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The current pandemic has highlighted the frequently asserted assumption that emergencies are best addressed by powerful executives: they are said to be able to act faster, to have more information, and to dispose of the tools to implement necessary counter-measures efficiently. In order to do so, executives might have to suspend normal legal provisions and either adhere to special rules designed for an exception or operate in a legal vacuum (with the sole proviso that they will eventually be held accountable for their conduct after the crisis). From the perspective of democratic legitimacy, this approach has some serious drawbacks. How – and if so, to which degree – can the (temporary) suspension of core elements of checks and balances and the substantial restriction of fundamental rights be justified in order to overcome the crisis? The challenges posed by such understandings of emergencies and exceptions to theories of liberal democracy have been debated extensively with respect to the “global war on terror” since 9/11. Covid-19 has prompted new problems as to what happens to the separation of powers and fundamental rights when executives address an emergency. Among other things, we currently struggle with the question whether it is institutional checks, or more informal political ones that ultimately prevent executive overreach (or underreach, for that matter). The seminar will examine these fundamental problems from a comparative angle, particularly focusing on important transatlantic differences in how the separation of powers and fundamental rights are understood in “exceptional times”. In addition, we will ask who is responsible and accountable in systems of multi-level governance. Another issue will be the possible instrumentalization of executive emergency power in (neo-)autocratic political contexts.
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