Covid and the constitution: unlawful states of emergency during the pandemic

Abstract The Covid-19 pandemic in 2020 and 2021 gave rise to an unprecedented number of emergency declarations across the world. Recent research shows that the transfer of substantial discretionary power to the executive branch in an emergency often gives rise to unlawful and unconstitutional political behaviour. In this paper, we explore if the large number of emergencies during the pandemic were special. We document that they were, in the sense that unlawful emergencies were substantially more likely to occur among democracies. We also show that apart from economic variables, better rule of law and more permissive constitutionalised emergency provisions contributed to a higher risk of unlawful behaviour.