Blog Essay

States of Emergencies: Part I


The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by the publics in many countries, some scholars and activists have raised the alarm that these might lead to a deterioration of civil liberties and constitutional democracy long-term. Specifically, they worry that many leaders might not easily give up their newfound powers, and that civil liberty restrictions will become the new normal.

While it is of course too soon to explore the long-term consequences of COVID-19 for constitutional democracy, we believe that it is helpful to understand the legal bases for the extraordinary powers that governments are currently exercising. In this brief Essay, we find that, while the details of course vary from country to country, there are three broad legal bases for the COVID-19 measures: (1) the declaration of a state of emergency under the constitution, (2) the use of existing legislation dealing with public health or national disasters, and (3) the passing of new emergency legislation. In the remainder of this Essay, we describe these three broad approaches. In a follow-up Essay, we will evaluate their respective risks to civil liberties and the rule of law.

Legal Bases for Combating COVID-19

1. Declaring a state of emergency. In response to COVID-19, some countries have invoked the emergency clause in their constitution. Over 90 percent of constitutions in force today include emergency clauses that allow the government to step outside of the ordinary constitutional framework and to take actions that would not otherwise be permitted. For the duration of the emergency, the government can rule by decree with few checks on its power. It can suspend rights, though not without limitations. Once the state of emergency ends, however, ordinary constitutional checks and balances fall back into place and the decrees passed during the emergency lose their legal force.

All emergency regimes grapple with a genuine tension. On the one hand, there is a need to respond to the immediate crisis in ways that, by definition, were not contemplated by constitutional drafters.  On the other hand, the ability to suspend normal rules of government is potentially prone to abuse: office-holders might seek to expand and even entrench their power during the emergency period.

To address this tension, emergency provisions in most modern constitutions both accommodate emergency powers but simultaneously build in safeguards to restrict their use.  Fifty-six percent of constitutions with emergency provisions require the legislature to approve the declaration of an emergency, thereby placing an important check on gratuitous invocation.  As a further check, many constitutions stipulate rules for ending the state of emergency, often by providing an automatic expiration date.  To illustrate, the Constitution of India states that emergency declarations “shall be laid before each House of Parliament and shall … cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.” Most emergency clauses also enumerate a limited set of circumstances under which emergencies can be invoked, such as war or foreign aggression (found in 48% of constitutions with emergency provisions), internal security (39%) or a national disaster (26%). Moreover, many emergency clauses ban constitutional amendments during the emergency, reflecting the idea that the ultimate goal of a state of emergency is to preserve the constitutional order, and not to change it. Finally, some countries have different levels of emergency regimes, reserved for different levels of disaster. For example, the Constitution of Spain has three different levels,  ranging from a state of alarm, to a state of emergency, and ultimately to a state of siege allowing martial law: each of these requires different levels of parliamentary oversight and grants different levels of powers to the government. In its fight against the coronavirus, the Spanish government declared a state of alarm, but has not (yet) invoked the higher-level state of emergency. Other countries that have activated their constitutional emergency clauses in response to COVID-19 include France, Hungary, Chile, Estonia, Ecuador, Guatemala, Honduras, Armenia, Namibia, Moldova, and Jordan.

Not all countries are able to declare a constitutional state of emergency to deal with COVID-19. Some constitutions do not provide for an emergency regime. The U.S. offers a well-known example: its Constitution does not recognize a general “state of emergency” but Congress may suspend the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  It is likely that the framers believed that the Constitution grants sufficient ordinary powers to the President and the states to deal with  emergencies.  The U.S. is not alone in having minimal language about emergencies in the constitution. Japan, Belgium and Sweden, among others, are in the same boat.  In other cases, emergency exceptions may be reserved for war and foreign invasion only. For example, Italy’s Constitution only recognizes a state of war, but not a state of emergency.  More generally, it is worth noting that only few constitutions explicitly mention public health as a ground for declaring a constitutional emergency, which might be an obstacle to using emergency powers in the current crisis.

2. Using Existing Legislation. Another way to grant extraordinary powers to the government is to activate legislation intended to deal with health crises and other emergencies.  It is widely accepted that most constitutional rights are not absolute, and that they can be restricted when doing so is necessary to protect public health or to avert disaster. Rights limitations are typically permitted when they are narrowly tailored to their intended goal, when the restrictions are proportional, and passed by law. Because rights are never absolute, it may not be necessary to declare a constitutional emergency: government can combat crises through law, as long as any restrictions of civil liberties are necessary and proportional.  Professors Ferejohn and Pasquino have called this a “legislative model” of dealing with emergencies. They point to a number of advantages of this model. Notably, it ensures legislative involvement in dealing with the crisis. And perhaps more importantly, because the ordinary constitutional framework stays in place, rights restrictions remain subject to judicial review. Thus, instead of “suspending” some constitutional rights entirely by making an emergency declaration, countries can opt to “limit” rights through ordinary limitation clauses enshrined in their constitutions. Last week, the Constitutional Court of Kosovo held that it was not necessary for the government to declare a constitutional emergency, and that limiting rights might be preferable to suspending them.  

A cursory survey of COVID-19 responses reveals that many countries have relied on existing legislation. Notably, many countries have special public health legislation on the books that allows them to take special measures in response to public health emergencies, including the imposition of quarantines and the closing of bars and restaurants. A number of countries, including Austria, Denmark, Burkina Faso, Germany, Norway, the Netherlands, Taiwan, Japan, and Switzerland, have used this type of legislation to impose their coronavirus measures. Prime Minister Modi’s abrupt lockdown of India, which has left millions of Indians scrambling for food, had a similar legal basis: the 1897 Epidemic Diseases Act.  But public health legislation is not the only type of legislation that has served as the legal basis for the COVID-19 response. Countries have also used various other types of emergency laws, such as the Emergency Management and Civil Protection Act in Canada, the 2015 Biosecurity Act in Australia, a range of pre-existing laws in Belgium, and a Security Act in the Czech Republic.  The United States has similarly invoked various statutes, including the Defense Production Act, the National Emergencies Act and the Stafford Act, among others, to help address the crisis.

3. New Emergency Legislation. In other countries, legislatures have passed brand new laws that delegate the executive special powers to deal with COVID-19.  Such new legislation might be necessary when existing laws do not authorize the kind of powers needed to combat COVID-19. One example is the Coronavirus Act passed by the U.K. Parliament, which grants the British government additional powers to combat the virus. Another example is Taiwan, where the government relied on the Communicable Disease Control Act to enact travel restrictions and mandatory quarantines, but also enacted a COVID-19 Special Act to allow for further action. In both these examples, the new legislation is specifically crafted to deal with the coronavirus, ensures parliamentary oversight, and is limited in duration.

But not all new laws are narrowly tailored to the current crisis. In some countries, newly adopted emergency laws are overly broad and remove legislative oversight over the COVID-19 response. One notable example is Hungary,  where Parliament passed a law that allows Prime Minister Victor Orbán to rule by decree for the foreseeable future. Hungarian commentators have called this the end of the country’s democracy, analogizing to Hitler’s notorious Enabling Act that effectively ended the Weimar Republic. Norway’s emergency law has also been criticized for removing parliamentary oversight. As another example, Ghana recently passed the Imposition of Restrictions Act, which allows the executive to restrict rights, but does not explicitly mention COVID-19 and does not have an expiration date. In these cases, there are legitimate concerns over whether these laws might produce a long-term erosion of civil liberties and the rule of law.


Of course, not all countries’ responses neatly fit into this framework. Leaders scrambling to respond to the crisis may act first, and find a legal justification later. For example, in Italy, where an emergency can only be declared in response to war, the lockdown was simply announced by executive degree. Italian constitutional scholars have noted that doing so was constitutionally problematic, as the Italian Constitution requires that any limitations on the freedom of movement are passed by law, and no law was in place to impose such restrictions. We just started a global and systematic survey of the legal bases of COVID-19 responses, and we expect to find other cases where governments acted without a clear legal basis.