It breaks no new ground to say that people behave differently in an emergency. But a look at how our federal and state governments have operated since the start of the COVID-19 pandemic shows the elasticity of the definition of “emergency,” and how it enabled politicians to arrogate to themselves powers they didn’t actually need in order to do their jobs.
In the popular imagination, the classic “emergency” situation usually arose during war. And what makes war a true emergency is that it forces changes on both the means and the ends of government. That is, the government’s normal operating procedure and the rights and protections it provides to its citizens are disrupted.
The war in Ukraine is a perfect example. In and around the city of Kharkiv, Russian invaders and Ukrainian defenders have been waging a ferocious battle for control of the region. The oblast government centered there cannot govern in the ordinary way — it is difficult for a legislature to meet when artillery shells are bursting all around them. Such a region can only be governed by emergency means.
The ends of government also change in an invasion. Whereas liberal democracies typically leave their citizens to conduct much of their daily lives as they see fit, an existential crisis like war requires joint effort, collective sacrifice, and the exclusion of some ends of government and the deprioritizing of all the others. Civil liberties are often neglected in war, due process shunted to one side in pursuit of the proximate goal of driving off the enemy invasion. So emergency means take the place of ordinary means.
Both changes persist for as long as the war rages because the emergency is a definable situation that ends when it ends. Compare that to the COVID-19 “emergency,” though, and the analogy falls apart pretty quickly.
The virus arrived in the United States and spread quickly, a rapidly changing situation that could reasonably justify some emergency measures. In my home state of Pennsylvania, for example, the first known cases were diagnosed on March 6, 2020. A week later, Gov. Tom Wolf believed the situation so dire that he required all schools to close for two weeks, making use of vaguely defined emergency powers granted to him under the public health laws.
These were the famous “two weeks to flatten the curve” that Americans across the nation were told would make the virus manageable. We all recall how that turned out. By April 9, schools were ordered to be closed until the end of the year.
Throughout this period, Wolf, like many governors, imposed these massive changes on people’s lives through executive orders and regulations instead of legislation passed by the representatives of the state’s residents. The most charitable view is that the virus was so unusual and spread so rapidly that there was no time in early March to wait for the Legislature: The governor had to act. But a month into the lockdowns, the legislators certainly had that time. They were in session, and the state Capitol was not besieged or on fire. The machinery of government, the means by which Pennsylvanians are governed, was functioning. The emergency, as it applied to the means of government, was already over.
The governor didn’t see it that way, and neither did a lot of his supporters. He kept on issuing emergency orders and running the state without input from the Legislature. Because the government was still working toward emergency ends, many believed that emergency means were justified. But there was no state of emergency anymore — which is not the same thing as saying there was no crisis or no threat. Government could resume unimpeded no matter how serious the matters before it.
The government still had to consider unusual, emergency ends — restrictions on private behavior, the marshaling of public resources toward new and temporary health programs — but it was perfectly capable of doing so through the normal process: legislatures passing laws, executives signing them into law (or not). Instead, the state refused to follow the rules set forth in the state constitution, leading to a democratic deficiency of the sort that Americans usually criticize other nations for when power is taken rather than granted with the consent of the governed.
In Pennsylvania, the Legislature solved this problem through state constitutional amendments passed by the voters in May 2021 to define and limit the governor’s power to rule by decree. Lawmaking returned to normal, and — surprise! — Pennsylvanians weathered the COVID spikes that followed just as well as the other states did.
In other states, the decrees of an “emergency” remain in force, even as life begins to return to normal. As Luke Wake of the Pacific Legal Foundation noted last month, California’s governor, Gavin Newsom, declared a state of emergency over two years ago. It remains in place today. Instead of the rule of law, this one-man control leads to inscrutable quirks of administration, with citizens unable to know how or why the law restricts their activities, only that it does and that they must obey.
New York Gov. Andrew Cuomo held his emergency powers for a full year, as well, and would likely have held them to this day if he had not been credibly accused of unrelated sexual harassment problems first and forced out of office. As in California and Pennsylvania, the state Legislature was in session and functioning. But the unrestricted power of an emergency decree allowed him to decide unilaterally to take actions including returning COVID-positive patients to nursing homes, contributing to thousands of avoidable deaths.
Americans usually understand the need to avoid concentrating power in one person’s hands, but the magic of an emergency decree makes many forget it and others hesitant to criticize it even though its legitimacy is self-bestowed.
Now, as the omicron surge fades into history and immunity spreads, whether by vaccine or by infection, even the emergency ends have become less necessary, insofar as both the threat and the government’s ability to stop the spread have decreased. Again, people differ in their willingness to let go of the safety blanket of “emergency” measures.
Emergencies frighten us, often with good reason. A true emergency goes beyond mere disruption and entails threats to lives and property. COVID qualified as such an emergency, at least at first.
There is something in the human makeup that tells us to respond to a crisis with the embrace of a strongman’s rule. This was the force that created feudalism — I’ll give up some rights if you agree to protect me — and it continues to color human judgment in our supposedly enlightened age.
We have all heard, usually in the context of national security debates, the famous line from Benjamin Franklin, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” The liberty Franklin was talking about applies more closely to this situation than, say, the Patriot Act, about which it was quoted frequently. Franklin was concerned that the colonial government of Pennsylvania would acquiesce in the Penn family’s refusal to be taxed, accepting instead its offer of a lump sum to pay for defense spending in the French and Indian War. The money came with strings attached, though: It required the Legislature to acknowledge that it had no authority to tax the proprietors’ lands.
The Legislature lost that fight when the colonial governor vetoed the legislation that would have taxed all estates equally. Franklin said that the veto reduced “a free people to the abject state of vassalage,” and the Penn family’s privileges were among the complaints that persisted until the Revolution eliminated them.
Then and now, some in Pennsylvania’s government thought that special concerns meant ignoring basic principles of free government. In both cases, the right answer eventually won out, but not without a considerable struggle. If we learn anything from Franklin or from COVID, it should be that emergencies come and go, but the principles of limited government should not be permanently brushed aside to accommodate them.
Kyle Sammin is editor-at-large at Broad + Liberty and the co-host of the Conservative Minds podcast. Follow him on Twitter @KyleSammin.
