Who Governs?: Emergency Powers in the Time of COVID

Preface

On March 16, 2020, six San Francisco Bay Area counties and the City of Berkeley issued shelter-at-home orders, shutting down much of the regional economy and imposing restrictions on personal behavior, arguably including liberties guaranteed by the US Constitution. As a political scientist committed to democratic governance, my reaction was one of surprise and a bit of shock. California residents are regularly subjected to short-term emergency orders, generally associated with natural disasters like wildfires and floods, along with the occasional medfly infestation, but few living memories contained anything on the scale of the March orders.¹ The question was not whether the possibility of a lethal pandemic called for drastic action; certainly, it did. Rather, for some of us, the question was, Who, under the circumstances, could legitimately assume what are essentially dictatorial powers? For these sweeping orders were not issued by an elected executive such as the governor (Governor Gavin Newsom did not weigh in with a statewide order until three days later), or elected bodies like the state legislature, or even county boards of supervisors. Rather, exercising powers authorized by state constitutional provisions and statutes, appointed local officials suspended economic activity and dictated limitations on personal behavior. This was something outside my experience and, as I soon learned, outside the experience of most other political scientists. Thus, this volume begins with a chapter by New York University law professor John Ferejohn, which reviews the historical and philosophical basis of emergency powers in the context of today’s world.

Gathering the data is usually an early step in a social science research program. I inquired of various colleagues in the legal and public policy communities where I could find a compendium of state and local emergency powers. The disappointing answer came back that no one knew of such a source, only a few partial listings. That might have been the end of the project but for a fortunate coincidence in an otherwise difficult spring. Bruce Cain, director of Stanford’s Bill Lane Center for the American West noted that his center already had hired student interns for the summer, but pandemic restrictions prevented their placement in various government agencies. Here was a supply of labor that could help construct a database. Cain also offered the expert organizational assistance of Lane Center administrator Iris Hui. Cameron DeHart, then a Stanford political science PhD student, organized the data gathering and compilation and acted as overall study director. The student interns read and coded the provisions of fifty state constitutions, and of Washington, DC, and five territories, producing a database that includes nearly sixty variables. Chapter 2 summarizes this data. Those who would like to take a deep dive into the database can find the details in appendix 1.²

As political scientists and public administration scholars have long known, formal powers written down on parchment only begin the process of public policy making. Implementation is a critical stage between formal powers and policy outcomes. That implementation process is particularly complicated in a decentralized federal system such as that which characterizes the government of the United States. In chapter 3 Didi Kuo of Stanford’s Center on Democracy, Development and the Rule of Law, reports in detail how California officials went about implementing orders issued by state and various local governments. By way of comparison, in chapter 4 Miranda Sullivan and David Leal report on the experience of Republican-governed Texas, which reacted to the pandemic with far fewer restrictions than California. Moving from the particular to the general, in chapter 5 Emily Farris, Mirya Holman, and Miranda Sullivan examine local governments’ adoption of shelter-in-place orders and eviction moratoriums across the country not only as a function of objective pandemic conditions, partisanship, and ideology but also as a function of the constraints of the federal system.

Given the initial motivation of this project, it is only natural that we take a close look at the subject of the consent of the governed. A great deal of public opinion polling in 2020 revealed two trends. First, the utilization of emergency powers quickly became politicized, with Republicans showing much less support for various measures such as mask wearing, shutdowns, and travel restrictions (as well as whether the pandemic even constituted an emergency). Yiqian Alice Wang provides a description of these trends in public opinion in chapter 6. Second, when Americans feel that government is infringing on their rights, they appeal to the courts. Lawsuits regarding infringement on religious practices were filed very quickly after the issuance of executive orders restricting large gatherings, and others followed. Thus, I approached Liza Goitein, director of the Liberty & National Security Program at New York University’s Brennan Center for Justice, for assistance outside the expertise of those already involved in the project. Happily, she agreed to partner with us and appointed an advanced law student to compile and analyze court cases arising from emergency power restrictions. Victoria Ochoa analyzes 156 COVID-related cases in 2020–21 in chapter 7. The database she compiled can be accessed in appendix 2.³

In response to public opinion, court decisions, and their own ideologies, legislatures in many states moved to amend or restrict the emergency powers on the books in their states. While partisan conflict was most apparent, legislative–executive conflicts also were evident, and by late 2021 federal and state conflicts also arose. One of the important questions that emerged in implementation is who would enforce orders issued by the various public health agencies and other government units. The task falls in some cases to employees of the health agencies and other bodies that issued the orders; in some cases to other local or state agencies such as alcohol control and other licensing boards; in some cases to police departments; and in still other cases to elected sheriffs—in about two thousand of the country’s more than three thousand counties, the sheriff is the chief law enforcement officer. Early in the course of the pandemic it became apparent that there were systematic differences in enforcement activities between appointed and elected officials. In addition, in the late stages of the pandemic, state governors and local units of government became embroiled in conflicts over local exercise of emergency powers, such as the attempt by governors in Florida and Texas to prevent the imposition of vaccine mandates by local government units and private businesses. We briefly discuss these intragovernmental conflicts in chapter 8, many of which are continuing as we write.

The final chapter returns to the concern that animated this project—the implications of the COVID-19 pandemic for democratic governance. In chapter 9 I conclude by discussing some of the issues raised in 2020–21 that deserve serious attention before the next national emergency. In short, this chapter considers the classic political science question, Who governs?⁴

Having provided an overview of the topics that the chapters in this volume address, let me emphasize what they do not. First, except in passing, we make no attempt to evaluate the efficacy of the health restrictions imposed by state executive orders. There is a large and growing literature on how efficacious the various restrictions were in alleviating the worst health outcomes caused by the pandemic. The myriad studies in this literature exploit variation within individual states, within the fifty American states, and across the world. The knowledge produced by this literature will be extremely valuable when new health crises arrive in the coming years, but that is not our focus in this volume. Second, and more generally, there is another large, growing, and contentious literature on the costs and benefits of the various health orders. Even assuming widely accepted estimates of the health benefits of emergency orders in combatting COVID, how did these compare with the estimated economic, educational, mental health, and other costs they imposed? Put simply, however efficacious the restrictions were in dealing with COVID, were they worth it when situated in the larger socioeconomic context? This volume does not attempt to answer such questions. The perspective of this volume is that those are political questions, not public health questions. Who should weigh the costs and benefits and make the trade-offs raises fundamental questions of democratic governance. In this volume we aim to advance the conversation along those lines.

Funding for this project came from Stanford’s Bill Lane Center for the American West, Hoover Institution, and Center on Democracy, Development and the Rule of Law; and New York University’s Brennan Center for Justice. While the research foci of these organizations vary, we are united by a commitment to democratic governance.

MORRIS P. FIORINA

STANFORD, CALIFORNIA

OCTOBER 2022

Notes

1. Although there are some examples of long-standing states of emergency, these are usually associated with under-the-radar issues that do not visibly affect the general public (e.g., water policy).

2. Appendices 1 and 2 to this book are online supplements and can be viewed at https://www.hoover.org/research/who-governs-emergency-powers-time-covid.

3. See https://www.hoover.org/research/who-governs-emergency-powers-time-covid.

4. Robert A. Dahl, Who Governs?: Democracy and Power in an American City (New Haven: Yale University Press, 1961).

Part I

STATE EMERGENCY POWERS

Chapter 1

Emergency Powers

An Introduction

John Ferejohn

Emergency powers may be justified in three ways, or, if you prefer, emergency powers rest on three sources of authority: necessity, constitutional provisions, and legislation. In most emergencies, governments choose to exercise legislative emergency powers, claiming authority under enacted statutes, rather than asserting either necessity or direct constitutional authority. This is because most emergencies do not appear to be so urgent and threatening as to warrant reaching past the legislature either to basic law in the constitution, or to existential necessity. Enacted laws are usually sufficient for the job or, if they are not, the legislature can be convinced to enact new laws if necessary. While legislative emergency powers may be adequate in most cases, they raise the danger that emergency laws become part of the regular legal system. In effect, the executive is given a reservoir of special powers that may be used at his or her discretion. This raises the specter of creeping executive unilateralism and plebiscitarian rule, in which the executive accrues more and more delegated authority as successive emergencies come and go.¹

Major wars, economic depressions, and plagues can test any government, especially constitutional governments with separation of powers and the rule of law. When it first appeared in early 2020, COVID-19 posed such a test. It had the hallmarks of plague: geometric rates of spread, uncertainty as to where and whom it would strike, and lethal consequences. Moreover, there were no effective measures in public or private health for defending against it. Because medical treatments for the disease were inadequate to deal with the illness, many countries (including the United States) rapidly began turning to public health measures with the aim of flattening the curve, allowing hospitals a chance to catch up to the disease. Countries closed borders and restricted domestic travel as well, essentially shutting down the hospitality, entertainment, and travel industries. Schools and universities suspended in-person learning, and businesses started to allow those who could to work remotely. States and localities experimented with more direct controls on individual behavior (e.g., requiring masks, social distancing, mandatory testing, quarantines). Taking measures of this sort risked interfering with various constitutionally protected rights. Coercive public health measures are inherently threatening in a liberal society accustomed to personal freedoms, especially when those orders remain in place for a long time and target such an invisible enemy.

It appeared to many officials, at all levels of government, that under the circumstances they faced in early 2020, they had sufficient emergency powers to take these actions. But there was really no surefire way to gauge in advance which of their measures were actually legal. Executive officials could find authority in previous laws, but any particular order might or might not be legally permissible if challenged in court. Normally, government orders that trespass on protected rights are subject to strict scrutiny, a kind of proportionality test: the community must have a compelling interest in imposing the measure, and the measure must be narrowly targeted to avoid overburdening constitutional rights. In the early 2020 environment, it may have seemed clear that the first prong (compelling state interest) was probably satisfied for many coercive measures, but there really was no timely way to determine whether measures were overbroad (or under-broad for that matter). In any case, courts were reluctant to intervene, at least at first.

Emergency Powers in the Pandemic

The pandemic was rapidly and widely recognized in every country as an emergency both because of the severity and geometric contagion of the disease and because hospitals and other critical health resources were unable to deal with it. Still, it was not clear that the pandemic—however extreme its outcomes—represented an existential threat to the capacity of governments to govern, or that it required the delegation of special powers to executive officials and the short-circuiting of the judicial and legislative processes. Perhaps certain rights would need to be suspended for a time to permit governments to take actions limiting movement and freedom of association. And perhaps governments needed to take actions that threatened the capacity of hospitals to manage a deluge of urgent cases. But the overall structure of government did not seem to need immediate suspension or reformation. Or did it?

What may have seemed like ordinary governmental responses to emergencies—which I call the legislative model, which relies on authority delegated by the legislature—risks creating permanent new government authority that would last beyond the current emergency, and apply to new and unforeseen circumstances in the future. Such authority might permanently impair rights and even transform the regime itself. This worry about creeping regime transformation has been expressed from the beginning of the republic. Early on it was stated as a worry about permanent or standing armies. James Madison, writing as Publius, worried that wartime can lead to permanent changes that undermine liberty and undermine republican government:

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both. No nation could preserve its freedom in the midst of continual warfare.²

The worry that emergency rule could corrupt the regime—transforming a liberal or constitutional democracy into an authoritarian system—may be a reason to separate emergency rule from the normal political/legal system.³

Many classical political scientists (Polybius, Machiavelli, Locke, Rousseau, to name a few) have argued that constitutional emergency powers—the temporary concentration of decision-making authority in an executive—are necessary if a constitutional government, a government with limited powers, is to sustain itself. The idea endorsed by these political thinkers is that the emergency regime should be created in a kind of bubble that is insulated from the workings of the ordinary political/legal system: the regular rights-protecting constitutional government. The emergency regime is to be created and empowered to take necessary but extreme measures in order to resolve the emergency; but the legal effect of those measures should cease once the emergency ends and constitutional government (and public liberty) is restored. Montesquieu, for example, suggested that the practice of the freest nation that ever existed induces me to think that there are cases in which a veil should be drawn for a while over liberty, as it was customary to cover the statues of the gods.⁴

Unless there are constitutional provisions for an emergency regime of this kind, so the theory goes, regular executive authority will likely be permanently altered in ways that permit the regular government to interfere with constitutional liberties. Thus, the refusal to provide for constitutional emergency powers will lead to the creation of a permanent discretionary (or prerogative) power in the executive to deal with whatever emergencies come along. That may or may not be a good idea. John Locke argued for a prerogative power of this kind on the ground that law—laws enacted by the legislature—could not anticipate all eventualities and therefore discretion must exist in its application or execution. Locke thought that gaps in law and emergencies, what Carl Schmitt called the exception, were sufficiently common that executive prerogative power was needed. Unlike Schmitt, Locke did not conclude that the executive was (on that account) sovereign.⁵ Indeed, Locke insisted that if the executive abused the prerogative the people (as sovereign) might make an appeal to heaven—that is to say, the people reserve an inalienable right to revolution.

The classical example of a constitutional emergency regime was found in the early years of the Roman Republic. The standard account is that institutions such as the tribunate, which protected the plebes from despotic treatment by magistrates and also provided a plebeian role in legislation, were created as settlements of class conflicts that limited the powers of magistrates. Each tribune, for example, could force a magistrate to provide due process (a trial) to a detained individual and could veto any action of the Senate or other magistrates. The tribunes also substantially controlled lawmaking. In that respect the institution of the tribunate provided the plebes, as a class, and any Roman citizen, with protection against arbitrary acts of the government. The tribunes could also veto each other’s actions. The Senate and magistrates held vetoes as well. While this constitutional scheme protected Romans from arbitrary actions by their leaders, the elaborate system of vetoes in Rome hobbled the republic in dealing with internal tumult and invasions. Thus, at a very early stage, Rome adopted the institution of the dictator, who was given the authority to exercise special powers including the power to suspend due process rights during emergencies. In other words, a dictator could execute a person without trial if he thought it necessary to resolve the crisis.

The dictator was used ninety-five times during the first three hundred years of the republic and was, in that respect, a regular institutional safety valve that could be employed when the Republic was threatened. Normally, Roman citizens enjoyed procedural rights protected by the tribunes, but when circumstances threatened the city, those rights could be suspended during the course of the emergency. It is important to emphasize that, though the republican constitution was not written down, the dictatorship was a constitutional institution. Its practices were guided by widely accepted norms among the Roman elites. Dictators were chosen by a regular (legal) procedure: the Senate declared an emergency by asking the consuls to appoint a dictator, and, once a dictator was appointed, the authority of the consuls, Senate, and other institutions was suspended for its duration. Dictators were, however, term-limited, either to accomplish a specified and limited objective, or to six months of service, whichever came first. After that their mandate was finished and constitutional order was restored. Also, dictators were chosen in a way that tended to pick out trustworthy, experienced, and competent men for the job. In fact dictators were normally trustworthy old men who had held high office previously, and who had no further ambition for higher office or longer service. The model was, of course, Cincinnatus, George Washington’s hero, who put aside his plow to serve the republic as dictator to resolve a crisis, returning to his plow afterward.

As noted earlier, there are essentially three kinds of (or justifications for) emergency powers: necessary or existential powers, constitutional emergency powers, and legislative emergency powers.⁶ Niccolò Machiavelli, John Locke, Carl Schmitt, and many others argued, using different terms, that emergency powers are an existential necessity for a constitutional regime: if some official has the capacity to save the regime or constitution, he or she has the moral authority and the duty to take all actions necessary to achieve that goal. Machiavelli argued from Livy’s histories of the Roman Republic. He praised the dictatorship as never doing any harm to the republic.⁷ Locke argued for the necessity of the (royal) prerogative for dealing with things that law could not anticipate, such as emergencies. Schmitt argued, similarly, that laws are inherently incomplete and unable to handle what he called the exception and so the executive must have powers to deal with such things (including especially existential emergencies).⁸ Without that power, a constitutional government would not exist in a world of hostile powers, both internal and external.

These were not mere abstract sentiments of political theorists. When Abraham Lincoln imposed emergency powers in 1861 by illegally suspending the writ of habeas corpus, he recognized and admitted its illegality later by asking Congress to approve his actions retrospectively. He stated the matter when addressing Congress in 1863: Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? Lincoln offered a further justification for his actions afterward:

I did understand however, that my oath to preserve the Constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.⁹

Alexander Hamilton in Federalist, no. 23, argued that emergency powers are not only necessary but cannot be confined ex ante: The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances. The extent of these powers was defined by necessity: The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation. These powers, he continued, ought to be under the direction of the same councils which are appointed to preside over the common defense.¹⁰ Evidently this argument fits with his advocacy (in Federalist, no. 70) of a single responsible and energetic executive who would have the authority to enforce the laws. Such an executive would also be responsible to wield emergency powers for whatever duration he thought necessary. Hamilton’s argument might be seen as a special case of Locke’s argument for the necessity of the prerogative power in any government in which the executive and legislative powers are separated—laws cannot anticipate all circumstances of their proper application … and therefore there must exist someone who has the authority to use discretion to exercise authority to preserve the government and people, in the absence or even against the laws.¹¹

One question for the necessity theory advanced by Hamilton is how to define its limits. The notion of necessity cannot be restricted to any test of logical necessity; its scope must be defined by its holder in light of the actual event. That is, if the executive asserts that necessity requires that he or she take some act, this assertion cannot be subjected to a review or test without losing its essential value in protecting the republic. This idea is closely related to Madison’s metaconstitutional defense of the necessary and proper clause:

The power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. . . . Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. . . .

No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. (Federalist, no. 44, Madison)

The same argument—that without the power to deal with emergencies the republic would collapse—leads to the conclusion that emergency powers exist whether or not they are found in the Constitution and are necessarily unconfinable by previously adopted constitutional or ordinary law. These arguments have the effect of showing the only way that necessity-based emergency powers may be limited is by the virtue or character of the executive. He or she is trusted to judge correctly whether there is an emergency and which actions may be taken to deal with it. This is why Cincinnatus, and George Washington, are seen as exemplary. Both men decided what actions they could take and resigned their commission when the emergency each faced was resolved. Washington, it is said, shocked Europe by stepping away from his army after the revolution and returning, like Cincinnatus, to his farm to make (I believe) whiskey. He repeated the same self-denial in refusing to stand for a third presidential term though I doubt that he faced any sort of emergency then.

An alternative theory is that, as with the Roman Republic, emergency rule must be established legally by constitutional procedures (whether written or unwritten). In Rome, the Senate had to judge whether there was an emergency of sufficient danger to warrant asking the Consuls to appoint a dictator. For another example, the Weimar Constitution had a provision—Article 48—that conferred emergency powers on the president, allowing him to rule through decrees rather than through laws. The constitution of France’s Fifth Republic contains Article 16, outlining emergency powers. Such provisions are found in many modern constitutions, and most of them (like Articles 48 and 16) impose legal restrictions on emergency powers, limiting which rights can be suspended and often requiring some real-time review by courts or legislatures.¹² The key feature of constitutional emergency powers is that the constitution itself confers emergency powers directly on an executive to take actions to resolve emergencies.

The US Constitution has no explicit recognition of emergency powers. Arguably, however, specific emergency powers are conferred in parts of the Constitution: Article I, Section 9, confers (apparently on Congress) the authority to suspend habeas corpus in certain kinds of emergencies; Article II vests (undefined) executive powers in the president;¹³ the commander in chief clause makes the president the head of the armed forces; the take care clause gives the president the authority (and duty) to see that laws (including treaties and the Constitution) are enforced. While legal thinkers may disagree, each of these constitutional sources confer quite open-ended powers and duties on the president to uphold or protect the Constitution and the republic. Or, perhaps, such powers could be found