Inaction as a State Response to the Coronavirus Outbreak

Antonios Kouroutakis

IE University, Spain

The World Health Organization, on March 11th, declared the novel coronavirus outbreak a pandemic. As of today (March 20th) the coronavirus, known as SARS-CoV2 (severe acute respiratory syndrome coronavirus 2), has been confirmed present in more than 170 countries. More than 240,000 people have contracted coronavirus disease (COVID-19), the disease caused by the virus, and more than 10,000 people have died.

While the pandemic is still spreading, and some counties are affected more than others, governments have had to respond, given that SARS-CoV2 poses a serious and global threat. In their responses, governments have had to balance public health on the one hand with freedom of movement and assembly on the other. Some states have adopted emergency measures, imposing a general lockdown, while others have placed more specific bans and restrictions. Still, however, some have failed to promptly put in place any strict criteria, which raises the question of whether emergency powers are too concentrated in executives’ hands. In this post, I seek to start answering that question and to inspire reflection on whether we should have constitutional mechanisms to compel the executive to take action in an emergency.

Adoption of emergency measures

Many states have taken swift preventative action. For instance, the Italian government issued, on February 23rd, in terms of Article 77 of the Italian Constitution, an executive decree. This decree has given Prime Minister Conte, the authority to issue further executive decrees in response to the crisis caused by SARS-CoV2. The President of the United States of America, on March 13th, declared a state of emergency, in terms of sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601). Similarly, the Spanish government, on March 14th, activated a so-called ‘state of alarm’ with the issuance of Royal Decree 463/2020, issued in terms of Article 116(2) of the Spanish Constitution and the Organic Law of States of Alarm, Exceptions and Situations Act.

The legal theory

Constitutional theory and political philosophy, has dedicated a plethora of articles and books to the issue of ‘states of emergency’. Carl Schmitt ignited the discussion by, famously, stating that the “[s]overeign is he who decides on the exception”. He argued that during states of emergency, the rule of law has no place since the powers of the sovereign need to be endless.

In principle, emergency provisions are a sine qua non – every constitutional order must provide for them. At least, if they are to infuse the governance system with the flexibility required to respond to national and international crises.

Nowadays, liberal constitutional theory recognizes three main responses to emergencies. The first is the ‘business as usual’ model, Dyzenhaus is a proponent of this method. According to this approach, policymakers simply employ ordinary laws from their existing legal arsenal when dealing with emergencies. States, therefore, rely, for instance, on legislation related to war and crime.

The second common approach is the ‘accommodation’ model, with Ackerman as one of its prominent proponents. This approach allows policymakers to adopt tailored laws to deal with a crisis. The departure from ordinary legislation is regarded as necessary because ordinary legislation is considered inadequate for responding to a state of emergency.

Finally, the third approach is known as the ‘extra-legal measures’ model. According to Gross, a proponent of this model, this approach presumes that public officials may act extralegally when emergency measures are necessary for protecting the nation. This model does, however, provide for, and its defenders acknowledge, that officials taking extra-legal action may be held accountable, legally or politically, for those actions, should they be proven wrongful. 

The incorporation of a state of emergency provision into constitutional documents has been, accurately in my view, described, in liberal constitutional theory, as a Trojan horse. Scholars have also criticized these provisions from several different perspectives. The scholarship has, however, neglected dealing with the issue of state inaction during emergencies.

Emergency inaction

An exemplification of such emergency inaction is the early reaction of the United Kingdom (UK). The UK Government took a different approach to the states previously mentioned, in its response to the SARS-CoV2 outbreak. It did not introduce emergency measures of the kind adopted by numerous other countries, such as travel and free movement restrictions, the closure of schools and universities and bans on large gatherings. It limited its action to a series of recommendations, including on social distancing and travel advice. The press claimed that an assumption that ‘herd immunity’ would stop the spread of the virus underpinned the initial UK policy position. ‘Herd immunity’ comes about when a sufficient portion of a population develops immunity from infection as they recover, offering incidental protection to non-immune members. 

Emergency inaction is a new phenomenon. Technically, it is a form of the ‘business as usual’ approach, but one that can be defined as inaction by competent authorities when a crisis is looming. Political theory has traditionally assumed the executive branch of a state will take action in these types of circumstances. The main focus of scholarship has, therefore, been on preventing executive overreaction (and the resultant disproportionate burdening of fundamental rights and freedoms). The ‘inaction’ variety of the ‘business as usual’ model is thus understudied.

Another example of such emergency inaction is the recent Greek financial crisis. In 2009, the Greek government failed to adopt any measures to reduce the country’s excessive primary budget deficit. The government did not take any steps, despite the fact that Greece’s economy had been under surveillance since 2005 and many European countries had fallen into recession as a result of the 2008 global economic crisis. Instead of adopting emergency measures, the government called for snap elections, just a few months before the collapse of the economy.

In many countries, an imperfect formulation of the separation of powers doctrine underpins the development of the constitution. This lack of nuance in understanding leads to the adoption of provisions giving the executive branch a monopoly on emergency response. The failure to include a constitutional mechanism to compel the executive to act during emergencies allows the executive to remain inactive. 

While there are no legal mechanisms to compel executive action during emergencies, in the sphere of politics, emergency inaction is a public policy choice. Eventually, such decisions will be evaluated by voters during elections (the so-called self-correctness promise of politics).

Antonios Kouroutakis is an Assistant Professor at IE University, Spain.

Suggested Citation: Antonios Kouroutakis ‘Inaction as a State Response to the Coronavirus Outbreak’ IACL-AIDC Blog (24 March 2020) https://blog-iacl-aidc.org/2020-posts/2020/3/24/inaction-as-a-state-response-to-the-coronavirus-outbreak