People are rightly wondering about the legal and constitutional authority to impose strict lockdowns on both the population and the economy, and more broadly wondering whether, like “emergencies” in the past, our current response will lead to a permanent expansion certain kinds of government power (and spending!), and thus yet another ratchet to larger government and a further diminution of individual liberty. Many “temporary” measures and policies seem to have a way of becoming permanent after the emergency is over.
I decided to check out what F.A. Hayek might have had to say on this question, and sure enough, in his mid-1970s opus Law, Legislation and Liberty, Vol. 3, ch. 17, he offers this extended reflection:
The basic principle of a free society, that the coercive powers of government are restricted to the enforcement of universal rules of just conduct, and cannot be used for the achievement of particular purposes, though essential to the normal working of such a society, may yet have to be temporarily suspended when the long-run preservation of that order is itself threatened. Though normally the individuals need be concerned only with their own concrete aims, and in pursuing them will best serve the common welfare, there may temporarily arise circumstances when the preservation of the over-all order becomes the overruling common purpose, and when in consequence the spontaneous order, on a local or national scale, must for a time be converted into an organization. When an external enemy threatens, when rebellion or lawless violence has broken out, or a natural catastrophe requires quick action by whatever means can be secured, powers of compulsory organization, which normally nobody possesses, must be granted to somebody. Like an animal in flight from mortal danger society may in such situations have to suspend temporarily even vital functions on which in the long run its existence depends if it is to escape destruction.
The conditions under which such emergency powers may be granted without creating the danger that they will be retained when the absolute necessity has passed are among the most difficult and important points a constitution must decide on. ‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded – and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist. Indeed if all needs felt by important groups that can be satisfied only by the exercise of dictatorial powers constitute an emergency, every situation is an emergency situation. It has been contended with some plausibility that whoever has the power to proclaim an emergency and on this ground to suspend any part of the constitution is the true sovereign. This would seem to be true enough if any person or body were able to arrogate to itself such emergency powers by declaring a state of emergency.
One conclusion (among many that come to mind): Recall how several Democratic presidential candidates like Washington Gov. Jay Inslee said they would, on Day One of their presidency declare climate change to be a “national emergency.” I’m guessing the current economic privation we are experiencing to suppress COVID-19 is a feature rather than a bug for the climatistas.
Suggestion: Repeal the National Emergencies Act.
See also Andy McCarthy on this vital question.