In case you haven’t noticed, most U.S. state governors have issued a state of emergency because of the coronavirus crisis — the White House did the same — raising serious constitutional issues.
According to the Constitution, be it state or federal, the executive’s job is very minimal. Executives are to execute existing law. Executive power is limited by how many laws the legislature writes.
Executives are merely the enforcement agent of the most important branch: the legislative branch. Executives can’t make law, they can’t tell people what to do, and they can’t fix or harm the economy. If you read the Constitution, they can hardly do anything.
These facts seems to fly out the window during a national or state level crisis, which is why executives love a good crisis. During a crisis, people generally demand executives be more than they are constitutionally empowered to be.
In reality, people look for a “king” during a crisis, and executives are more than willing to assume the role. Unfortunately, they rarely give up the power acquired during the crisis, and their power grows and expands upon itself with each subsequent crisis.
In an academic paper of mine, I backed up this claim. For example:
“Robert Cushman (1944) says, ‘No nation has ever fought a tough war without overriding for the duration some of the civil liberties of its people’.
“Justice Thurgood Marshall says, ‘History teaches that grave threats to liberty often come in times of urgency, when Constitutional rights seem too extravagant to endure’.
“This acknowledged curtailment of civil liberties for security during a war or crisis has been a cause for concern for many government officials and citizens alike. Further, data support the claim that liberty is sacrificed for security during war.
“Epstein et al (2005) find that, indeed, for non-war related cases dealing with issues of liberty and security, Supreme Court rulings favor security over liberty to a higher extent during war than during times of peace.”
Many times, executives take on the power of a king whenever they declare a “State of Emergency.”
We’ve seen flamboyant displays of kingship by U.S. governors throughout the coronavirus situation. It’s about time we the people educate ourselves about where our governors and executives get the power to do what they do and learn whether or not a state of emergency is constitutional.
Even though the people are the first and most important source of power for executives during a crisis, we usually demand that someone fix the problem (crisis). Historically, that someone hasn’t been our local governments, local communities, churches, friends and family or even the legislature; it’s almost always the executive, be it the U.S. president or the state governor.
Here’s another quote from the same academic paper I referenced above:
“Research has shown that citizens are more willing to lower their support for civil liberties the more their sense of threat increases (Davis and Silver, 2004; Hetherington and Suhay, 2011).
“This means that there is a correlation between an individuals’ feelings of physical security and desire for civil liberties. ‘Many average Americans become susceptible to ’authoritarian thinking’ when they perceive a grave threat to their safety’ (Hetherington and Suhay, 2011, 546).”
That’s a big deal. We are likely to begin advocating for authoritarian power if we feel endangered as coronavirus has shown us. Let that sink in.
It’s a statistical fact that the other branches of government will defer to the executive during a crisis. In other words, the other two branches step back from their role of checking executive power and allow executive power to run rampant using a state of emergency.
Research shows that when the executive branch has popular support from the citizenry, the other branches of government are more deferential to the executive. During a time of crisis, the executive seizes tyrannical authoritarian powers while the other two branches either stand by and let it happen or participate in giving that power to the executive.
A huge reason for this deference is the immense support the executive enjoys from the citizenry during a crisis. The legislative branches don’t want to irritate their constituents by countering the power of the executive and “the judicial branch is concerned about legitimacy, therefore, the overall mood of the citizenry could be one of the environmental factors that contributes to the court’s willingness to rule in favor of security at the expense of civil liberties after a war or national tragedy (Clark, 2009; Ginn, Searles and Jones, 2014).”
There is ample evidence to support the fact that whenever there is a crisis, liberties are always sacrificed for security. This reality has had devastating long-term effects on the Constitution and our rights, both at the state and federal level. As businesses and individuals struggle to survive amidst governor mandated lockdowns and states of emergency during coronavirus hysteria, we’re starting to recognize the dark side of legitimizing executive authoritarian power.
When the legislative defers to the executive or writes a law that gives emergency powers to the executive during a crisis, are they operating off of a constitutional directive/provision or have they moved into the realm of arbitrary power? In other words, is the legislative giving away power they don’t even have themselves and therefore don’t have the power to give away?
The answer is pretty straight forward as it pertains to the U.S. Constitution. According to the Congressional Research Service: “With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency.”
Let me swiftly dispel the lie that somehow the Constitution gives permission to suspend the Constitution during a crisis. I’m not sure where the notion that the Constitution should be suspended during a crisis originated, but it is false. The U.S. Constitution gives no provision for suspension during a time of crisis.
Habeas corpus, or the right to a fair trail and protection against indefinite incarceration without said trail, is the only right the Constitution allows to be temporarily suspended, in “Cases of Rebellion of Invasion”. According to the Cornell Law School Legal Information Center:
“Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.”
So, even the one provision that can be suspended, can only be suspended by Congress, not the executive. This means that if these branches do allow such executive power, they themselves are violating the Constitution.
I haven’t read through every state constitution in the U.S. … yet. But I have read the North Carolina Constitution and there’s nothing justifying the coronavirus emergency powers our executive is now possesses . . . even if some of those powers come legislatively via the North Carolina Emergency Management Act. Although, Gov. Cooper is skirting the directives in this law as well.
Almost all executive power during the coronavirus crisis comes from pre-existing legislative laws and are not constitutional powers; they are implied or inherent powers.
Many proponents of executive power during a crisis argue that such powers are implied or inherent. They use phrases like “promote the general welfare” or “necessary and proper” to justify extra-constitutional arbitrary emergency powers. Of course, these are phrases from the U.S. Constitution, but they shouldn’t be used to justify state-level executive power.
Much of the executive power running rampant in U.S. states today due to coronavirus isn’t constitutionally justifiable, no matter what many people argue.
Unless the state’s constitution itself explicitly states that its rule over the state government can be suspended during a crisis (how is crisis defined?), or directly gives the state legislature the right to give authoritarian and extra-constitutional powers to the executive during a crisis, every U.S. governor using executive orders and state of emergency declarations as if they are law to dictate how private individuals are running their lives and businesses are acting unconstitutionally and arbitrarily.
This is something the founders, who eschewed any potential authoritarian power like the one they escaped under the English King, would never ever approve of.
It’s our job as citizens to know these things. Read your state constitution and educate yourself on the constitutional legitimacy of your executives’ power, and punish them accordingly in November.
We need to stop demanding for an authoritarian executive every time a crisis like coronavirus comes around. Because, eventually, after enough good crises, we won’t have a say on how authoritarian our executive is.
Madison knew it in his time and may we remember it now: “Crisis is the rallying cry of the tyrant.”
This article is used by permission and has been edited for publication on this site.
Christin McMasters is a South Carolinian now residing in North Carolina and has a Ph.D. in political science. She is a budding blogger and political science instructor, and her passion is politics.
Using her keyboard as her weapon of choice, Christin imparts some of her excitement, passion and knowledge about American government on her website, TheLibertyBelleNC.com.
Follow Christin on Facebook TheLibertyBelleNC and Twitter @LibertyBelleNC.
