Ethan Yang
brownstone.org
Ethan Yang is pursuing a JD from the Antonin Scalia Law School at George Mason University.
The Covid-19 pandemic sparked a much-needed conversation on the use of emergency powers as they are fraught with power temptations and only suboptimal public benefit. President Biden’s failed vaccine mandate for private businesses and Prime Minister Trudeau’s use of emergency powers against the Canadian truck protest further urgency to this discussion and raise critical questions about what incentives inspired these policies.
A substantial economics literature, known as public choice, grapples with these problems and suggests that governments, like private actors, act in their own self-interest. That is, they seek to maximize their own benefit while operating within their institutional constraints. When it comes to Covid-19, the behavior of state actors has been no different than any other disaster. Disaster scenarios create opportunities for political actors to make rational, purposeful, power-maximizing decisions within the political boundaries set around them. Thus, contrary to the idea that governments require more discretion during times of crisis, institutional constraints matter just as much or perhaps more during emergencies in order to rein in political overreach.
Exploring the Efficacy of Emergency Power Declarations
There is a wide variety of literature exploring the public choice implications of expansive government power. Two recent papers on the political economy of emergency powers by Christian Bjørnskov, and Stefan Voight, illustrate these implications during the pandemic. These studies appeared in the European Journal of Law and Economics (2020) and the journal Public Choice (2021). Studies like these are especially insightful because emergency powers provided the primary framework many governments used to conduct public health policy in response to Covid-19.
The 2020 study compares the use of emergency powers worldwide in response to Covid-19. Historically, emergencies of all kinds have been a pretext for expanding government power, and our experience with Covid-19 shows this tendency. The authors note, “this time was not different.” To that end, they find that many governments worldwide implemented heavy-handed policies that had little relationship to mitigating cases and deaths. Instead, political leaders tended to make power-maximizing decisions based on political constraints inherent to their countries.
For example, in most liberal democracies which maintain substantial checks on power, lockdown policies were limited to temporary business closures, school closures, and stay-at-home orders. On the other hand, countries with fewer restraints on power saw more aggressive lockdowns that extended into the realm of targeting political enemies and forcing infected individuals into quarantine facilities. Across all countries, the deployment of emergency measures followed the ease of their use afforded by institutional and political constraints.
Their 2021 examination examined the use of emergency powers from 1990 to 2011 in 122 countries and concluded that there were no clear benefits from their use. They found that emergency power when controlling for various other factors, such as the severity of the disaster being responded to, did not save more lives. They are however, correlated with human rights abuses, degradation of democratic institutions, and even increased death. Moreover, the authors suggest that these emergency powers are potentially associated with the crowding out of private responses to disaster situations, which could possibly create more effective solutions than ones implemented by public officials.
While these two studies outline the limits and dangers of emergency powers, they also demonstrate how institutional constraints played a key role in guiding pandemic policy. After controlling for differences in government structure, Bjørnskov and Voight observe,
“(T)hat countries enjoying a high level of the rule of law as well as a high level of press freedom are less likely to declare an SOE [State of Emergency], whereas neither the level of democracy nor the level of economic development are significant predictors for declaring an SOE.
They also note that states with more restrictive constitutional provisions on emergency powers were less likely to use them. At the same time, countries with fewer constraints pursued more extreme policies, such as suspending parliaments, closing courts, invoking a military presence, and suppressing journalists.
Such heavy-handed responses are indicative of the classic power-maximizing tendencies outlined by public choice theory. The overbearing responses occur when political actors figure that the mandates are easy to implement and that they can derive personal benefit from them, but the responses also end up having little to do with public health outcomes. However, strong institutions, such as the rule of law, free speech, and checks on power, create incentives for public officials to act in a manner that satisfies the public or at the very least carries popular support.
The Need to Acknowledge Unintended Consequences
The justification for emergency powers is that the government must act swiftly and with few constraints to address a disaster situation to prevent further calamity. The real challenge in all ostensibly well-intentioned government programs is seeing the unintended consequences. Affording public officials the ability to implement swift and decisive policies may seem attractive at first glance, but that comes with substantial drawbacks. For example, Bjørnskov and Voight’s 2021 study found that emergency powers correlated with more deaths, not fewer. They write,
“(P)hysical integrity rights are repressed more substantially in more serious disasters in countries with SOEs that offer more benefits to the executive. We consider that result to confirm our counterintuitive finding that political actors in certain countries abuse emergency provisions during natural disasters.”
In short, more power granted to the government leads to a higher likelihood that they will abuse that power. In many cases, this abuse of power can simply be due to regulatory hindrance and incompetence, resulting in the disruption of private solutions. For example, in the United States, we saw how heavy-handed government intervention caused more trouble, not less, in containing Covid-19, as seen with nursing home outbreaks, school closures, and restaurant closures. In all these instances, government fiat replaced the comprehensive ecosystem of private activity.
Then, there are clear abuses of power for various authoritarian ends, which Bjørnskov and Voight note are more common in countries with fewer constitutional limits on authority. These abuses of power include targeting political enemies, widespread human rights abuses, the suppression of the free press, and the intentional degradation of democratic institutions. This unbridled use of power furthers the notion that institutional constraints and incentives influence political agendas during emergencies and times of tranquility. Moreover, it solidifies the idea that a lack of institutional constraints prompts an abuse of political power.
It is an inescapable fact of political life that government officials are not omniscient or purely altruistic. Thus a well-implemented system of checks on their power serves to limit the excesses associated with overly bold and ambitious policy agendas. Emergencies do not provide immunity to these shortcomings.
Bjørnskov and Voight write,
“Our evidence on the side effects of emergency constitutions indicates that rather than enabling governments to deal effectively with disasters, and in particular limiting the number of fatalities, most governments use them for other purposes.”
As a result, the authors recommend that we ditch the assumption that governments will simply do what is best during times of crisis. Instead, they will act in their self-interest, and the institutions around them are vital in curbing those personal interests. Some reforms suggested by the authors include firm time limits on emergency declarations, constraints on the overall use of power, and active checks on executive authority through institutions, such as a legislative override and an assertive court system.
Taking all this into account, the research of Bjørnskov and Voight on the use of emergency powers not only reveals their inherent dangers but applies timeless principles to a timely topic. They remind us that governments make rational, self-interested decisions based on their respective political frameworks.
Covid-19 has been no different than any other disaster. Politicians made the most out of the situation based on the incentives at hand. Systems that incentivize public officials to do the right thing through sound checks and balances saw the least abuse of power. Conversely, those that afforded more discretion to executive figures saw more irresponsible and disruptive behaviour.
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