Binding the Bound: Emergency Executive Lawmaking and Democratic Legitimacy in the Pandemic

Abstract

One of the side effects of the COVID-19 pandemic has been a precipitous increase in unilateral executive lawmaking by governors across the country. These actions engendered a storm of controversy as decisions relating to the virus quickly became tinged with political considerations, and this public dissent eroded the legitimacy of executive government. This Note discusses the trade-offs between democratic legitimacy and technocratic agility in executive emergency lawmaking. Drawing on a fifty-state survey, this Note shows how although drafters of these statutes attempted to balance executive power with legislative constraint, the statutes did not anticipate a long-duration, complex emergency like COVID-19. The statutes therefore generally do not allow substantive input by the legislature, and this has resulted in judicial showdowns and legislative pushback, eroding the legitimacy of executive action and more importantly endangering responses to future emergencies. This Note argues that in order to maintain robust and effective emergency power statutes in all states for future similar emergencies, states should revise the emergency power statutes to include more substantive legislative input, while retaining as much executive agility as possible. This Note suggests a model for such a revision to state statutes, inspired by the Congressional Review Act.