Seite - 180 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE180 branches of government have retreated in part during the COVID-19 pandemic whereas members of the executive branch—understood to include public health officials—have assumed greater responsibilities. Even when extraordinary powers are authorized by law, such powers are in some respects a departure from the law, since the law that governs during the normal situation is set aside in small or large ways. Some argue that where the law fails to vest extraordinary pow- ers or does so in imperfect ways, an exception to the legal order may be decided upon so as to enable one to act in the face of an exceptional or emergency situation.11 Is there justification for sure departures—be they large or small or complete—from the law that governs during the normal situation? Any sound justification will draw on two reasons. The first relates to the need to settle patterns of coordination. An emergency situation may require rapid decisions on which direction to issue to members of a community. The quickly changing public health advice in the early days of the COVID-19 pandemic illustrates such need in the face of a fluid situation, with near-daily shifts in direction on the size of permissible gatherings, the merits of border closings, the duration of school closures, and the range of essential services. To such end, a single person or small group of persons will have greater capacity to respond to changing circumstances than would a large deliberative body. The second reason affirms that the person or persons awarded extraordinary powers do so on commission: they are to exercise such powers with a view to ending the emergency situation. Their man- date is fundamentally conservative: it is to return to the normal situ- ation.12 Once the normal situation is re-established, the justification for extraordinary powers is spent and the commission is concluded. In acting on commission, those with extraordinary powers affirm the understanding that all authority, in both normal and emergency situ- ations, is a service and a benefit not to the person or persons who rule, but to the members of the community. Even when justified, the exercise of extraordinary powers may raise challenges for the Rule of Law. 11. See Carl Schmitt, Political  Theology (Cambridge: MIT Press, 1986); Carl Schmitt, Dictatorship.  From  the  Origin  of  the  Modern  Concept  of  Sovereignty  to  the  Proletarian  Class  Struggle  (Cambridge, UK: Polity Press, 2014). 12. See Ferejohn & Pasquino, supra note 10.