Executive Underreach, in Pandemics and Otherwise

American Journal of International Law, Forthcoming

Columbia Public Law Research Paper No. 14-664

18 Pages Posted: 23 Jul 2020 Last revised: 24 Jul 2020

See all articles by David Pozen

David Pozen

Columbia University - Law School

Kim Lane Scheppele

Princeton School of Public and International Affairs, Princeton University; University Center for Human Values, Princeton University

Date Written: June 30, 2020

Abstract

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

Suggested Citation

, Executive Underreach, in Pandemics and Otherwise (June 30, 2020). American Journal of International Law, Forthcoming, Columbia Public Law Research Paper No. 14-664, Available at SSRN: https://ssrn.com/abstract=3649816 or http://dx.doi.org/10.2139/ssrn.3649816

David E. Pozen (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.law.columbia.edu/faculty/david-pozen

Kim Lane Scheppele

Princeton School of Public and International Affairs, Princeton University ( email )

Princeton University
Princeton, NJ 08544-1021
United States
609-258-6949 (Phone)
609-258-0922 (Fax)

University Center for Human Values, Princeton University ( email )

304 Louis Marx Hall
Princeton, NJ 08544
United States

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