Endless states of emergency. Limitations on freedom of movement. Warrantless mass surveillance. These are but a few of the hallmarks of a pattern of governmental abuse in the name of safety witnessed across the core English-speaking common law countries of the U.K., U.S., Canada, and Australia since the Cold War. The question of emergency powers has grown more pronounced as governments in all four countries have responded with unprecedented measures to modern challenges like terrorism and the Covid-19 pandemic.
Emergency powers arise in response to perceived crises as states of exception, justifying limitations on civil rights. The situations that qualify as states of exception have steadily grown over time from traditional categories such as rebellion and invasion[1] to encompass natural disasters, civil unrest, pandemics, counter-terrorism, and even climate change. Additionally, the precise meaning of an “emergency” is fuzzy in law and is hardly a fixed concept in public discourse.
Often viewed as a problem of executive power, emergency powers are actually implemented by both executives and legislatures, in both the U.S. system of separation of powers and the parliamentary systems of the other major English-speaking countries. Both systems eagerly adopt emergency powers. However, the U.S. rarely describes such measures as “emergency” powers, compared with more explicit identification of these powers in statutes like the Canadian Emergencies Act.
Each of the four countries decentralizes some amount of emergency powers to sub-national governments—U.K. countries, states, and provinces—that may possess powers to impose quarantines and restrict travel. Among the three parliamentary countries in this study, clearer acknowledgement of emergency powers may be tied to notions of parliamentary supremacy, wherein members of parliament may see themselves as able to “turn off” emergency powers at will. By contrast, U.S. reticence to acknowledge the existence and use of statutory special powers may be tied to mutual wariness between Congress and the Executive, together with concern about potent judicial review that can halt some emergency measures—like the Biden administration’s federal mask mandate.[2]
Part I of this paper will examine the field of comparative constitutional law and look at the constitutional and statutory underpinnings of emergency powers in each of these countries. Part II, in turn, will analyze constitutional and statutory responses that could apply to all four countries based on their mutual common law and democratic traditions. Without proper controls, emergency powers pose serious risks of abuse, becoming not a response to a state of exception, but a response to all situations. Therefore, this paper will offer proposed statutory controls on the extent of emergency powers in the future.
I. COMPARATIVE CONSTITUTIONAL LAW IN THE ANGLOPHONE CORE
A. Comparing the Anglophone Core
The U.S., U.K., Canada, and Australia form the “core” of the common law Anglophone countries, dwarfing tiny Ireland and New Zealand. Born of the British Empire, the U.S. departed the earliest with its own unique and enduring Enlightenment experiment in constitutionalism, federalism, and separation of powers.
The U.K. formally lacks a written constitution, but does have a constitutional tradition, and has developed some form of constitutional review in the courts first with the House of Lords, and since 2009 with the U.K. Supreme Court.[3] The U.K. is not formally a federal country, but in fact contains federal elements due to the devolved governments of Scotland, Wales, and Northern Ireland (for now, the majority of the population in England lack an English national government). Canada and Australia remained far flung but significant portions of the British Empire much longer. Both countries developed separate legal institutions, but remained beholden to final review by the Privy Council in London.[4] Canada and Australia both possess constitutions and a federal system, although Canada has a view of rights comparable to that in the U.S.
English common law traces its origins to the Middle Ages and the 1215 Magna Carta (the first of several iterations of the document).[5] Arising out of a war between King John and English barons, it created the beginnings of limited government and guaranteed rights, limiting excessive fines and taxation, guaranteeing the freedom of the church, the independence of the church, and rights for widows, children, and heirs.[6] Despite its Medieval origins, the Magna Carta provides for key elements of modern jurisprudence: due process, trial by jury, evidence in trials, accountability for officials, proportionality, and equal treatment.[7] Centuries later in the aftermath of the English Civil War, the English Bill of Rights of 1689 became an early guarantor of civil rights for English citizens. England was an offshore refuge from the absolutism and civil law developments in mainland Europe, with a system of rights, checks and balances, and adaptive judge-made common law that would ultimately spread to its settler colonies in a variety of different forms. With that legal heritage came important ideas about how to respond to emergencies.
Black’s Law Dictionary defines an emergency as a “Situation requiring immediate attention and remedial action. Involves injury, loss of life, damage to the property, or catastrophic interference with the normal activities. A sudden, unexpected, or impending situation.”[8] Emergency powers emerged in 20th century phraseology, reflecting a broader conception of emergencies beyond wars and rebellions. Today, emergency powers that grant enhanced privileges and powers to an executive, military, or executive agencies are invoked for war, civil unrest, insurgencies, natural disasters, and pandemics. Despite the growing prominence of so-called emergency powers, there is little agreement in legal definitions and public discourse about the precise definition of an emergency.
Although the specific phrase “emergency powers” is comparatively modern, the common law world has long recognized vaguely defined emergency powers associated with martial law. English legal thinkers like Matthew Hale and William Blackstone debated the appropriate role of martial law, and Hale even contended that the king could not declare martial law without the authority of an annual Mutiny Act from Parliament.[9] These 17th and 18th century debates signal the deep roots of emergency power debates. Yet executives in all major common law country have frequently taken unilateral action in the name of emergencies, or based on expansive grants of right by legislators.
In the 21st century, what constitutes an emergency is more broadly defined than ever before. Secessionism or a threat of foreign invasion is no longer the standard. Today, the definition might encompass responding to infectious illness, suppressing irritated truckers—or reordering the economy in response to an ostensible “climate emergency.”[10] Emergency power claims pose a potent threat to democracy and sacrosanct civil liberties, and therefore carefully crafted legislation is needed across the Anglophone core to prevent excesses.
A. Emergency powers in the United States of America
Unlike many national constitutions, the U.S. Constitution does not contain formal emergency powers.[11] The Vesting Clause provides for undefined “executive powers,” which are often the basis of emergency powers in-practice, together with Congress’s power to mobilize state militias, found within the Militia Clause.[12] Many other constitutions permit the suspension of rights during times of emergency, but the U.S. permits only the suspension of writs of habeas corpus, and then only with Congressional approval.[13] Habeas corpus only pertains to detention and detained individuals still retain their rights after the extraordinary circumstance necessitating suspension of the writ. Article I discusses writs of habeas corpus and identifies two circumstances that qualify for suspension of habeas corpus: rebellion and invasion.[14]
One of the most recurrent uses of emergency powers in American history is martial law, declared either by senior military officers or state governors.[15] As a U.S. Army general, Andrew Jackson placed New Orleans under martial law in 1812, Lincoln imposed martial law throughout many parts of the country during the Civil War, and state governors frequently imposed martial law to combat labor strikes.[16]
The Supreme Court first heard a martial law case in 1848.[17] Rhode Island had persisted with its 1600s charter rather than a state constitution; a rebellion broke out led by Thomas Dorr, favoring a state constitution, and the state’s charter government imposed martial law.[18] The Court did not reach the merits on the use of martial law, instead holding that the question of which state government is legitimate under a state constitution was a non-justiciable political question.[19] Ex parte Milligan[20] found restrictions on the president suspending habeas corpus. The Supreme Court held that civilians could not be tried by military tribunals if civilian courts were still functioning.[21] Congress ultimately granted President Lincoln the right to suspend habeas corpus in the South and border regions during the final two years of the Civil War.[22]
After Milligan, Moyer v. Peabody was the next major martial law case to reach the Court. Colorado Governor James Peabody declared martial law throughout several counties in 1903 and 1904 to counter a miners’ strike.[23] State forces detained Charles Moyer, president of the Western Miners’ Federation, and the Colorado Supreme Court refused his habeas petition.[24] The Supreme Court concluded that the governor could declare martial law so long as he had a good faith basis for doing so.[25] Although governors possessed this power, there were limits. Sterling v. Constantin[26] in 1932 held that the Texas governor’s use of martial law in some counties to enforce an oil production limitation from the Texas Railroad Commission was an unallowable interference with property rights. The question of presidential martial law powers reached the Supreme Court in context of Congressional delegation to territorial governors to declare martial law.[27] In its Duncan v. Kahanamoku decision, the Court held that the Hawaii territorial governor’s decision to replace civilian courts with military commissions overextended power delegated by Congress.[28]
Martial law cases betray the murky and uncertain origins of emergency powers in American jurisprudence from prior to the Constitution. In the U.S., emergency powers originate in statute, but are usually an exercise of federal or state executive power.[29] U.S. presidents have used executive powers to respond to national emergencies on many occasions, although this executive power often receives some degree of Congressional approval.
George Washington quashed the Whiskey Rebellion with Congressional approval[30] and Woodrow Wilson undertook massive censorship and crackdowns on communists and anarchists, with the Espionage Act of 1917 and the Sedition Act of 1918.[31] But restriction on rights was perhaps most characteristic of Abraham Lincoln, Franklin Delano Roosevelt, Harry Truman, George W. Bush, and to some extent Donald J. Trump.[32]
Faced with secession by Southern slave states in 1861, Abraham Lincoln undertook then unprecedented executive actions. Lincoln suspended habeas corpus before the approval of Congress, ordered the military to detain civilians, and ignored a Supreme Court order to release a detained Marylander in Ex parte Merryman.[33] Subsequently, Lincoln issued the Emancipation Proclamation, unilaterally emancipating slaves in the Confederate states.[34] Lincoln’s actions preserved the union, resulted in long overdue freedom for enslaved African-Americans, and paved the way for America’s great power status, albeit at tremendous cost in human life in a protracted war.
Remarkably, Congress resisted many post-Civil War efforts to expand executive powers, although Congress did extend substantial powers to the president under Congressional supervision. For instance, the 1871 Ku Klux Klan Act allowed the president to suppress civil disturbances with military force and suspend habeas corpus.[35]
During World War I, President Woodrow Wilson demanded—and received—expansive powers from Congress, launching prosecutions of anti-war individuals under the Espionage Act of 1917, and monitoring aliens under the Alien Enemy Act.[36] Wilson reordered the economy for war with price controls, rationing, and requisitions. Even after the war’s abrupt end in November, 1918, Wilson eagerly clung to his emergency powers, directing Attorney General Palmer to round up thousands of aliens believed to be communist or anarchist sympathizers in the 1920 Palmer Raids.[37] Congress’s grant of emergency powers during World War I did not contain a sunset provision. Congress ultimately voted 343-3 in 1920 to repeal emergency powers, but Wilson resisted with a pocket veto. Emergency powers were only revoked after Wilson left office on March 21, 1921.[38]
Franklin Delano Roosevelt undertook a vigorous use of executive power in the 1940s, unmatched up until that time by any other president except Lincoln and Wilson. FDR set the tenor for what the American presidency has become: a figure akin to a prime minister with sweeping executive powers who sets legislative priorities and coordinates wide-ranging aspects of policy through administrative agencies.[39] During the Great Depression in the 1930s, FDR’s New Deal programs were backed with Congressional legislation, but initially faced pushback from the Supreme Court. After threats to “pack the Court” to achieve objectives, the Supreme Court affirmed an expansive view of the Commerce Clause that supported Congress and the president’s ability to regulate almost any aspect of American life.[40]
Congress delegated authority to the Army to create military zones with heightened security during World War II and FDR followed suit with executive orders restricting, and ultimately interning Japanese-Americans.[41] The Court approved an expansive view of executive power with Korematsu case, permitting FDR to proceed with internment.[42]
The interstate commerce revolution of cooperative federalism brought with it a truly national market, but also eroded regional resilience. Today, entire regions of the country, like New England, depend on interstate imports for over 90 percent of their food.[43] The legal changes brought about in the era of cooperative federalism and the rapid expansion of federal power in the years after World War II transformed the U.S. from a land of farming and market gardening, loosely stitched together with railroads into an intermeshed nation bound together by interstate highways, air travel, and national TV markets.[44] As a result, state power waned relative to the federal government, federal rather than local responses were given priority, and populations became more distributed across large areas. Burgeoning fields like healthcare, although somewhat decentralized through dual-federalism became areas of federal purview, and an added excuse for federal involvement in emergencies. The federal government usurped private insurance in areas as diverse as crop insurance and flood insurance, with federal outlays during emergencies becoming a vital source of local funds.[45]
The advent of cooperative federalism meant the expansion of state governments, even as their power waned relative to the federal government. State emergency powers fit this pattern. In the decades after World War II, state legislatures adopted new laws granting sweeping emergency powers and martial law capabilities to state governors, in response to the perceived threats of nuclear war with the Soviet Union. Nationally, emergency powers—and broad federal powers generally—developed during the Great Depression and World War II became a standard part of governance.[46]
Apart from his attempted nationalization of the steel industry in Youngstown, President Truman chose not to exercise the full extent of the powers granted to him by Congress. In 1950, Congress passed the Internal Security Act allowing the president to declare a national emergency, while the Emergency Detention Act allowed the Attorney General to arrest anyone suspected of espionage or sabotage.[47] The FBI under J. Edgar Hoover had compiled a list of suspects, but Truman resisted the opportunity to carry out mass detention of those on the list.[48] Nevertheless, Congress launched prominent investigations of real and imagined communist activity in the U.S. through the auspices of the House Un-American Activities Committee.[49] The FBI by the late 1950s dedicated most its personnel to combating communism.[50] Truman decided to take action with his Article II powers in a different arena, and was reportedly shocked when the Supreme Court overruled him. At the end of 1951, collective bargaining negotiations between steel mills and labor unions began to breakdown. On April 9, 1952, facing a steel workers’ strike, Truman issued Executive Order No. 10340, nationalizing the steel plants.[51] The Supreme Court rejected the nationalization effort, and Justice Jackson laid out a famous three-part scheme for weighing the exercise of presidential power in his dissent.[52]
Against the backdrop of the Supreme Court decision in Youngstown, the federal government implemented new civil defense programs that in many ways embraced state and local emergency power provisions. FDR created the Office of Civil Defense (OCD) in 1941.[53] Truman abolished OCD, but followed the recommendations of the Blue Book report and approved the creation of the Federal Civil Defense Administration (FCDA) in 1950.[54] FCDA avoided federalization of emergency preparation by emphasizing coordination between federal and state government, as well as federal financial support for fallout shelters.[55]
After growth throughout the 1950s and 1960s, federal and state civil defense initiatives withered by the late 1970s. Ironically, major natural disasters in the mid-1960s, like the 1964 Alaska earthquake, or Hurricane Hilda and Betsy, prompted a deprioritization of civil defense in favor of federal disaster assistance funds sponsored by Senator Birch Bayh.[56]
Many of the trends toward heightened internal surveillance and federal and state emergency powers continued throughout the 1960s. The 1970s marked a short-lived turning point in American emergency powers law. In the aftermath of the Watergate scandal, executive branch activities came under heightened public scrutiny. The Senate’s Church Committee conducted widely publicized hearings about the covert activities of the FBI and CIA, revealing widespread mass surveillance and 25,000 placed on lists to be rounded up and arrested in a national emergency.[57] Congress passed the Privacy Act of 1974, and in 1978 adopted the Foreign Intelligence Surveillance Act to require warrants for foreign intelligence gathering in the U.S.[58]
A series of revolutions rocked the Soviet Union and its Marxist-Leninist allies in Eastern Europe, leading to a collapse of most communist governments outside of Asia between 1989 and 1991. The U.S. slashed defense spending in the 1990s, attempting to capitalize on the post-Cold War “peace dividend.”[59] Even with the Soviet Union out of the picture, new threats loomed. Since the 1960s, violent extremist groups increasingly capitalized on “propaganda of the deed.” Rogue nations and drug cartels appeared as new opponents. The nation weathered the 1992 Los Angeles race riots, Category 5 Hurricane Andrew, and the 1995 Oklahoma City bombing.[60] President Clinton elevated the FEMA director to the Cabinet. In 1994, Congress repealed the Federal Civil Defense Act, transferring civil defense authority to Title VI of the Stafford Act, completing the transformation to an “all hazards” approach to disasters.[61]
Fears about pandemics and bioterrorism became increasingly pronounced in the late 20th century, with a growing awareness about the extent of air travel and globalization, as well as revelations about Soviet bioweapons programs.[62] Science writer and novelist Richard Preston reached the New York Times bestseller list in 1994 with the publication of the Hot Zone, an account of the discovery of the viral hemorrhagic fever Ebola in the late 1970s, and the U.S. Army’s clean up of a small Ebola outbreak in monkeys at a facility in Reston, Virginia, in 1989.[63] Subsequently, in 1997, Preston ventured into fiction with his novel The Cobra Event, depicting a grisly bioterror attack on the U.S. President Clinton read the novel, which prompted the creation of the National Strategic Stockpile of medical equipment and vaccines.[64]
The September 11, 2001 terrorist attacks transformed executive and legislative attitudes to national threats, resulting in the creation of the Cabinet-level Department of Homeland Security two years later.[65] In the aftermath of the 9/11 attacks, George W. Bush received expansive powers under Congress’s Authorization for the Use of Military Force and the PATRIOT Act.[66] Civil libertarians quickly raised concerns about new law. PATRIOT Act ate away at Fourth Amendment protections, allowing “sneak and peak” searches in which the FBI could pull online purchase history, banking data, or library check out records without a search warrant.[67] Leaks by defense contractor, Edward Snowden, in 2013 revealed that the NSA had collected millions of phone records, relying in part on Section 215 of the PATRIOT Act.[68]
After 9/11 the U.S. steeled itself for the possibility of infectious illness. SARS in 2003, the specter of avian flu, the swine flu pandemic in 2009, the West African Ebola epidemic in 2014, and Zika virus in 2016 all prompted a degree of federal and state emergency responses. Notably, in 2014, President Obama imposed screening requirements for arriving air travelers from West African countries affected by Ebola.[69] Less than six years later, the Covid-19 pandemic prompted an unprecedented federal and state emergency response, that will be considered across the study area in Section E.
B. Emergency powers in the United Kingdom
Compared with the U.S., Canada, and Australia, the U.K. has the longest legal history of any of the core Anglophone common law countries, and is the progenitor of the other three legal traditions. But the U.K. is an outlier among most countries worldwide because it does not have a written, codified constitution.[70] In other words, the U.K. has absolute parliamentary supremacy, and the whims of members of parliament usually win out, although the House of Lords does have the power to act as a check on these decisions.[71] The U.K. does have a constitutional tradition stretching back to the Magna Carta and the English Bill of Rights of 1689, but these instruments are easily overridden by Parliament.[72] The Parliament Act of 1911 eliminated the requirement that the House of Lords’ consent to any act of the House of Commons, reducing the degree to which Parliament is bicameral.[73]
In spite of its lack of defined rights, U.K. law has a long tradition of recognizing rights in practice, and practicing a form of rule of law, permitting judicial interpretation, and demanding equality before the law.[74] The U.S. legal system has developed many unwritten traditions of its own over the course of nearly two and a half centuries, but tradition and convention are defining aspects of the U.K. legal system, such as the presence of government ministers in Parliament or the Queen’s recognized, but never exercised power to refuse assent to a bill passed by Parliament.[75]
Modern emergency powers in the U.K. took shape with the Emergency Powers Act of 1920 and the Civil Defence Act of 1948 that largely delegated emergency responses to the local level.[76] Except for the U.K.’s forceful military response to the I.R.A. insurgency in Northern Ireland,[77] between the 1970s and 1990s, Parliament left emergency response largely in local hands through the 1990s.[78] Parliament promulgated the Civil Contingencies Act 2004, the current framework for emergency powers, based on a trucker protest in 2000 that resulted in nationwide fuel shortages, and the 9/11 attacks, which is currently the defining standard for emergencies.[79] With little fanfare, Parliament in 2005 passed the Prevention of Terrorism Act, essentially eliminating legal defense and habeas corpus for terrorism suspects, and eliminating separation of powers by placing judicial powers in the hands of Secretary of State for Home Affairs.[80] Absent a true constitutional baseline, these startling laws took effect with major criticism only from U.K. socialists and international NGOs like Human Rights Watch.[81]
C. Emergency powers in Canada
Canada remained a part of the British Empire after the time of the American Revolution and was subject to successive British Mutiny Acts until the time of Confederation in 1867.[82] Faced with the French-Canadian led Patriote Revolt in 1837, the Privy Council concluded that the governor of Lower Canada (today the province of Quebec), was privileged to put down the rebellion with the militia.[83] The newly constituted Dominion of Canada gained the ability to raise its own military and pass its own laws in 1867, but those laws remained reviewable by the Privy Council. The Dominion Parliament passed the Militia Act of 1868, creating a framework for executive declarations of martial law.[84] As in the U.S. maintenance of law and order was a matter for provincial governments, and therefore mayors, magistrates, and governors were the ones who typically declared martial law throughout the late 19th century.[85]
Canada conducted a federal response to insurrection during the North-West Rebellion of 1885, but this response was small compared with the American Civil War, and resulted in little debate about federal emergency powers.[86] Indeed, in contrast to the U.S. where frontier law enforcement was conducted by federal troops and U.S. Marshals, Canada developed a gendarmerie in the form of the North-West Mounted Police (today, the Royal Canadian Mounted Police that conducts both uniformed and undercover law enforcement in most provinces).[87]
Mirroring the growth of executive power in the U.S. during World War I, Canada passed the War Measures Act of 1914, which permitted parliament to delegate sweeping powers to the executive—in the Canadian case, the king or the Governor-in-Council.[88] With this legislation, the Governor-in-Council gained the ability to control ports and commerce, censor media, arrest or exclude individuals, and appropriate property with payment of compensation. The War Measures Act was quickly invoked and withstood a challenge in the Supreme Court of Canada in the In re Gray case, challenging a denial of habeas corpus.[89]
The Canadian federal government labeled 80,000 people as enemy aliens and interned 8,600 of these people, keeping many in detention for two years after the end of the war.[90] Many of the detained were from enemy countries such as Germany and Austro-Hungary.[91] Ending emergency powers proved even more complicated in Canada than with the fight between Congress and President Wilson in the U.S. A 1923 decision by the Privy Council held that the federal government enjoyed tremendous deference to determine the scope of an emergency.[92]
The Great Depression struck Canada even harder than the U.S. Dust Bowl conditions impoverished the Canadian Prairie provinces, leaving many destitute and on the verge of starvation.[93] Prime Minister Richard Bennett shifted the balance of power between the federal government and provinces, but had some of these powers struck by the Supreme Court of Canada.[94]
With the start of World War II, the Canadian federal government invoked the War Measures Act in 1939, and issued 6,414 special orders throughout the course of the war.[95] Italian and German-Canadians were required to register as enemy aliens, and 22,000 Japanese-Canadians were interned after Pearl Harbor.[96] Ironically, even after the war’s end, Canada proceeded with mass deportation of Japanese nationals resident in the country, which was affirmed by the Supreme Court because of Parliament’s extension of emergency powers in the Emergency Transitional Powers Act.[97] Emergency powers faded as Canada entered its post-war reality, but the government continued to invoke the War Measures Act periodically, such as authorizing the secret arrest of a dozen alleged Soviet spies in 1946.[98]
Much like the U.K., with the Troubles in Northern Ireland, Canada faced a domestic emergency due to secessionism with the violence perpetrated by the Front de Liberation du Quebec.[99] Canadian Prime Minister Pierre Elliott Trudeau invoked the War Measures Act[100] in response to the 1970 October Crisis, deploying troops to Montreal and arresting over 400 individuals.
In 1981, the McDonald Commission of Inquiry brought to light alarming revelations about the quiet role that emergency powers played in permitting mass surveillance in Canada. Federal law enforcement and intelligence agencies had amassed files on 800,000 people in Canada, far surpassing even the surveillance of groups and individuals in the U.S. revealed by the Church Commission.[101] As a result of the revelations, Parliament shut down the Counter-Subversion Branch of the Canadian Security and Intelligence Service. Soon thereafter, in 1982, Canada adopted the Charter of Rights and Freedoms.[102]
The War Measures Act was repealed and replaced in 1988 with the Emergencies Act. Compared with the amorphous powers in the War Measures Act, the Emergencies Act is comparatively restrained.[103] The Governor-in-Council is permitted to declare a state of emergency, but Parliament may “supervise” and terminate the emergency. Additionally, the federal government must consult with provincial leaders. Perhaps most significantly, the Emergencies Act refers to the Charter of Rights and Freedoms which does not contain any provisions that limit rights in an emergency.[104]
Canada never declared a state of emergency after the 9/11 attacks in the U.S., but Parliament did adopt the Anti-Terrorism Act, Bill C-36.[105] The law criminalized terrorism with a political, ideological, or religious motive, permitted “preventive arrests,” and allowed police to request a judge to grant an investigative hearing where an individual called in for questioning would be required to answer with no right to avoid self-incrimination.[106] The Anti-Terrorism Act conflicts with the right against self-incrimination in the Charter of Rights and Freedoms, although Canadian case law holds that testimony can be compelled to prevent loss of life, if it is not used specifically to incriminate.[107]
To date, the 1988 Emergencies Act has only been invoked once by Prime Minister Justin Trudeau in 2022 against truck convoy protesters in Ottawa—in response to civil unrest brought on by the Covid-19 pandemic.[108] The dramatic measure involved freezing the bank accounts of protesting truck drivers and their supporters, even though the Canadian Security Intelligence Service did not assess the protests as a national security risk.[109]
D. Emergency powers in Australia
Australia has a unique genesis as a penal colony for the unwanted dregs of British society deported to the Southern Hemisphere after the 1780s.[110] British colonies sprang up around the coastline of the continent more or less simultaneously. In a tenuous decision to federalize, Australia ratified its federal constitution in 1900.[111] Section 51(vi) states: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.”[112]
An early test of the expansive Defence Power came in Farey v. Burnett.[113] Farey sold bread above the maximum price permitted by the War Precautions Regulations 1916 and appealed, arguing that price controls on bread were not part of the Defence Power. A majority of the High Court dismissed his appeal.[114] In a striking reference to American constitutional law, two of the justices quoted McCulloch v. Maryland for the proposition that the High Court needed to take a deferential approach to reviewing federal legislation.[115]
In the post-World War II period, Australia embraced large-scale immigration and multiculturalism in the early 1970s.[116] Unlike Canada, Australia adopted a much more aggressive national security posture, with significant international security involvements, joining the U.S. for the Vietnam War and the U.S. and U.K. for the Iraq War.[117] Australia’s hawkishness compared with Canada played out in other ways, with the adoption of its strict point based immigration system in 1979.[118] These policies suggest a heightened concern about national security and a willingness to act aggressively to preempt potential risks, ultimately born out during Australia’s extremely aggressive response to the Covid-19 pandemic.
Beginning in 1948, Australian courts occasionally review statutes and regulations for unreasonability.[119] But until as late as the 1980s, Australian courts viewed government decisions related to national security as non-justiciable and non-reviewable.[120] The High Court indicated with a plurality decision in 2013 that courts may review federal decisions for unreasonability if there is a more reasonable construction of a statute.[121]
Faced with the Covid-19 pandemic in 2020, Australia adopted some of the strictest restrictions on civil liberties of any developed country. On March 18, 2020, Australian Governor-General David Hurley invoked the Biosecurity Act of 2015, declaring a pandemic and enacting sweeping emergency powers under section 476 of the Act.[122] To a greater degree than the other Anglophone countries in this study (other than Canada), Australia’s states declared states of emergency and closed state borders with one another, as part of the federalized response to the virus.[123]
E. A Simultaneous Crisis: Covid-19 and Emergency Powers
In November, 2019, mysterious cases of pneumonia began to appear in Wuhan, Hubei, China.[124] China kept the emergence of the SARS-Cov-2 virus quiet as it stockpiled medical supplies.[125] But when cases rapidly multiplied in the lead up to Chinese New Year at the end of January, 2020, there was no keeping the new illness quiet. International news agencies reported on overwhelmed hospitals, people collapsing in the street, and—in a then unprecedented move—the total quarantine of a multi-million person city and the surrounding province.[126]
National, state, and provincial governments in the Anglophone core invoked myriad emergency powers, predicating many sweeping powers on biosecurity statutes and public health statutes for the first time, together with “state of emergency” legislation.
In spite of travel restrictions with China imposed by President Trump, cases of Covid-19 soon began to appear elsewhere. By the end of February, 2020, community spread of Covid-19 was occurring in small numbers throughout the U.S. The Italian government quarantined entire towns in the Lombardy region, and then on March 9, as cases surged in the U.S. and throughout Europe, South America, Africa, and Asia, announced a total lockdown of the country.[127] Alarmed by events in China and Italy, countries throughout the world shut their borders and imposed national or regional lockdowns and stay at home orders in an effort to reduce the spread of the virus. In the U.S., governors exercised executive powers, imposing mask mandates, stay at home orders, curfews, and in some cases limitations on movements from other states.[128]
In the early days of the Covid-19 pandemic, it was Republican lawmakers who chided the American left for its charges of racism against President Trump, and trumpeted the idea of travel bans to stop the spread of the virus.[129] Indeed, throughout the pandemic, there was no uniting pattern to draconian responses. State capitalist dictatorships like China, multi-ethnic quasi-democracies like Nigeria, civil defense states like South Korea and Israel, countries led by social democrats, and many jurisdictions led by center-right politicians, the likes of Boris Johnson, Scott Morrison, and Mike DeWine all reacted with varying degrees of intensity.[130]
Charles “Cully” Stimson, a Senior Legal Fellow with the Heritage Foundation authored a piece at the end of March, 2020 laying out a constitutional case for strict emergency measures in the U.S. to combat Covid-19.[131] Stimson’s article is an interesting recent legal artifact, reflecting a pro-restrictions American conservative approach to the pandemic. “The COVID-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel,” Stimson observed, calling on states to use their plenary police powers even in the absence of action from Washington. “States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. . . Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.”[132]
Such extreme attitudes disappeared quickly among American conservatives as Covid-19 countermeasures became a partisan wedge issue. The early months of Covid-19 marked an unusual departure from freedom of movement in the U.S. as some states attempted to impose border controls with one another. The Rhode Island National Guard was tasked to stop cars and go door-to-door in coastal communities collecting information about visitors from New York and issuing quarantine reminders.[133] In Texas, Department of Public Safety officers deployed to major airports to require visitors from “hotspots” to quarantine for fourteen days if staying in Texas.[134] Texas went a step further, setting up checkpoints at the Louisiana state line to remind out of state drivers about the state’s fourteen day quarantine requirement, with up to 180 days of imprisonment for violators.[135] Puerto Rico and Hawaii required negative Covid-19 tests to enter until mid-2022.[136]
Canada shut its border with the U.S. by mutual agreement with Washington on March 18, 2020, although remained open in both directions to “essential” traffic such as commercial vehicles and some trans-border commuters. [137] Provincial governments invoked emergency powers and declared states of emergency.[138] The Canadian federal government announced wage subsidies to cover a 30 percent drop in business revenues.[139] By June, some provinces such as Ontario announced a partial reopening, although municipal governments like Toronto retained indoor dining bans.[140]
Canadian provinces imposed what amounted to border closures with one another, requiring outside arrivals to quarantine for 14 days.[141] The Atlantic provinces brokered an informal agreement, dubbed the “Atlantic Bubble,” to allow quarantine free-travel within the region.[142] Canadian provinces lack an equivalent of the National Guard in the U.S. Quebec was particularly hard hit in the early days of the pandemic due to cold weather, air connections to Europe, and an annual winter festival in Quebec City. To alleviate understaffing in Covid-ridden care homes, Prime Minister Trudeau deployed Canadian Armed Forces personnel until mid-September.[143]
During autumn of 2020, as cases rose with the return of cold weather, most Canadian provinces imposed strict mask rules and ordered the closure of “non-essential” businesses.[144] The Atlantic provinces suspended the Atlantic travel bubble. In January, 2021, Quebec imposed a nightly curfew and Ontario issued a stay-at-home order.[145]
Prior to the Covid-19 pandemic, independent evaluations rated Australia as one of the the countries most prepared for a pandemic.[146] In practice, that meant dramatic federal and state limitations on civil rights, seemingly without reference to actual risks. Strict lockdowns went on for months, limiting Australians from leaving their homes.[147] The continuation of lockdowns was linked to vaccination rates, with Prime Minister Morrison vowing to keep lockdowns in place until 70 percent of Australians were vaccinated.[148]
Australian states formally closed their borders with one another, or did so indirectly through the mechanism of a mandatory 14 day quarantine.[149] International and domestic media took a skeptical view of so-called “quarantine camps,” in Northern Territory.[150] Officially for returning international travelers, the camps gained notoriety for perceived coercive detention of Aborigines, and police dragnets for escaped quarantined individuals.[151] Australia arrested hundreds during anti-lockdown protests.[152]
The response to Covid-19 across the Anglophone core evinced a lack of clarity about emergency powers. Governments through both executive and legislative action imposed never before seen limitations on civil rights through a combination of national security and public health laws at both the national and sub-national level. Governments largely maintained these restrictions over popular opposition, except in some U.S. states, where governors abandoned restrictions after a short time. In the past, all four countries have engaged in crackdowns on perceived enemies of the state under the auspices of emergency powers, with protracted detention, but never before had governments in the Anglophone core attempted to detain an entire country in the name of safety.
F. Comparing Emergency Powers Among the Anglophone Core Countries
The divergent traditions derived from English common law approach emergency powers in different ways. The U.K. and Canada are startlingly forthright about emergency powers, defining them clearly in statute.
Throughout U.S. history, the executive—sometimes with the backing of Congress—has taken emergency powers measures like suspending habeas corpus, arresting and surveilling perceived enemies of the state or declaring martial law. These measures are essentially never clearly defined as emergency powers. To a greater degree than in the other Anglophone core countries, these actions are policed by federal courts. Chief Justice Taney and three other justices voted to stop Lincoln’s actions in Ex parte Merryman and no amount of favorability to the New Deal on the part of the justices could rescue Truman’s attempted nationalization of the steel industry. State leaders enjoy more clearly defined statutory emergency powers in the U.S. than the federal government is often willing to propound. In the area of federalism, strong emergency powers are found among U.S. and Australian states, as well as Canadian provinces.
Australia appears as a hybrid between a U.S. and U.K. model: no constitutional safeguards and parliamentary supremacy, while simultaneously less willing to clearly identify emergency powers in legislation.
All four countries in this study have encountered similar events at nearly the same time, reacting in common ways. The U.S. and Canada conducted similar internment and mass surveillance between the 1910s and the 1970s, briefly curtailing these powers during the 1980s. The U.K. proved remarkably reluctant to centralize emergency powers, but carried out some of the most aggressive domestic enforcement of any of the four countries between the 1960s and 1990s, countering paramilitaries in Northern Ireland.
The four countries adopted a similar approach to expanded surveillance and counter-terrorism in the aftermath of 9/11. Similarly, all four took unprecedented steps to limit freedom of movement, and impose restrictions to counter the Covid-19 pandemic. Led by both legislative and executive initiatives, these measures were mostly eased up after mass vaccination in 2021, although many provisions in the U.S. were eliminated as an exercise of state federalism or by order of federal judges.
II. REDEFINING EMERGENCY POWERS
Governments in the Anglophone world and beyond need the ability to respond to emergencies. But few emergency circumstances actually rise to a level that would merit extraordinary emergency powers that involve long-term departures from ordinary laws and civil rights apart from the destruction wrought by a sustained insurgency, the concentrated damage of an intense natural disaster, or the distributed destruction of a nuclear war. Emergency powers legislation since the Cold War has obfuscated more traditional concepts like martial law. Simultaneously, emergency powers legislation grants considerable discretion to executive and government agencies at the expense of legislatures and courts.
The response to the Covid-19 pandemic hints at what could be a new standard for emergency powers. Unless it is impossible for a legislature or courts to meet remotely, then continued emergency powers must include provisions requiring regular renewal by the vote of a legislature, with continual options for courts to review emergency acts. There is a risk that if review is too frequent or too rare, emergency acts could become baked in as a normal state. Therefore, legislations would need to pay close attention to the appropriate time interval, perhaps considering a formula like the 60-day allowance for presidential action in the U.S. War Powers Act.[153]
The draconian lockdowns in Australia, and to a lesser extent Canada and the U.K. during the Covid-19 pandemic are anathema to the common law traditions of liberty and limited government. But within those countries, many restrictions were likely constitutional simply because constitutional traditions and separation of powers are so threadbare. In the U.S. as well, enactments like the PATRIOT Act violate fundamental principles of the Fourth Amendment, whereas the Public Health Act comes into conflict with the Due Process Clause.
In the U.S., states enjoy even broader plenary powers than the provinces of Canada or the states of Australia, but often abused these plenary powers in violation of the Commerce Clause, the Takings Clause of the Fifth Amendment, and the Due Process Clause. Future emergency powers legislation must define a limited length of time in which businesses could be ordered to close, after which closure would become a taking, to give businesses notice of how to prepare for the risk of closure. The Fourth Amendment’s probable cause and warrant requirements strongly affirm the need for individualized review of warrants for surveillance.
Although all four Anglophone core countries profiled in this paper share common cultural and economic attributes, their legal systems diverged from common law roots. The U.K. was the first to adopt a proto-constitutional framework with the Magna Carta and English Bill of Rights, but never fully codified a constitution or affirmed the supremacy of rights. Essentially, there is an internal split within the Anglophone core between the three large parliamentary countries, and the presidential structure in the U.S. A tradition of Dormant Commerce Clause enforcement may have dissuaded states from undertaking the types of dramatic border closures witnessed in Australia and Canada.
Perhaps the most significant difference among these countries is the constitutional difference between the U.S. and the other three countries. The U.S. Bill of Rights, similar provisions in state constitutions, and vigorous constitutional review by courts is an important check on procedural irregularity—although it is not a universal panacea as this study reveals. Canada, due to U.S. influence does have a tradition of rights and review in its Charter of Rights and Freedoms, but this review appears to be less robust. The U.K. and Australia, by contrast, have very weak enumerated rights traditions, leaving the decisions of executives and legislators to win out more often. The results in the U.K. and Australia are particularly bad. A 2005 decision of Parliament to allow indefinite detention of terrorism suspects is a far greater erosion of rights than suspension of habeas corpus. To a far greater degree than any of the other three, Australia reacted in an extreme and authoritarian way to Covid-19, effectively detaining an entire country in the name of public health.
Although the Anglophone core does not share the same outlook on constitutionalism and federalism, the citizenry of all four of its largest members share common interests in limited government, electoral democracy, and civil rights. Therefore, during times of relative calm, each national government should adopt legislation that clearly defines the scope of emergency powers, measured against each country’s national constitutional tradition. Despite the differences, legislation could likely be similar across all four countries, regardless of whether there is a tradition of rights and vigorous constitutional review.
New emergency powers legislation could explicitly promote localized responses to disasters, creating systems of emergency conducts and networks to coordinate local and regional leaders. Emergency powers could clarify the power of each country’s executive to close national borders and suspend immigration or air travel, and mobilize the military. But emergency powers have too often taken shape in an ad hoc fashion that leaves out courts and legislators. A national declaration of emergency must be time-limited and subject to continual review by courts and legislators. For instance, nationwide legislation could limit any national emergency to 60 days, or an even shorter period of time, so long as it does not become too regularized for legislators to renew such powers. Once special powers are claimed, they are seldom relinquished, and fundamental liberties suffer.
The need to better define emergency powers is particularly important because of the new areas where emergency powers are being claimed. Anglophone countries have long imposed quarantines on new arrivals and taken some degree of public health measures, but mass surveillance, mandatory vaccination with poorly tested vaccines, and the exclusion of those reluctant to get vaccinated from society is unprecedented.
Covid-19 provided a valuable test case of emergency powers in action. No doubt, Covid-19 is a dangerous illness to some members of the population, particularly before the widespread availability of vaccines. Hundreds of thousands of people, many but not all with preexisting conditions perished across the Anglophone core due to Covid-19. Policymakers should assess whether pandemic-related emergency powers should respond to contagiousness or lethality.
Viewed in retrospect, all four countries profiled in this paper likely should have responded to Covid-19 differently, avoiding draconian and disruptive lockdowns. The response to Covid-19 revealed serious problems with existing emergency powers rules across both the parliamentary and U.S. presidential system that must be remedied to prevent future abuse.
III. CONCLUSION
The Anglophone common law countries share one of the world’s longest traditions of limited government and electoral democracy. Each of the four countries profiled in this paper have legal systems descended from English common law and influenced by documents like the Magna Carta and the 1689 English Bill of Rights, that yield a degree of common outlook on rights compared with other countries. The largest of these common law countries have each faced crises in recent decades relating to civil unrest, violent secessionism, natural disasters, terrorism, and pandemics. Each of these countries has approached these crises in similar ways, informed by divergent constitutional traditions. However, these responses have invariably strayed from the lodestar of limited government. Statutory reform is needed to bring emergency powers within line with the letter or spirit of each country’s constitutional tradition.
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[9] Kim Lane Scheppele, North American emergencies: The use of emergency powers in Canada and the United States, 4 International Journal of Constitutional Law 213, 220 (2006) (hereinafter North American emergencies) (citing Grant v. Gould, 2 Henry Blackstone’s Reports 69 (1792)). [10] See generally Declare states of “climate emergency”: U.N. Chief to World Leaders, Reuters, (Dec. 12, 2020), https://news.yahoo.com/declare-states-climate-emergency-u-173713413.html. [11] Brandon J. Johnson, Executives in Crisis: An Examination of Formal and Informal Emergency Powers, 42 U. Pa. J. Int'l L. 341, 383 (2020) (hereinafter Executives in Crisis). [12] Executives in Crisis, at 383. [13] Executives in Crisis, at 383. [14] U.S. Const. art. I, sec. 9, cl. 2 (“The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it”). [15] Jason Collins Weida, A Republic of Emergencies: Martial Law in American Jurisprudence, 36 Conn. L. Rev. 1397, 1397 (2004) (hereinafter Republic of Emergencies). [16] Republic of Emergency, at 1397. [17] Republic of Emergencies, at 1402 (citing Luther v. Borden, 48 U.S. 1 (1849)). [18] Id. [19] Luther, 48 U.S. at 39. [20] Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). [21] Id. at 119. [22] 12 Stat. 755 (1863). [23] Moyer v. Peabody, 212 U.S. 78, 82 (1909). [24] Id. [25] Id. at 84. [26] 287 U.S. 378 (1932). Governor Sterling’s use of martial law was highly unusual and violated a 1931 District Court injunction preventing the enforcement of the Railroad Commission’s order. To ensure its enforcement, Governor Sterling relied on Texas statutory language about a “state of insurrection, tumult, riot, and a breach of the peace” to order the National Guard to enforce the order. [27] Republic of Emergencies, at 1417. [28] 327 U.S. 304 (1946). 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[61] Civil Defense and Homeland Security, at 23. [62] See generally Sonia Ben Ouagrham-Gormley, Barriers to bioweapons : the challenges of expertise and organization for weapons development 91 (2014). [63] Richard Preston, The Hot Zone (1994). [64] Thomas Spoehr, 2 Presidents, 2 Books, and the Origin and Intent of the Strategic National Stockpile, Heritage Foundation, (May 5, 2020), https://www.heritage.org/public-health/commentary/2-presidents-2-books-and-the-origin-and-intent-the-strategic-national. [65] Civil Defense and Homeland Security, at 27. [66] Executives in Crisis, at 393-94. [67] Patrick G. Eddington, The PATRIOT Act Has Threatened Freedom for 20 Years, Cato Institute, (Oct. 21, 2021), https://www.cato.org/commentary/patriot-act-has-threatened-freedom-20-years. [68] Id. [69] Dan Roberts, US imposes Ebola travel restrictions on passengers from west Africa, The Guardian, (Oct. 21, 2014), https://www.theguardian.com/us-news/2014/oct/21/us-limited-ebola-travel-restrictions-west-africa. [70] DeLorean L. Forbes, Defining “Emergencies”: What the United States Can Learn From the United Kingdom About National Emergencies and the Rule of Law, 37 Ariz. J. Int'l & Comp. L. 411, 423 (2020) (hereinafter UK National Emergencies). [71] UK National Emergencies, at 423 (at all times the UK could overrule international agreements through parliamentary supremacy). [72] UK National Emergencies, at 423. [73] See generally UK National Emergencies, at 424. [74] UK National Emergencies, at 425. [75] UK National Emergencies, at 425. [76] UK National Emergencies, at 428. [77] Lynn Wartchow, Civil and Human Rights Violations in Northern Ireland: Effects and Shortcomings of the Good Friday Agreement in Guaranteeing Protections, 3 Northwestern Journal of International Human Rights 1, 3-5 (2005), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1012&context=njihr (explaining that the Emergency Provisions Act of 1973, targeted exclusively to Northern Ireland, and the U.K.-wide Prevention of Terrorism Act of 1974 allowed detention without charges or access to counsel. U.K. officials also leaked intelligence files on I.R.A. sympathizers and human rights activists to loyalist militias who engaged in targeted attacks and killings). [78] UK National Emergencies, at 428. [79] UK National Emergencies, at 428. [80] Jean-Claude Paye, The End of Habeas Corpus in Great Britain, Monthly Review (Nov. 1, 2005), https://monthlyreview.org/2005/11/01/the-end-of-habeas-corpus-in-great-britain/. [81] See id; see also Indefinite Detention Without Trial in the UK, Human Rights Watch, (2005), https://www.hrw.org/legacy/backgrounder/eca/uk/1.htm. [82] North American emergencies, at 215. [83] North American emergencies, at 217. [84] North American emergencies, at 216. [85] North American emergencies, at 217. [86] North American emergencies, at 218. [87] North American emergencies, at 218. [88] North American emergencies, at 220. [89] North American emergencies, at 220 (citing In re Gray, 57 S.C.R. 150 (1918)). [90] North American emergencies, at 220. [91] North American emergencies, at 220. [92] American emergencies, at 220 (citing Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co., [1923] 3 D.L.R. 629)). [93] Elenore Wade, Health Injustice in the Laboratories of Democracy, 29 Geo. J. on Poverty L. & Pol'y 177, 196 (2022) (explaining these were conditions that would ultimately give rise to prairie socialist movements and prompt the province of Saskatchewan to develop a single-payer healthcare system that was adopted nationwide in 1962). [94] North American emergencies, at 222. (citing In The Matter Of A Reference As To Whether The Parliament Of Canada Had Legislative Jurisdiction To Enact The Natural Products Marketing Act, 1934, Being Chapter 57 Of The Statutes Of Canada, 1934, And Its Amending Act, The Natural Products Marketing Act Amendment Act, 1935, Being Chapter 64 Of The Statutes Of Canada, 1935, [1936] 3 D.L.R. 622 (1936)). [95] North American emergencies, at 224. [96] North American emergencies, at 224. [97] North American emergencies, at 225. [98] North American emergencies, at 225. [99] Front de libération du Québec (FLQ), The Canadian Encyclopedia, (Oct. 6, 2020), https://www.thecanadianencyclopedia.ca/en/article/front-de-liberation-du-quebec. [100] 5 George V, Chap. 2, RSC 1985 c. W-2. [101] North American emergencies, at 228. [102] Constitution Act, 1982. [103]North American emergencies, at 231. [104] North American emergencies, at 231. [105]North American emergencies, at 231. [106] North American emergencies, at 237. [107] Section 13 – Protection against self-incrimination, Charterpedia: Government of Canada, (Sept. 1, 2021), https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art13.html. [108] Amanda Coletta, Trudeau defends using emergency powers against trucker protests, The Washington Post, (Nov. 25, 2022), https://www.washingtonpost.com/world/2022/11/25/canada-trucker-protest-emergencies-act/. [109] Id. [110] Convicts and colonisers: the early history of Australia, History Extra, (Dec. 26, 2010), https://www.historyextra.com/period/general-history/convicts-and-colonisers-the-early-history-of-australia/. [111] H.P. Lee et al., Emergency powers in Australia (2019) (not internally paginated) (hereinafter Emergency powers in Australia). [112] Emergency powers in Australia, Chapter 2. [113] (1916) 21 CLR 433, 468. [114] Emergency powers in Australia, Chapter 2. [115]Emergency powers in Australia, Chapter 2. [116] End of the White Australia policy, National Museum of Australia, (2022), https://www.nma.gov.au/defining-moments/resources/end-of-white-australia-policy#:~:text=Multicultural%20Australia,-While%20the%20creation&text=In%201973%20the%20Whitlam%20Labor,from%20nearly%20200%20different%20countries. [117] George Friedman, Australia’s Strategy, Stratfor, (May 22, 2012), https://worldview.stratfor.com/article/australias-strategy. [118] A History of the Department of Immigration: Managing Migration to Australia 57 (2017). [119] Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, 233–34 (Lord Greene MR). [120] Emergency powers in Australia, Chapter 8 (citing Re Minister of Arts, Heritage and the Environment v. Peko Wallsend (1987) 15 FCR 274, 277 (Bowen CJ)). [121]Minister for Immigration and Citizenship v. Li, (2013) 249 CLR 364. [122] David Morrison & Patrick T. Quirk, An Australian Conundrum: Genomic Technology, Data, and the CovidSafe App, 33 Pace Int'l L. Rev. 43, 57 (2020). [123] Hannah Dowling, Updated: Border Closures in Every State and Territory, Australian Aviation, (Oct. 25, 2021), https://australianaviation.com.au/2021/10/explained-border-closures-in-every-australian-state-territory/. [124] Covid-19 Timeline, CDC Museum, (2022), https://www.cdc.gov/museum/timeline/covid19.html (hereinafter Covid-19 Timeline). [125] Will Weissert, DHS report: China hid virus’ severity to hoard supplies, AP, (May 4, 2020), https://apnews.com/article/us-news-ap-top-news-international-news-global-trade-virus-outbreak-bf685dcf52125be54e030834ab7062a8. [126] See Covid-19 Timeline. [127] See Covid-19 Timeline. [128] 2020 COVID-19 State Restrictions, Re-openings, and Mask Requirements, NASHP, (2020), https://www.nashp.org/2020-state-reopening-chart/. [129] Gregg Re, After attacking Trump's coronavirus-related China travel ban as xenophobic, Dems and media have changed tune, Fox, (Apr. 1, 2020), https://www.foxnews.com/politics/dems-media-change-tune-trump-attacks-coronavirus-china-travel-ban. [130] Coronavirus: The world in lockdown in maps and charts, BBC, (Apr. 7, 2020), https://www.bbc.com/news/world-52103747. [131] Charles “Cully” Stimson, A Constitutional Guide to Emergency Powers, Heritage Foundation (March 31, 2020), https://www.heritage.org/the-constitution/commentary/constitutional-guide-emergency-powers. [132] Id. [133] Giulia McDonnell Nieto del Rio & Ralph Ellis, Rhode Island will knock on doors and stop cars to find New Yorkers to slow the spread of coronavirus, CNN, (March 28, 2020), https://www.cnn.com/2020/03/27/us/rhode-island-tracking-down-new-yorkers/index.html. [134] Janelle Bludeau, DPS troopers now staffing Houston airports, enforcing governor's travel order, KHOU, (March 28, 2020), https://www.khou.com/article/news/health/coronavirus/dps-troopers-now-staffing-houston-airports-enforcing-governors-travel-order/285-099f918d-d7ec-45fe-8186-e9d555ae2379. The author of this paper was a personal witness to DPS travel enforcements with dozens of DPS officers acting as a state equivalent to Customs and Border Patrol at Dallas-Fort Worth International Airport on May 1, 2020. [135] Kate Goodrich, Travel Restrictions Between Texas and Louisiana Further Tightened as Texas DPS Sets Up Checkpoints on All Roadways Between the Two States, JW News, (Apr. 7, 2020), https://www.jw.com/news/insights-texas-covid19-airway-travel-restrictions/. [136] See generally Bailey Schulz, Free COVID-19 tests are on their way. Will they work for travel?, USA Today, (Jan. 19, 2022), https://www.usatoday.com/story/travel/2022/01/19/free-home-covid-tests-travel/6584729001/. [137] A Timeline of Covid-19 in Canada, The Star, (Jan. 24, 2021), https://www.thestar.com/politics/2021/01/24/a-timeline-of-covid-19-in-canada.html; see also Dan Mangan, Coronavirus response: US and Canada closing world’s longest border to non-essential traffic, Trump and Trudeau say, CNBC (March 18, 2020), https://www.cnbc.com/2020/03/18/trump-says-the-us-will-close-the-border-with-canada-to-non-essential-traffic.html. [138] Id. [139] Id. [140] Id. [141] Id. [142] Id. [143] Id. [144] Id. [145] Id. [146] David Elliott, These are the countries best prepared for health emergencies, World Economic Forum, (Feb. 12, 2020), https://www.weforum.org/agenda/2020/02/these-are-the-countries-best-prepared-for-health-emergencies/ (data prior to the pandemic placed only the U.S., U.K., and Netherlands ahead of Australia in preparedness). [147] Lidia Kelly, Australian PM Morrison defends lockdown strategy as daily cases hit record, Reuters, (Aug. 22, 2021), https://www.reuters.com/world/asia-pacific/australias-pm-morrison-defends-lockdown-strategy-until-majority-vaccinated-2021-08-21/. [148] Id. [149] Explained: Border Closures in Every Australian State, (Oct. 2021), https://australianaviation.com.au/2021/10/explained-border-closures-in-every-australian-state-territory/. [150] Olivia Day, Australia's biggest Covid quarantine camp to close after housing thousands of returned citizens as the NT declares the pandemic is OVER and scraps vaccine mandates and ALL rules, Daily Mail, (Jun. 9, 2022), https://www.dailymail.co.uk/news/article-10898777/Australias-biggest-Covid-quarantine-camp-close-Northern-Territory-scraps-vaccine-mandates.html. [151] Id. [152] Lidia Kelly, Australian police clash with anti-lockdown protesters, arrest nearly 270, Reuters, (Sept. 18, 2021), https://www.reuters.com/world/asia-pacific/australia-reports-1882-covid-19-cases-police-quell-protests-2021-09-17/; Thousands Of People Protest Coronavirus Lockdowns In Australia, AP, (Jul. 24, 2021), https://www.npr.org/2021/07/24/1020158692/australia-covid-lockdown-protests-sydney-arrests-coronavirus. [153] 50 U.S.C. § 1544.
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