Evaluating Institutional Strength and State Executive Behavior during Crisis

• In Event: The State Executive Branch In and Out of Crisis

Abstract

At the core of the debate on the appropriate use of emergency powers is a tradeoff between civil liberties and public safety. Emergency powers are meant to allow executives the ability to act swiftly in times of crisis; however, emergency powers can be abused, and power gained may not be given back willingly. Historically, the U.S. narrowly confined the use of emergency powers by the federal government to suppressing local rebellions or for national defense. Over time, presidents and governors have used emergency powers more frequently and across a broader array of crises, including public health, environmental, and economic. At the same time, both the strength of governing institutions and the types of emergency authority vary across states, creating different levels of checks on governor decision-making. This raises the question: To what extent do the constitutional and statutory limits on emergency power within states – alongside other governing institutions – afford governors latitude to address a crisis, including the ability to target the burdens and benefits of policy as they choose? We argue that regardless of the structural and procedural checks states have on emergency powers, as governing institutions strengthen, legislative and judicial challenges to gubernatorial emergency powers decrease. Further, we posit that the need for inter-branch agreement for a state of emergency to persist reduces its duration, particularly when partisan conflict or electoral concerns are present.

Emergency powers during COVID-19 offer us an opportunity to examine how different institutional and political environments shape executive power. Our preliminary analysis uses a latent measure of institutional strength to test our hypotheses. Our early findings suggest that states with stronger institutions experienced longer states of emergency, controlling for COVID-19 case rates. Estimates also suggest that elements of oversight and competition between the executive, judicial, and legislative branches, as well as partisanship and electoral concerns, may predict time-to-expiration.

Our research allows us to better understand recent developments in inter-branch relations and governing in times of crisis. The scholarly debate on separation of powers and executive policymaking has lately focused on potentially undemocratic but expedient executive orders and agency regulation. This project contributes two important insights to the literature on executive power and separation of powers in a crisis: (1) variation in executive behavior is explained by both the presence of an emergency and state institutional composition, and (2) partisan posturing in the legislature and judiciary shape executive policymaking.

Authors

• James Reid Hendrickson, University of Southern California

• Pamela Clouser McCann, University of Southern California

• Abby K. Wood, USC