Mon. Jul 26th, 2021

Explaining how the young state of Massachusetts differed from European governments, John Adams wrote that it was “a government of laws and not of men.” This is a key principle of the American system of governance, from top to bottom. But in the wake of the COVID-19 pandemic, support for the rule of law appears to have waned.

You’ve probably heard this concern long before the pandemic. Critics from both the left and the right cheaply accuse their political opponents of violating the rule of law. It’s an easy way to criticize a decision with which one disagrees. But the rule of law is, nevertheless, a core component of a functioning representative democracy, a fair justice system and civil rights.

Being a nation of laws means that the power of public officials — from police chiefs to governors to bureaucrats to Supreme Court justices — is limited. Government officials cannot simply govern however they’d like. They must work within the system of laws put in place by those who preceded them.

The COVID-19 pandemic demonstrated how willing some government officials are to push against these boundaries.

Some deviation from the rule of law is allowed. Emergency-power laws give public officials the ability to temporarily sidestep some restraints on their power, such as checks and balances, open debate, transparency requirements and judicial review. But in response to COVID-19, elected officials, especially governors, took these powers to new heights by issuing broad, long-lasting orders that affected nearly every aspect of our lives. This presents a new challenge to the concept of the rule of law. 

Michigan’s pandemic experience provides a good example, and similar issues played out in other states. When officials first identified SARS-CoV-2 in the Great Lake State, Gov. Gretchen WhitmerGretchen WhitmerThe Hill’s Morning Report – Presented by Goldman Sachs – Democrats lean into midterm strategy as Senate returns to work What does driving have to do with debt collection? Whitmer says she’s spoken with Biden about infrastructure following flooding MORE invoked a law that seemingly gave her complete control for as long as she wanted. No one knew if this was legal — the law had not been touched in 50 years and was never applied so broadly before. Whitmer then unilaterally issued hundreds of executive orders that affected every resident and were enforced with criminal penalties. Governors in other states used similar approaches to combat COVID-19. 

If political leaders and bureaucrats can grant themselves the power to avoid the limits inherent by the rule of law, are these governments of law or of men? There’s not a clear answer, but it’s a question that needs to be asked. 

Another challenge to the rule of law presented by COVID-19 was how governments implemented their emergency interventions. The unprecedented orders were impossible to enforce in a thorough or consistent way. Which mandates got enforced and who was liable to criminal penalties was left up to enforcement agencies, such as the police. No matter one’s view of the state of policing in America, police should not have this type of power, because it calls into question equal protection under the law.

One may be tempted to brush aside these concerns, given the real threat that COVID-19 presented. Public officials may try to assure the public that they were “following the science,” so the rule of law could give way. But if the rule of law is to have any real meaning, there can be no exceptions to it. Even in times of crisis, the powers of elected officials and bureaucrats must be limited and subject to a system of checks and balances. History is full of examples of political leaders gaining inappropriate and dangerous levels of power by appealing to an emergency.

Just recently, politicians of both major parties have tried to sidestep the rule of law in questionable ways. In 2019, then-President TrumpDonald TrumpPence refused to leave Capitol during riot: book Officials arrest ‘Roman gladiator’ who stormed Capitol while filming it for his mom Overnight Defense: Milley reportedly warned Trump against Iran strikes | Pulitzer Prize-winning photographer killed in Afghanistan | 70 percent of active-duty military at least partially vaccinated MORE tried to fund his wall by declaring an emergency. Later that year, Michigan’s governor attempted to ban flavored vaping products by declaring a public health emergency. And earlier this month, New York Gov. Andrew CuomoAndrew CuomoThe Hill’s Morning Report – Presented by Goldman Sachs – Schumer sets firm deadline on bipartisan infrastructure plan New York AG’s office to question Cuomo Saturday in sexual harassment investigation Discrepancy between New York’s COVID-19 death count and federal numbers widens: AP analysis MORE invoked emergency powers to take charge of efforts to reduce gun violence in the Big Apple. Do not be surprised if more governors follow these examples.

The COVID-19 pandemic demonstrated that politicians are willing to push the limit on unchecked executive power. At both the state and federal level, policymakers need to better define the conditions under which public officials can evade the rule of law. This grave power should be afforded only temporarily and must be subject to legislative or judicial review, preferably both. America’s style of government demands it. 

Michael Van Beek is director of research at the Mackinac Center for Public Policy in Midland, Mich.