

The seductive attributes of the war frame have not been lost on presidents even outside the context of armed conflict, invoking the term in the context of the war on poverty, on drugs, on crime, on cancer and HIV-Aids, and more.

Not surprisingly, many politicians and people in the media have adopted war metaphors to describe the challenges we are facing.

Trump has described himself as a “war-time president,” fighting against an invisible enemy. New York Governor Andrew Cuomo declared that

The soldiers in this fight are our health care professionals. It’s the doctors, it’s the nurses, it’s the people who are working in the hospitals, it’s the aids. They are the soldiers who are fighting this battle for us.

Queen Elizabeth II delivering a rare speech on April 5 declared that “we will meet again” evoking a World War II song. Italian Prime Minister Giuseppe Conte also invoked the Second World War when he used Winston Churchill’s words to talk about Italy’s “darkest hour.” UN Secretary-General Antonio Guterres similarly remarked that, “We are at war with a virus – and not winning it. …This war needs a war-time plan to fight it.”

War-time imagery is powerful in that it emphasizes the urgent need for drastic policy decisions and taps into the citizens’ sense of duty and obligation to serve their country.

But it is also dangerous.

It helps legitimize and justify that which would otherwise be deemed unthinkable and objectionable. Thus, for example, the Coronavirus Emergency Bill gives the British government the power to detain and isolate people, ban public gatherings, and shut down ports and airports. The British Health Secretary, Matt Hancock, explained that

Our policy is to fight this virus with everything we’ve got…The measures…are unprecedented in peacetime…We are in a war against an invisible killer and we’ve got to do everything we can to stop it.

War rhetoric stifles opposition as unpatriotic. It also identifies, as any war imagery must, an enemy, in this case, the virus. Yet several politicians have gone beyond that faceless enemy to suggest a more tangible and concrete enemy. Consider, for example, Trump’s frequent reference to the “Chinese Virus” which he has described as a “brilliant” and “very smart” willful enemy.

And with war rhetoric it is also not surprising that arguments have erupted over transnational (and even national) supply of essential medical and protective equipment such as the Trump administration’s attempts to prevent 3M from sending face masks to Canada. And in Europe, rather than transnational solidarity, the refusal of northern European members of the EU to shoulder the burden together with the southern states by issuing Eurobonds have soured the relations inside the Union to such a degree that some are, again, asking whether the EU would survive the crisis.

Finally, if this is a war, how long will it last? With the never-ending global war on terrorism as a drop back, one of the things we still do not know is when this crisis will be over with current talks of a possible vaccine available only in 12-18 months and of a second, more lethal wave of infections in the fall, coupled with the flu season.

Nor, for that matter, do we know what the new normal will look like.

Thus, we must be especially vigilant to ensure that the extraordinary, allegedly temporary, measures taken to protect us today, are not turned into measures of repression tomorrow.

Image: Police officers (R) stand guard at an entrance of a high school as senior students enter school in Wuhan in China’s central Hubei province on May 6, 2020. Photo by STR/AFP via Getty Images

 

About the Author(s)

Oren Gross

Irving Younger Professor of Law and Director of the Institute for International Legal & Security Studies at the University of Minnesota Law School. Follow him on Twitter (@OrenGross).