You probably heard this concern long before the pandemic. Critics on the left and right alike blame their political opponents for violating the rule of law. It’s an easy way to criticize a decision you disagree with. But the rule of law is nonetheless an essential element of a functioning representative democracy, a fair justice system and civil rights.
Being a nation of laws means that the power of public officials -om police chiefs and governors to bureaucrats and Supreme Court judges – is limited. Government officials cannot simply govern as they wish. They must work within the framework of the system of laws put in place by those who came before them.
The COVID-19 pandemic has demonstrated how willing some government officials are to push those boundaries.
Certain deviations from the rule of law are permitted. Emergency powers laws give public officials the ability to temporarily bypass certain restrictions on their power, such as checks and balances, open debate, transparency requirements and judicial oversight. But in response to COVID-19, elected officials, especially governors, have taken those powers to new heights by issuing broad and lasting orders that have affected almost every aspect of our lives. This poses a new challenge to the concept of the rule of law.
The Michigan pandemic experience provides a good example, and similar problems have occurred in other states. When authorities first identified SARS-CoV-2 in the Great Lakes state, the government. Gretchen WhitmerGretchen WhitmerThe Hill’s Morning Report – Brought to you by Goldman Sachs – Democrats look at medium-term strategy as the Senate returns to work. What does driving a car have to do with debt collection? Whitmer says she spoke to Biden about infrastructure after the flooding invoked a law that apparently gave her full control for as long as she wanted. No one knew if this was legal – the law hadn’t been touched for 50 years and had never been applied so widely before. Whitmer then unilaterally issued hundreds of executive orders that affected every resident and were enforced with criminal penalties. Governors of other states have used similar approaches to tackle COVID-19.
If political leaders and bureaucrats can empower themselves to avoid the limits inherent in the rule of law, are these governments of law or of men? There is no clear answer, but it is a question that must be asked.
Another challenge to the rule of law presented by COVID-19 was the way governments implemented their emergency responses. The unprecedented ordinances were impossible to enforce in any depth or consistency. The warrants applied and who could be subject to criminal sanctions were left to the discretion of enforcement agencies, such as the police. Regardless of what one thinks of the state of law enforcement in America, the police should not have this kind of power, as it calls into question the equality of protection under the law. law.
One may be tempted to dismiss these concerns, given the real threat posed by COVID-19. Public officials can try to assure the public that they are “following the science” so that the rule of law can give way. But if the rule of law is to have real meaning, there can be no exceptions. Even in times of crisis, the powers of elected officials and bureaucrats must be limited and subject to a system of checks and balances. History is replete with examples of political leaders who have acquired inappropriate and dangerous levels of power by appealing to an emergency.
Most recently, politicians from both main parties have attempted to circumvent the rule of law in questionable ways. In 2019, thenPresident TrumpDonald TrumpPence Refused To Leave Capitol During Riot: Book Officials Arrest ‘Roman Gladiator’ Who Stormed Capitol While Filming It For His Mother Overnight Defense: Milley Reportedly Warned Trump Against Iranian Strikes | Pulitzer Prize-winning photographer killed in Afghanistan | 70 percent of active duty military personnel are at least partially immunized PLUS tried to finance his wall by declaring a state of emergency. Later that year, the governor of Michigan attempted to ban flavored vaping products by declaring a public health emergency. And earlier this month, the Governor of New York. Andrew CuomoAndrew CuomoThe Hill’s Morning Report – Brought to you by Goldman Sachs – Schumer sets firm deadline for bipartisan infrastructure plan New York AG office questions Cuomo on Saturday in sexual harassment investigation The gap between the number of COVID-19 deaths in New York and federal figures widen: AP PLUS analysis invoked emergency powers to support efforts to reduce gun violence in the Big Apple. Don’t be surprised if more governors follow these examples.
The COVID-19 pandemic has demonstrated that politicians are ready to push the limits of unchecked executive power. At both state and federal level, policy makers need to better define the conditions under which public officials can evade the rule of law. This serious power should only be granted temporarily and should be subject to legislative or judicial review, preferably both. The style of American government demands it.
Michael Van Beek is Research Director at the Mackinac Center for Public Policy in Midland, Michigan.