Executive Underreach, in Pandemics and Otherwise
American Journal of International Law, Vol. 114, pp. 608-17, 2020
10 Pages Posted: 23 Jul 2020 Last revised: 21 Oct 2020
Date Written: 2020
Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this 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 such 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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