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Members of the Philippines’ Lower House of Congress meet to discuss a proposed emergency power to be given to President Rodrigo Duterte to tackle the COVID-19 coronavirus outbreak, Manila, March 23, 2020STR/AFP via Getty Images
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Can Emergency Powers Go Too Far?

Legal and constitutional measures in the pandemic pit public health against privacy, assembly, religion, and other protected rights

by
Tom Ginsburg
and
Mila Versteeg
April 07, 2020
STR/AFP via Getty Images
Members of the Philippines' Lower House of Congress meet to discuss a proposed emergency power to be given to President Rodrigo Duterte to tackle the COVID-19 coronavirus outbreak, Manila, March 23, 2020STR/AFP via Getty Images

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

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

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

Constitutions vary widely in their precise regulation of emergencies, but most address the questions of who gets to decide if an emergency situation exists, under what conditions, what actions can be taken, and what oversight mechanisms exist. Courts play a critical role here, as do elected parliaments, for constitution-makers are well aware that extraordinary powers can be tempting for officeholders. Another central feature of constitutional emergencies is that they are typically of limited duration: Once the emergency has passed, the ordinary operation of government should resume.

The United States Constitution, however, does not do any of this, and says very little at all about emergency powers. But it does enshrine a system of federalism, in which the primary “police power” is exercised by states. Federalism was conceived, in part, as a mechanism to ensure liberty, and has allowed a variety of responses to COVID-19. Most state governors have utilized these powers broadly, organizing quarantines and shutdowns in the public interest, relying on their state constitutions and statutes. These are very expansive: A typical emergency statute allows the governor, upon declaring an emergency, to take property (with later compensation required), prohibit price increases, suspend regulations, control movement in a disaster area, provide for emergency housing, ration commodities, and exercise other powers as necessary to secure public safety. This means that most of us are living under severe restrictions that are authorized by state law. Governors have a good deal of discretion in all of this, so long as they can plausibly claim a connection with disaster relief. Further proposals, such as suspending rent or mortgage payments, are under discussion in some places, though these would likely require eventual compensation.

Some state powers are limited by the Constitution, however. Fundamental rights, such as travel among states, cannot be infringed, at least not on a discriminatory basis. Thus, Rhode Island Gov. Gina Raimondo’s initial order (later modified) to stop all cars with New York plates to enforce the quarantine was discriminatory because it did not similarly penalize Rhode Islanders returning from New York. The Texas order issued by Gov. Greg Abbott requiring quarantine of all returnees from high-risk areas, in contrast , did not discriminate based on state of residency, and so is probably constitutional.

The question of whether police can track your location using your cellphone, which some countries have been doing to enforce stay-at-home orders, is at the moment a matter of state law in the United States. For example, in California, a warrant is required, but not in Texas. One might imagine that, if states begin to track people routinely, pitting public health against privacy, the issue will move to the federal courts for resolution.

From Lincoln’s suspension of habeas corpus to the infamous Korematsu case upholding Japanese American internment, our courts tend to be very deferential to executive authority during times of crisis.

The various COVID-19-related restrictions limit the exercise of other rights as well. Restricting gatherings to 10 persons or fewer obviously limits the freedom of assembly; shutting down collective religious services infringes on free exercise; and temporarily shutting gun stores is an infringement on the right to bear arms. (Some states have exempted gun shops and religious gatherings from shelter in place orders, likely believing them unconstitutional.) If someone is confined against their will, there could be habeas actions to test the coercive powers of government in the context of the pandemic. Prisoners are already raising complaints about conditions of confinement. These cases are just starting to emerge, but so far courts have not played a major role. From Lincoln’s suspension of habeas corpus to the infamous Korematsu case upholding Japanese American internment, our courts tend to be very deferential to executive authority during times of crisis. Our constitutionalism involves dialogue among political actors and institutions, and so far, these have been the major players. As restrictions go on for an extended period, however, there may be a possibility of some traction in the courts.

So much for the states. How about the federal government? Its legal authorities are relatively limited, but its ability to mobilize resources is unparalleled. Constitutional silence on emergencies leaves the relevant authorities to statutes. The president clearly has authority to close external borders and to impose travel bans, as he has done. He may have the authority to close state borders as well, though this is less clear. So far, the main administration actions have been pursued under statutory authority. Orders to private companies like General Motors and 3M have been pursued under the Defense Production Act, originally passed during the Korean War, which allows the government to direct production and distribution. A public health emergency was declared on Jan. 31, allowing the Department of Health and Human Services to release national stockpiles of respirator masks, and to relax certain Medicare and other requirements that normally restrict things like telemedicine or practice across state lines. In March, President Trump invoked the National Emergencies Act and also declared an emergency under the Stafford Act, allowing the Federal Emergency Management Agency (FEMA) to take action.

A major concern among some is the November election. The United States has never postponed a presidential election, even during the Civil War and the Spanish flu epidemic of 1918. Any delay or postponement would generate immediate constitutional challenges, but we do not see this as likely to occur. After all, if voter turnout is low because of virus-related fears, that tends to help the incumbent, and so there is little motive to move for suspension. Thus the major threat to the United States at the moment does not seem to be abuse of power to end our democracy, but bumbling and uncoordinated response, caused in part by the very federal system that we think protects our liberty.

***

One might contrast the American response with that of Israel. The country has been in the throes of extended political paralysis for over a year, caused by the failure of any bloc to secure enough support to form a government in three successive elections. Prime Minister Benjamin Netanyahu, himself under indictment, has served in a caretaker capacity for most of the pandemic. Needless to say, this is not an ideal circumstance in which to respond to a crisis, but the government has been decisive. After the first cases appeared, it quickly imposed a quarantine on those returning from hard-hit countries, expanded testing, and ordering social distancing. The Haredi community, whose rabbis were slow to accept the advice of government, ignored social distancing orders and was the hardest hit. But Netanyahu’s decisive pronouncements against the threat posed by “the minority” brought them around. At the moment, a quarantine is in place around Bnei Brak, and steps are being taken to contain the spread.

What about the effect of the crisis on Israeli democracy? Generally speaking, constitutions require the legislature to approve the declaration of an emergency by the executive, and to renew it periodically. Of course, parliamentary oversight assumes that parliament can indeed meet. One of the novel things about our current moment is that convening parliamentary bodies in person can itself be dangerous. Many parliaments have quorum requirements that require a certain number of legislators to be physically present. As Ittai Bar-Siman-Tov notes, the Knesset is one of the few parliaments anywhere that does not have quorum requirements to do legislative business. But he also reports that parliaments are continuing to meet in most countries, even when some members have been diagnosed with COVID-19. Some have gone to the videoconferencing that has been adopted in universities and private business, and in other countries, such as Denmark, MPs are physically scattered through the parliamentary chamber to comply with social distancing recommendations.

Another issue has been government attempts to close the courts themselves. One of Netanyahu’s early emergency orders was to stop nonessential court proceedings, including criminal trials in which the accused was not in custody. Of course, this category happened to include Netanyahu himself, as his corruption trial was due to begin on March 17. It has now been reset for May 24.

Still, the Supreme Court has continued to operate and provide an important check. Alexis de Tocqueville famously quipped, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” This observation is perhaps even more true of Israel, where the court, acting as the High Court of Justice, has exercised vast authority over recent decades.

For example, Israel was one of several countries, including Singapore, South Korea, and Germany, that has sought to use cellphone data to track infected people as a way of enforcing quarantines. An order to this effect, relying on Shin Bet-gathered data to quarantine anyone who came into contact with infected persons, was passed by the cabinet, just as the new parliament was about to be sworn in. Normally, Shin Bet data can only be used for matters of terrorism and state secrets, extending to “other national security matters” only with the approval of the Secret Services Subcommittee of parliament. When the cabinet order was challenged, the Supreme Court required legislative authorization and oversight, and suspended the program for several days until the Knesset was able to convene. The regulations are now in effect for 30 days.

In short, Israel has already seen a good deal of back and forth among government, the legislature and the courts, at a very delicate moment in the country’s political history. Civil society has played an active role in bringing lawsuits, and the media has been outspoken. While the quarantine measures are strong, they seem to be generally effective relative to other countries. And critically, the courts are making sure procedures are followed and that oversight is available.

Courts in other countries are also stepping up. Last Tuesday, the Constitutional Court of Kosovo rejected the argument that a state of emergency was required to combat COVID-19, instead finding that the ordinary machinery of government can continue to operate. In Italy, too, courts and the parliament remain open, despite the highest per patient death rate of any major country.

In short, many democratic systems are finding that they have the effective tools to combat the virus without putting democracy at risk. In some countries, but not our own, courts are taking an active role to ensure that legal procedures are followed. Instead, the public seems generally willing to abide with infringements on basic freedoms, which seem sensible. But as months go on and should restrictions become more onerous, de Tocqueville’s prediction might become more relevant. As with the disease itself, things may have to get worse before they get better.

Tom Ginsburg is Leo Spitz Professor of Law at the University of Chicago Law School and a Research Fellow at the American Bar Foundation.

Mila Versteeg is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law at the University of Virginia Law School.

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