I have posted this short new essay on SSRN titled The Constitutional Emergency Powers of Federal Courts. Here’s the abstract:
Discussions about whether governments in constitutional democracies possess emergency powers during exigent times focus exclusively on the political branches. But none of these discussions envision the judicial branch as an affirmative agent in designing government policies to deal with periods of crisis. When the judicial role during emergencies is considered, the courts are envisioned only as possible checking agents against potentially abusive uses of emergency powers that the political branches might invoke. The paradigmatic context for the judicial role is pictured as a response to a new government measure, which the emergency is said to necessitate, that impinges more than permitted in normal times on individual liberties (detention, surveillance, restrictions on freedom of movement, assembly, or worship). The courts are conceived as ex post checks on whether the political branches of the state have compelling enough interests to justify these extraordinary actions. As part of that inquiry, courts explore how much they should defer to the political branches’ claims of necessity for these emergency measures. In the American context, courts also determine whether the President can act on his own and whether Congress has endorsed the action at issue. But courts during emergencies remain ex post veto institutions over emergency policies the political branches adopt.
In the current pandemic, however, we are witnessing the federal courts assuming the mantle of a different role, particularly around issues of voting and elections. The difference is subtle, but profound. In the domain of elections, federal courts are themselves becoming affirmative institutions of the state taking the initiative to create new policies that the pandemic crisis is thought to warrant. The courts are not engaging in an ex post checking function against new emergency measures the government has taken; instead, the courts are responding to the failure of governments to adopt new policies tailored to the extreme new circumstances of the pandemic. Courts in this arena are not negatively checking and vetoing government action, they are affirmatively requiring government to adopt certain policies. Courts are not issuing injunctions blocking coercive new emergency measures governments have adopted; instead, courts are mandating that governments exercise extraordinary powers that would not be required in normal times. In a fragmented way thus far, primarily across district courts scattered around the country, the federal courts are moving bit by bit toward building a new election code for pandemic-time elections. While we are not accustomed to viewing the Constitution as granting federal courts emergency powers, that is an apt overarching framework for synthesizing the various election-related decisions rapidly emerging — with several new decisions weekly — from the federal courts. This essay describes this framework and situates within it the actions of federal courts thus far.