Thinking About Executive Power Post-Pandemic

Conor Casey

University of Liverpool

This post considers what lessons the COVID-19 pandemic has for debates over the appropriate place of the executive branch in contemporary constitutional government. (By ‘executive branch’, I refer primarily to the actors at the apex of executive authority – presidents, prime ministers and their cabinets.) I suggest the main lesson is that it is imperative to be well-rounded in our assessment and avoid conceptual myopia that can lead to excessive anxiety about executive predominance or a too cavalier attitude.  

Executive Responses to the COVID-19 Pandemic 

When COVID-19 struck in 2020, many executives deployed public power in staggering amounts to curb, treat, and eradicate the virus. The powers often used were unrivalled outside wartime. Common measures encompassed restrictions on movement, social gatherings, internal and external travel and many kinds of economic activity, as well as mandating adherence to practices like social distancing and mask-wearing. Executives simultaneously took steps to ameliorate the devastating socio-economic effect of the virus and the measures taken to curb it. Actions included swiftly rewriting budgets to stimulate flagging economies, freezing rents, implementing eviction moratoriums, and rapidly formulating and administering new forms of social welfare and socio-economic protection like subsidising businesses and the self-employed. They also orchestrated ambitious campaigns and activities like tracking and modelling infection/death rates, mass vaccination and promoting public health best practices. 

Of course, not every system saw its officials proactively move to protect its populace from the virus. Some instead engaged in what Pozen and Schepple dub ‘executive underreach’, which they describe as a “wilful failure to address a significant public problem that the executive is legally and functionally equipped (though not necessarily legally required) to address.” This is an insightful critique that can be reframed to make another point about executive authority.  Let’s, for a moment, rejig the critique to concern an executive willing to address a significant public problem but structurally incapable of doing so due to functional/legal hamstrings. Thus reformulated, we would be left with another serious problem – executive weakness. 

When the pandemic struck, many executives could marry Hamiltonian qualities of dispatch, unity of purpose, and flexibility, with technocratic expertise to act to protect life, health, and socio-economic stability. Consider what might have happened if modern executive branches were significantly diminished actors, either through “deconstruction of the administrative state” or seriously curbing their ability to use unilateral or extensive delegated power. It is hard to imagine them mustering the same information, knowledge, and personnel needed to respond to the challenges of the pandemic and its fallout. Just like an executive deliberately engaged in underreach then, a weak executive unable to act is dangerous to the common good.

At this point, some may interject: “isn’t this just an argument for needing a powerful executive only during times of extraordinary crisis?” This line of objection neglects, I suggest, that a robust executive branch is not something that is conjured overnight by enacting an emergency powers statute. Instead, the infrastructure underpinning contemporary executive authority has been built up over time, as executives accumulated ever-greater prominence in political life. This infrastructure includes a vast range of personnel – both political and technocratic – responsible for the formulation and execution of law and policy; including core executive staff, countless civil servants and technocrats advising across every conceivable policy area, and public sector workers involved in the concrete implementation of policy in fields like health, social welfare, and policing. Another facet of this infrastructure is the institutional capacity that lets the executive branch analyse and choose amongst complex policy options, draft statutes, and issue detailed regulations and guidelines. If this infrastructure were not already in place and well-entrenched in constitutional systems, states would have faced far greater institutional hamstrings responding to the current crisis.

Acknowledging the above does not require endorsing any executive policy response to the pandemic as optimally good or fair. This is a topic of complex moral debate. But, interestingly, discussions about how states should respond play out against a shared assumption about executive authority. Parties on both sides of the debate assume executives will just happen to enjoy the personnel, capacity, and power to enact better plans for the common good. But this cannot be taken as a banal constitutional given, as executive predominance is not a natural constitutional baseline. Instead, it is the long-term consequence of decisions by constitutional actors to shift from a classical tripartite separation of powers toward executive-centred government. This makes it a situation that could, theoretically, be unwound with enough political will. 

One lesson I think we can take from the above, then, is that a robust executive has important positive constitutional value that should not be taken for granted and still less wished away. 

Causes for Concern

We ought to recognise the positive value of a powerful executive, but we should not be cavalier. The pandemic has highlighted the risks expanded executive discretion can have for other essential principles underpinning good government. 

Rule of Law Values

One of the most troubling behaviour patterns in stable constitutional democracies during the pandemic has been the disrespect shown for core rule of law principles. In many systems, there has been persistent elision by executive actors of legal rules and public health guidance—equivocation and obfuscation on whether a particular public health “requirement” is a legal obligation carrying a sanction or merely a recommendation. It is possible in some systems that there has been a deliberate blurring of the line between advice and law to secure greater conformity with public health advice. 

In some countries, this blurring has led to street-level officials – police and welfare officers, for example – enforcing guidelines as if they had a legal basis. Such behaviour is obviously contrary to the rule of law, whether conceived in ‘thin’ or ‘thick’ terms. It widens the scope for arbitrary action by state officials. Generally, it conveys indifference to people’s dignity as self-determining moral agents, whatever collateral benefits it might have in securing public compliance with a desired policy.

Balancing Technocracy and Political Judgment

Another common trend across many legal systems has been the considerable de facto power accrued by technocrats working within the executive branch. For example, medical-scientific experts have played a leading role in helping set up and calibrate lockdown measures adopted by governments, advising on the timing of their relaxation and tightening. The high prominence given to public health technocratic advice is, in many respects, entirely unobjectionable. Indeed, as with any complex policy area, ignoring the advice of officials with professional expertise risks multiplying the likelihood of anchoring executive policy on false facts or faulty theories that can have demonstrably serious negative effects.

But power imbalances between the political and technocratic elements of the executive branch can cut both ways. We should be conscious of the danger of structuring internal executive policymaking in a way that accords so much weight to technocratic advice that it risks abnegating all-things-considered political judgments; the kind executives must make in the interests of the common good, in all its complexity, richness, and open-endedness. De facto ceding of power through excessive deference to technocrats risks myopic policymaking masquerading as apolitical expertise. It also obfuscates the fact that executive decisions, of any significance, will have an inescapably small-p political element for which executives ought to be (and ought to be seen to be) democratically accountable.

Going Forward

It is important to be measured when critically analysing how public power is allocated in a polity and whether it is distributed in a way that is conducive to securing the fundamental end of constitutional government – the common good. For those working with the end goal of the common good in mind, an important lesson of the pandemic is that choosing to assess executive-centred government with a yardstick primarily concerned with the risk that the executive might abuse its power is ultimately self-undermining. 

 It is self-undermining because single-minded concern with over-concentration of power in the executive can blind us to a whole universe of political risks as corrosive to the common good. Examples of other risks that public power ought to address include threats to public health and serious socio-economic disruption. The last few months have demonstrated, it may well be that such risks are only capable of being tackled by a powerful administrative state with a motivated executive at the helm. 

However, it is also myopic to ignore the risks of executive-centred government. Going forward, then, public lawyers should focus more attention on questions of institutional design, both of and within the executive branch. They should do this with a view to keeping the many benefits of a powerful executive while channelling and structuring its actions to be consistent with compelling normative values also important to a well-ordered polity, like the rule of law. More thought could also be fruitfully directed at how to best structure the internal relationship between the political executive and bureaucracy to avoid the extremes of partisan politicised policymaking on the one hand or a form of government by technocracy on the other. These are not easy tasks, but ones that demand careful attention.

Conor Casey is a Lecturer in Law at the University of Liverpool School of Law and Social Justice.

Suggested Citation: Conor Casey, ‘Thinking About Executive Power Post-Pandemic’ IACL-AIDC Blog (9 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/9/thinking-about-executive-power-post-pandemic.