States of Emergencies: Part II
Journal Article: States of Emergencies: Part II
Source: Harvard Law Review Blog
Date of Publication: 20 April 2020
Authors: Mila Versteeg, Associate Professor of the University of Virginia School of Law; Tom Ginsburg, Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department
How to Cite: Versteeg, M.; Ginsburg T. (2020). States of Emergencies: Part II. Harvard Law Review (Blog Essay), https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-ii/
Introduction: In States of Emergencies: Part I, the authors described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have relied on existing legislation relating to communicable diseases, health, and/or national disasters and used these laws as the basis for their COVID-19 response. Third, some countries have (also) passed brand new legislation that grant the governments new powers to respond to COVID-19.
When governments are granted powers to restrict rights, there is always a risk of abuse. To minimize these risks, three broad principles are important: (1) providing for legislative and judicial oversight of the executive, (2) limiting exceptional measures to those strictly necessary, and (3) ensuring that such powers endure only for the duration of the outbreak. These principles, rather than those focused on whether the relevant authorities are constitutional or statutory, are the most essential in ensuring that liberal constitutionalism does not become a casualty of the virus. The different models, however, each have their own vulnerabilities when it comes to the risk of abuse. Each government’s invocation of legal authority, whatever form it takes, should therefore be carefully scrutinized for compliance with these principles.
The full text of the blog essay is available on Harvard Law Review’s website, and can be found here.
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