Binding the Unbound Executive: Checks and Balances in Times of Pandemic

62 Pages Posted: 26 May 2020 Last revised: 16 Jun 2020

See all articles by Tom Ginsburg

Tom Ginsburg

University of Chicago Law School

Mila Versteeg

University of Virginia School of Law

Date Written: June 9, 2020

Abstract

Emergency governance, we are often told, is executive governance. Only the executive branch has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. This creates a risk of over-reach, erosion of civil liberties, and even democratic backsliding in some cases.

This Article interrogates these propositions using evidence from how various countries have responded to the global COVID-19 pandemic. It presents data from an original and global survey to evaluate the nature of emergency powers during the pandemic. The survey captures, for each country, the legal basis for the pandemic response as well as the extent to which there has been judicial or legislative oversight, and whether the executive’s pandemic response has encountered pushback from subnational units.

This Article finds that, contrary to conventional wisdom, courts, legislatures and subnational governments have played important roles in constraining national executives. Courts have played four different roles: (1) they have insisted on procedural integrity of invocations of emergency; (2) they have engaged in substantive review of rights restrictions, balancing public health concerns; (3) they have in some cases demanded that government take affirmative steps to combat the virus and its effects; and (4) they have supervised decisions about postponing elections. Legislatures have likewise played an active role in providing oversight and, in some cases, in producing new legislation that is specific to the current crisis. Subnational governments, too, have pushed back against central authorities, producing valuable institutional dialogues on the appropriate response. This Article considers the implications of these findings for theories of emergency governance, arguing that the executive does not occupy as central a role as commonly believed, especially in crises in which information is highly decentralized. It further defends the role of institutional checks and balances during emergencies, arguing that they are likely to produce more legitimate and reasoned responses than the executive acting alone.

Suggested Citation

Ginsburg, Tom and Versteeg, Mila, Binding the Unbound Executive: Checks and Balances in Times of Pandemic (June 9, 2020). Virginia Public Law and Legal Theory Research Paper No. 2020-52, Available at SSRN: https://ssrn.com/abstract=3608974 or http://dx.doi.org/10.2139/ssrn.3608974

Tom Ginsburg (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Mila Versteeg

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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