In this morning’s Mises Wire article, I mentioned that the true nature of the ruling class tends to be revealed in times of emergency. Moreover, it is during declared “emergencies” that it becomes clear that ordinary constitutional limits on state powers—such as the much touted “balance of powers” tend to do little to actually restrain regime power.
Not all constitutional systems are equally bad in these situations, of course, but the Covid Panic and the ensuing crisis helped to illustrate that most federal, state, and local government institutions are very poorly constructed if our goal is to limit state powers in times of emergencies. Specifically, in the United States, the federal government and the state governments are organized so that the same agency declaring an emergency are the same agency that exercises power during the emergency. The way it unfolded during the covid crisis, for example, it was state governors who had the power to declare emergencies, and then it was the state bureaucracy—which reported to the governor—that enjoyed enhanced political power during the emergency.
As a result, it was often the exact same individuals who both declared emergencies and were charged with exercising immense power so long as the emergency endured. In most states, these people were the governor and his close advisors.
Ending the emergency—and thus the rule by decree enjoyed by the executive branch—often required a high degree of collective action from state legislatures. In most states, ending a state of emergency required at minimum a that at least one house of the legislature adopt a resolution ending the state of emergency. Most states require both houses adopt this resolution.
In some states, if the legislature is out of session, the governor must call the legislature into session for the assembly to consider resolution ending a state of emergency. Needless to say, governors have no reason to do this.
Moreover, most states allow the governor to renew declarations of emergency repeatedly—in some cases forever—without approval from the legislature.
This all requires significant organization and collective action on the part of legislatures to bring together opponents of declarations of emergency and vote on these resolutions. Declarations of emergency, on the other hand, tend to require a decision from a single person. In other words, the system is heavily biased in favor of enacting and extending emergency orders while biased against efforts to end them.
As an illustration of how poorly the American system provides any meaningful checks against these “emergencies,” F.A. Hayek, in volume 3 of Law, Legislation, and Liberty, shows that it need not be this way. There is no reason why the same people declaring the emergency should be the same people who enjoy greater emergency powers.
I include a long quotation here to give a more full sense of Hayek’s thought on the matter. Like much of Hayek’s work, I think we could describe this as decidedly mild and most certainly not radical in the tradition of Molinari or Rothbard. Nevertheless, the fact that even Hayek thought it dangerous to centralize emergency powers and emergency-declaration powers within a single agency illustrates just how far off the mark most American governments are in this regard:
The basic principle of a free society, that the coercive powers of government are restricted to the enforcement of universal rules of just conduct, and cannot be used for the achievement of particular purposes, though essential to the normal working of such a society, may yet have to be temporarily suspended when the long-run preservation of that order is itself threatened. Though normally the individuals need be concerned only with their own concrete aims, and in pursuing them will best serve the common welfare, there may temporarily arise circumstances when the preservation of the over-all order becomes the overruling common purpose, and when in consequence the spontaneous order, on a local or national scale, must for a time be converted into an organization. When an external enemy threatens, when rebellion or lawless violence has broken out, or a natural catastrophe requires quick action by whatever means can be secured, powers of compulsory organization, which normally nobody possesses, must be granted to somebody. Like an animal in flight from mortal danger society may in such situations have to suspend temporarily even vital functions on which in the long run its existence depends if it is to escape destruction.
The conditions under which such emergency powers may be granted without creating the danger that they will be retained when the absolute necessity has passed are among the most difficult and important points a constitution must decide on. ‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded – and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist. Indeed if all needs felt by important groups that can be satisfied only by the exercise of dictatorial powers constitute an emergency, every situation is an emergency situation. It has been contended with some plausibility that whoever has the power to proclaim an emergency and on this ground to suspend any part of the constitution is the true sovereign. This would seem to be true enough if any person or body were able to arrogate to itself such emergency powers by declaring a state of emergency.
It is by no means necessary, however, that one and the same agency should possess the power to declare an emergency and to assume emergency powers. The best precaution against the abuse of emergency powers would seem to be that the authority that can declare a state of emergency is made thereby to renounce the powers it normally possesses and to retain only the right of revoking at any time the emergency powers it has conferred on another body. In the scheme suggested it would evidently be the Legislative Assembly which would not only have to delegate some of its powers to the government, but also to confer upon this government powers which in normal circumstances nobody possesses. For this purpose an emergency committee of the Legislative Assembly would have to be in permanent existence and quickly accessible at all times. The committee would have to be entitled to grant limited emergency powers until the Assembly as a whole could be convened which itself would then have to determine both the extent and duration of the emergency powers granted to government.
So long as it confirmed the existence of an emergency, any measures taken by government within the powers granted to it would have full force, including such specific commands to particular persons as in normal times nobody would have the power to issue. The Legislative Assembly, however, would at all times be free to revoke or restrict the powers granted, and after the end of the emergency to confirm or to revoke any measures proclaimed by the government, and to provide for compensation to those who in the general interset were made to submit to such extraordinary powers.
None of this would definitely solve the problem of abuse in this case, of course. It is entirely possible that the elites in the agency declaring the emergency, and the agency enjoying emergency powers, share similar or nearly identical ideological and material interests. In this case, decentralizing these powers into two separate agencies would not make much difference. Only a separation of powers between two distinct and opposed groups of political elites—opposed along economic, geographic, ideological, religious, ethnic, or linguistic lines—would have much chance of solving the problem.
