Inaction as a State Response to the Coronavirus Outbreak: Unconstitutionality by Omission

The World Health Organization on March 11 declared the novel coronavirus outbreak a pandemic. While the pandemic was spreading across the globe, governments were under pressure to respond. Still, some countries during the first wave of the pandemic, in their first reaction, did not put in place any emergency regulations. Such reaction, which was a policy option, was an intended omission as lawmakers and policy makers decided not to take action and such emergency omission was a novelty and a paradox in emergency situations. Moreover, I argue that during emergencies governments have a distinct duty to act, and I offer justifications. In this article, I seek to answer that question and to inspire reflection on what constitutional mechanisms we have to compel the executive to take action in an emergency. I will argue that the legal mechanism to provide remedies because of emergency inaction are subject to some inherent limitations, while such issues are left to be resolved via the political process with ordinary politics. I will argue that there are three approaches to compel action and avoid emergency omission. I base the first approach on constitutional design. While in most of the countries the emergency power is concentrated in the hands of the executive, what I call the monopoly of emergency powers, in countries with multilevel governments such as in federal and devolved states, the two-tier executive, at national and local level, allows constitution designers to allocate to both executives emergency powers. The second approach puts courts at the heart of the solution with judicial review. However, courts are less likely to find state authorities liable for non-feasance. On the top of that, the deference that judges show in times of emergency would deter the chances for judges to compel emergency action. Finally, this article will conclude with a third approach. This approach stresses that the evaluation of the emergency omission is left to be resolved via the political process with ordinary politics