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Executive Underreach, in Pandemics and Otherwise

Published online by Cambridge University Press:  20 October 2020

David E. Pozen
Affiliation:
Charles Keller Beekman Professor of Law, Columbia Law School.
Kim Lane Scheppele
Affiliation:
Laurance S. Rockefeller Professor of Sociology and International Affairs in the School of Public and International Affairs and University Center for Human Values, Princeton University.

Abstract

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.

Type
The International Legal Order and the Global Pandemic
Copyright
Copyright © 2020 by The American Society of International Law

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References

1 See, e.g., Selam Gebrekidan, For Autocrats, and Others, Coronavirus Is a Chance to Grab Even More Power, N.Y. Times (Apr. 14, 2020), at https://www.nytimes.com/2020/03/30/world/europe/coronavirus-governments-power.html.

2 See generally Oren Gross & Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006).

3 See, e.g., Livermore, Michael A. & Revesz, Richard L., Regulatory Review, Capture, and Agency Inaction, 101 Geo. L.J. 1337 (2013)Google Scholar; Sunstein, Cass R., Reviewing Agency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653 (1985)CrossRefGoogle Scholar.

4 See, e.g., Johnsen, Dawn E., Presidential Non-enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs. 7 (2000)Google Scholar; Prakash, Saikrishna Bangalore, The Executive's Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008)Google Scholar.

5 Our proposed definition of executive underreach thus combines descriptive and normative elements—as we believe is fitting for a term like underreach that embeds a negative judgment. Although commentators rarely take care to specify what they mean by “executive overreach,” virtually all discussions of that phenomenon appear to do likewise. See, e.g., Levinson, Daryl J., Rights and Votes, 121 Yale L.J. 1286, 1302 (2012)Google Scholar (associating executive overreach with presidential “aggrandize[ment]” and “sacrifice” of rights).

6 Pozen, David E., Self-Help and the Separation of Powers, 124 Yale L.J. 2, 20 n. 78 (2014)Google Scholar.

7 See generally Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy 68–119 (2018) (discussing the global spread of “democratic erosion”); V-Dem Inst., Democracy Report 2020: Autocratization Surges—Resistance Grows (2020), available at https://www.v-dem.net/media/filer_public/f0/5d/f05d46d8-626f-4b20-8e4e-53d4b134bfcb/democracy_report_2020_low.pdf (documenting the trend toward autocratization).

8 Cf. Steven Levitsky & Daniel Ziblatt, How Democracies Die 81–87 (2018) (cataloging ways in which aspiring autocrats attack the opposition through policies with disparate political impact).

9 See Martin S. Flaherty, Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs 158–63 (2019) (arguing that globalization has empowered executives within their own legal systems); Kim Lane Scheppele, Global Security Law and the Challenge to Constitutionalism After 9/11, 2011 Pub. L. 353 (arguing that the internationalization of security law has strengthened national executives at home).

10 See Kysar, Benjamin Ewing & Douglas A., Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. 350, 352–54 (2011)Google Scholar (suggesting that the diffuse, complex, and interconnected nature of contemporary threats to social welfare increases the risk of “government underreach”).

11 Cf. Tom Ginsburg & Mila Versteeg, Binding the Unbound Executive: Checks and Balances in Times of Pandemic 23 (June 9, 2020) (unpublished manuscript), available at https://ssrn.com/abstract=3608974 (reporting that in a global study of national government responses to COVID-19, “58% of the countries surveyed thus far have relied on legislation,” while “just 36% of the countries … declared a state of emergency”).

12 See id. at 5–6 (finding that “in many countries, checks and balances have remained robustly in place during the current health crisis,” with legislatures and especially courts playing an active oversight role, and characterizing these findings as “encouraging to those worried about … abuse of executive power”); see also Thomas Hale, Noam Angrist, Beatriz Kira, Anna Petherick, Toby Phillips & Samuel Webster, Variation in Government Responses to COVID-19 10 (Blavatnik Sch. of Gov't, Working Paper 2020/032 Version 6.0, May 2020), available at https://www.bsg.ox.ac.uk/sites/default/files/2020-05/BSG-WP-2020-032-v6.0.pdf (finding that from March 1 to May 27, countries generally “increase[d] their policy response as their number of confirmed COVID-19 cases r[o]se,” albeit with “significant variation in the rate and timing of this relationship”).

13 But see note 21 infra (noting additional examples of arguable executive underreach).

14 Hungary's current constitution, also known as its fundamental or basic law, went into effect on January 1, 2012. Magyarország Alaptörvénye, English translation available at https://njt.hu/translated/doc/TheFundamentalLawofHungary_20190101_FIN.pdf. Its detailed provisions on “special legal orders” can be found in Articles 48 through 54.

15 Id. § 53(3).

16 2020 évi XII. (III.30) törvény, a koronavírus elleni védekezésről, English translation available at https://perma.cc/9LMR-YS3L. The quoted language is from Section 2(1).

17 Id. §§ 6, 337.

18 For explanation of these decrees, see Gábor Halmai & Kim Lane Scheppele, Don't Be Fooled by Autocrats! Why Hungary's Emergency Violates Rule of Law, Verfassungsblog (Apr. 22, 2020), at https://verfassungsblog.de/dont-be-fooled-by-autocrats; Gábor Halmai & Kim Lane Scheppele, Orbán Is Still the Sole Judge of His Own Law, Verfassungsblog (Apr. 30, 2020), at https://verfassungsblog.de/orban-is-still-the-sole-judge-of-his-own-law.

19 See Gwendoline Delbos-Corfield, We Can't Fall for Viktor Orbán's Masquerade, EURACTIV (June 19, 2020), at https://www.euractiv.com/section/freedom-of-thought/opinion/we-cant-fall-for-viktor-orbans-masquerade.

20 See Gábor Halmai & Kim Lane Scheppele, The Moment for Lies, EURACTIV (June 26, 2020), at https://www.euractiv.com/section/justice-home-affairs/opinion/the-moment-for-lies.

21 Additional democracies in which executive underreach is a plausible diagnosis since March 11 include Mexico and the United Kingdom. See, e.g., William Booth, Boris Johnson and His Ministers Accused of Bungling Coronavirus Response, Unleashing Disaster, Wash. Post (Apr. 20, 2020), at https://www.washingtonpost.com/world/europe/boris-johnson-and-his-ministers-criticized-for-response-to-coronavirus-threat/2020/04/20/6e3d24e8-830a-11ea-81a3-9690c9881111_story.html; Vanda Felbab-Brown, AMLO's Feeble Response to COVID-19 in Mexico, Brookings (Mar. 30, 2020), at https://www.brookings.edu/blog/order-from-chaos/2020/03/30/amlos-feeble-response-to-covid-19-in-mexico. Another notable case is that of Sweden, which controversially declined to impose a lockdown. But Sweden seems to us better classified as a good faith outlier than a willful underreacher, as its health authorities took a wide range of preventive measures—some of them mandatory, some advisory, all justified in a deliberative fashion—under constraints imposed by the Swedish constitution. See Lars Jonung, Sweden's Constitution Decides Its Exceptional COVID-19 Policy, VoxEU.org (June 18, 2020), at https://voxeu.org/article/sweden-s-constitution-decides-its-exceptional-covid-19-policy.

22 See, e.g., Cameron Peters, A Detailed Timeline of All the Ways Trump Failed to Respond to the Coronavirus, Vox (June 8, 2020), at https://www.vox.com/2020/6/8/21242003/trump-failed-coronavirus-response.

23 See Gavin Bade, Despite Expanded DPA, Confusion Reigns over Coronavirus Industrial Response, Politico (Apr. 3, 2020), at https://www.politico.com/news/2020/04/03/trump-dpa-medical-goods-164036.

24 Zolan Kanno-Youngs & Ana Swanson, Wartime Production Law Has Been Used Routinely, but Not with Coronavirus, N.Y. Times (Mar. 31, 2020), at https://www.nytimes.com/2020/03/31/us/politics/coronavirus-defense-production-act.html.

25 See Aaron Rupar, How Trump Turned Ventilators into a Form of Patronage, Vox (Apr. 10, 2020), at https://www.vox.com/2020/4/10/21215578/trump-ventilators-coronavirus-cory-gardner-colorado-jared-polis-patronage.

26 See Omar G. Encarnación, Brazil Is Suffering. Bolsonaro Isn't, For. Pol'y (May 28, 2020), at https://foreignpolicy.com/2020/05/28/brazil-is-suffering-bolsonaro-isnt.

27 See Ernesto Londoño, Another Health Minister in Brazil Exits amid Chaotic Coronavirus Response, N.Y. Times (May 29, 2020), at https://www.nytimes.com/2020/05/15/world/americas/brazil-health-minister-bolsonaro.html.

28 For an early account, see Emilio Peluso Neder Meyer & Thomas Bustamante, Authoritarianism Without Emergency Powers: Brazil Under COVID-19, Verfassungsblog (Apr. 8, 2020), at https://verfassungsblog.de/authoritarianism-without-emergency-powers-brazil-under-covid-19.

29 See Tom Phillips, Brazilian Judge Tells Bolsonaro to Behave and Wear a Face Mask, Guardian (June 23, 2020), at https://www.theguardian.com/world/2020/jun/23/brazilian-judge-tells-bolsonaro-to-behave-and-wear-a-face-mask.

30 Tom Phillips, “So What?”: Bolsonaro Shrugs Off Brazil's Rising Coronavirus Death Toll, Guardian (Apr. 29, 2020), at https://www.theguardian.com/world/2020/apr/29/so-what-bolsonaro-shrugs-off-brazil-rising-coronavirus-death-toll.

31 But cf. Sen Pei, Sasikiran Kandula & Jeffrey Shaman, Differential Effects of Intervention Timing on COVID-19 Spread in the United States (May 29, 2020) (unpublished manuscript), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7273294/pdf/nihpp-2020.05.15.20103655.pdf (estimating that 54.0% of reported U.S. deaths from COVID-19 as of May 3, 2020, could have been avoided if social distancing and other control measures had been implemented just one week earlier).

32 Coronavirus Resource Center, Johns Hopkins Univ., at https://coronavirus.jhu.edu/map.html.

33 See, e.g., Gross, Oren, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011, 1097 (2003)CrossRefGoogle Scholar (noting the “strong probability that measures used by the government in emergencies will eventually seep into the legal system even after the crisis has ended”); Scheppele, Kim Lane, Exceptions That Prove the Rule: Embedding Emergency Government in Everyday Constitutional Life, in The Limits of Constitutional Democracy 124 (Tulis, Jeffrey K. & Macedo, Stephen eds., 2010)Google Scholar (analyzing dozens of states of emergency to show that they share in common an “emergency script” damaging to constitutional governance).

34 Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 235 (discussing U.S. administrative agencies).

35 See, e.g., Robert Farley, Constitutional Experts: Trump Lacks Power to “Open Up the States, FactCheck (Apr. 14, 2020), at https://www.factcheck.org/2020/04/constitutional-experts-trump-lacks-power-to-open-up-the-states; Darlene Superville, Tim Sullivan & Aaron Morrison, Trump Threatens Military Force Against Protesters Nationwide, AP News (June 2, 2020), at https://apnews.com/a2797b342b4fc509e43f404817a56aa9.

36 See Alexandra Ma, Trump's Incompetent Response to the US Coronavirus Outbreak Is Helping China Look Good, Bus. Insider (May 9, 2020), at https://www.businessinsider.com/trump-coronavirus-response-chaos-helps-china-propaganda-2020-5.

37 See, e.g., Heckler v. Chaney, 470 U.S. 821 (1985).

38 Corte Constitucional, Julio 31, 2008, Sentencia T-760/08, at http://www.corteconstitucional.gov.co/relatoria/2008/t-760-08.htm (in Spanish).

39 BVerfG, Judgment of the Second Senate of 05 May 2020, 2 BvR 859/15, at http://www.bverfg.de/e/rs20200505_2bvr085915en.html (in English).

40 See, e.g., Landau, David, The Reality of Social Rights Enforcement, 53 Harv. Int'l L.J. 189, 199–201 (2012)Google Scholar (explaining that courts enforcing social rights generally have relied on “individualized” or “negative injunction” remedies, rather than more systematic measures, with little impact on bureaucratic performance).

41 See Dauks^ienė, Inga & Budnikas, Arvydas, Has the Action for Failure to Act in the European Union Lost Its Purpose?, 7 Baltic J. L. & Pol. 209 (2014)Google Scholar.

42 Cf. Natasa Mavronicola, Positive Obligations in Crisis, Strasbourg Observers (Apr. 7, 2020), at https://strasbourgobservers.com/2020/04/07/positive-obligations-in-crisis (discussing positive obligations under the European Convention on Human Rights potentially applicable in the pandemic).

43 Talita de Souza Dias & Antonio Coco, Part III: Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak, EJIL: Talk! (Mar. 25, 2020), at https://www.ejiltalk.org/part-iii-due-diligence-and-covid-19-states-duties-to-prevent-and-halt-the-coronavirus-outbreak.

44 Id. Other commentators have reached similar conclusions based on the right to health specifically. See, e.g., Dainius Pūras, Judith Bueno de Mesquita, Luisa Cabal, Allan Maleche & Benjamin Mason Meier, The Right to Health Must Guide Responses to COVID-19, Lancet (June 20, 2020), at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31255-1/fulltext.

45 See Matiangai Sirleaf, COVID-19 and Allocating Responsibility for Pandemics, JURIST (Mar. 31, 2020), at https://www.jurist.org/commentary/2020/03/matiangai-sirleaf-responsibility-for-pandemics.

46 See, e.g., Queensland Guidelines for Bodies Monitoring Respect for Human Rights During States of Emergency, reprinted in 85 AJIL. 716 (1991); Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, reprinted in UN Doc. E/CN.4/1985/4.

47 Int'l Ctr. for Not-for-Profit L., COVID-19 Civic Freedom Tracker, at https://www.icnl.org/covid19tracker.

48 See, e.g., Ctr. for Civ. & Pol. Rts., Tracking Tool—Impact of States of Emergencies on Civil and Political Rights, at http://ccprcentre.org/ccprpages/tracking-tool-impact-of-states-of-emergencies-on-civil-and-political-rights.

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