Do executive emergency powers threaten democracy?

“The truth is that all men having power ought to be mistrusted.”

― James Madison

In a time of crisis even "free" democratic societies err on the side of decisive executive action in order to control the situation. This is inevitable and comes with the territory.

But the extent in which essential pillars of a democratic society have been knocked off their foundations through the most draconian measures imaginable, all decreed from a single executive office is unprecedented. Moreover, it has been on display in democracies around the world.

Governance in a time of emergency

But if Madison is right, even in an unprecedented emergency some checks and balances need to remain in place, on the federal, state and local levels for democracy to survive.

“While we recognise the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, we urgently remind states that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory” (UN experts, quoted in the Independent)

The federal level 

This is currently especially evident on the federal level, not only because the less than sure footed demeanor of the Commander in Chief during this crisis,  but because it is in the Oval Office where the most power resides even in normal times. The State of Emergency declarations concentrate even more power in one hand. That this is an election year adds urgency to the democracy question for our country in particular.

The concern for democracy should not be confused with introducing even more politics into the crisis than there is already. Politics certainly can have adverse effects to the well being of people: In the flu epidemic of 1918 quarantine rules were relaxed shortly before the November election. The result was an increase in infections and deaths. Isolation measures had to be brought back and were less efficient afterwards. (NYT)

But politics in the original meaning of the word can also be good: It is a good thing, that the $2 trillion relief deal was not pushed through without discussion. This type of expenditure will define our nation's future for some time to come. It can't be taken lightly, no matter how urgent the situation. It is a clear case where expediency needs to be paired with prudence. Luckily House and senate are still functioning and could negotiate a package the way it is intended by the constitution. But how much longer?

Governance by disaster team: Conflicting messages

The average age of the U.S. Senate is 61, and Democratic leadership of the House of Representatives is between the ages of 79 and 80, well within the ranges most vulnerable to Covid-19. Experts fear that the virus could incapacitate Congress when legislative oversight of the executive branch is needed most. (The Intercept)

The State level

The situation is even more dire  in our State of Maryland where the legislature has only a 90 days session which was even shorter this year. While the Governor deserves high marks for his decisive action and clear messaging, it is of concern that our peculiar way of running the State legislature is providing an imbalance and essentially the lack of deliberation beyond an executive crisis team.

State governance by decree: MD Governor Hogan widely praised for
a decisive even handed tone

There is no easy answer to this but is is disconcerting that all of our delegates and senators are limited to sending out newsletters via email which are limited to repeating whatever the State has decided as the current action.

There is currently no provision on how the legislature can convene other than in person, something that was rightly deemed as too risky in the confined chambers in the historic State House. So the already short session was cut even shorter. It doesn't appear that any alternative, creative way of utilizing the many delegates and senators as an additional resource in managing this crisis is actively discussed or investigated in Maryland. An inquiry to senate President Ferguson remained unanswered to date.

All things considered, given the leadership we currently see in the State, living in Maryland is a better option than in many other states. Still, given that this crisis is not short and geographically limited like a hurricane or flood, efforts should be made to maintain as many checks and balances as possible. With an Assembly hibernating until the next season, there is no balance.


The local level

On the local level, Baltimore City Council and the Mayor have closed City Hall to public access and increased broadcasts instead. This, too is prudent but potentially in conflict with open meeting laws. Deliberations without public input is problematic. But technology isn't always a savior. Secure and reliable access is by no means a given. Following the deliberations via Baltimore's Charm TV is now hit and miss, probably due to the high number of using this tool which, of course, doesn't allow public participation.

Mayor Young declares State of Emergency

Technology solutions

Would it be possible to meet in different quarters where seating could accommodate social distancing? The German Parliament with over 600 seats adjusted temporarily their charter to allow for a vote on their $800 billion relief package this week with two seats left open between members. The European Parliament will  will hold an extraordinary plenary on 26.03 using a distant voting system.

The crisis is not just a threat to the lives and livelihoods of people across the globe but serves also a severe stress test for democracy. (The Brussels Times)

Utah and Pennsylvania are establishing remote or proxy voting now. Could there be public committee deliberations via internet platforms?

“As lawmakers fall sick, legislative sessions across the country are being cut short out of legitimate fear of the pandemic. This crisis will only worsen. It’s naive to assume that it will be possible to reconvene in a few weeks, so legislatures must make necessary changes to procedures now.” ,” David Segal, executive director of Demand Progress and a former Rhode Island state representative. Demand Progress is a a non profit seeking to protect the democratic character of the internet — and wield it to make government accountable and contest concentrated corporate power.

On Tuesday this week Congress held a a mock remote hearing via Zoom as Marci Harris, a co-organizer reported on Medium, "kicking the tires of available technology" she says. An official report will be issued to Congress shortly. Harris is CEO of PopVox, an online platform for legislative information and former congressional staffer.

Online voting or transmission of sensitive information in committee meetings is considered by many experts as risky and open to the danger of hacking. As far as voting goes, voting by mail appears to be the best option, as long as isolation is required. Maryland may have to go that route for the already postponed primaries. 

Regardless of the various technical solutions, a true democracy cannot hand over all power without being able to make the balancing elements of democracy work.

Klaus Philipsen, FAIA

Coronavirus could be used by authoritarian leaders as excuse to undermine democracy, experts warn (The Independent, UK)