Executive Underreach, in Pandemics and Otherwise
American Journal of International Law, Forthcoming
18 Pages Posted: 23 Jul 2020 Last revised: 24 Jul 2020
Date Written: June 30, 2020
Legal scholars are familiar with the problem of executive overreach. Especially in emergencies, presidents and prime ministers may claim special powers that are then used to curb civil liberties, marginalize political opponents, and subvert the rule of law. Concerns about overreach have surfaced once again in the wake of COVID-19, as governments across the globe have taken extreme measures to tackle the virus.
Yet in other countries, including the United States and Brazil, a very different and in some respects opposite problem has arisen, wherein the national executive's efforts to control the pandemic have been disastrously insubstantial and insufficient. Because so many public law doctrines reflect fears of overreach, President Trump's and President Bolsonaro's responses to COVID-19 have left the legal community flat-footed. In this symposium essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which executive underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.
Keywords: coronavirus, underreach, overreach, emergency governance, executive power, underenforced norms, Orban, Trump, Bolsonaro
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