Epidemics have functioned as “forks in the road” of European History, prompting leaps forward in the status quo and power relations. In the language of social scientists, epidemics have worked as “critical junctures”, representing a moment of change in the path-dependent evolution of political systems and institutions, and disrupting social, political, and economic relations. COVID-19 can be portrayed as a crisis of modernity itself in the sense that modernity was built on freedom of movement, the essential condition of liberal markets economics. This contribution analyses the legal reaction to the pandemic from a constitutional state of emergency perspective. Taking the Portuguese situation as a case study it considers constitutional safeguards on the state of emergency and whether this is preferable to the use of ordinary legislation in managing a pandemic crisis.
The Covid-19 and the different states of alarm declared in Spain have entailed multiple restrictions of fundamental rights, in an unprecedented scale. Precisely, the unprecedented length of the state of alarm and the threat to public health has collided in Spain with the need to hold free elections and, therefore, the right to political participation. This paper explores the legal basis for restrictions on political rights under the state of alarm, the decisions taken by Spanish public authorities limiting them during the pandemic and the judicial response to them. Surprisingly, the usual deferential judicial attitude in time of emergency vanished and the Spanish judiciary has been active in protecting political rights and deploying a mixture of judicial review scrutiny -both formal and substantial- which has stressed the protection of political rights even in time of emergency.
This paper explores how the management of the pandemic crisis has affected the internal working of the executives in selected jurisdictions. In doing so, I will first focus on the internal structure of the cabinet and the balance between prime ministerial leadership, collegiality, and each minister's competence. In fact, the peculiar challenges raised by the Covid-19 pandemic have led to significant developments, including the emergence of “Covid cabinets” (e.g. in Germany), an increased role for already-existing interministerial committees (e.g. in France and Belgium), or increased responsibilities for the head of government (e.g. in Italy). A secondary topic is the interaction between expert committees and the proper balance during the acute stage(s) of the pandemic crisis. My aim is to highlight the significant adaptability of the executive and the existence of contradictory trends, pointing both at stronger individual leaderships and experimentation with new forms of collegiality.
Across the Atlantic, USA has been the hardest-hit country by the pandemic worldwide, in terms of cases and fatalities. Ever since the outbreak of the Covid19 pandemic in the US in March 2020, all US states have imposed strict measures to combat the pandemic. Such state measures have at times seriously restricted human rights, such as freedom of religion, freedom of movement, administration of elections and even prison housing. This paper attempts to look at how the US Supreme Court has responded to the pandemic and such measures over the past year through a selection of its cases, particularly whether it has favored several rights over others, as well as whether other factors – ie the change in the composition of the court or the 2020 Presidential Elections have influenced its judicial decisions. Overall, has the pandemic had an impact on judicial scrutiny and if so, how?