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Saturday, September 5, 2020

Human Rights Workshop: Kim Scheppele Reflects on the Dangers of Executive Underreach

Kim Scheppele

Kim Scheppele described the often-overlooked threat to human rights posed by executive underreach.

On September 4, 2020, scholar of law and politics Kim Scheppele spoke to students and faculty about the findings of her research paper in the American Journal of International Law, “Executive Underreach, in Pandemics and Otherwise,” coauthored with David Pozen ’07. A different version of the paper — which she described as a “product of the pandemic” — will appear as a chapter in Democracy in Times of Pandemic, edited in part by Schell Center Director and Robert W. Winner Professor of Law and the Humanities Paul Kahn ’80.

Scheppele, Professor of Sociology and International Affairs at Princeton University, discussed the dangers of limiting legal scholars’ resources to monitoring executive overreach to the exclusion of a threat she identified as “executive underreach.” In light of governments’ insubstantial response to COVID-19 in the United States and elsewhere, Scheppele encouraged the audience to engage in a comparative legal analysis to understand how positive obligations are upheld around the world in the fight against executive underreach.

Watch a video of the event.

“We’re in a pandemic,” Scheppele said. “People are dying all over the world not only as a function of COVID, but as a function of the incompetence of their governments.” Scheppele described how, in some parts of the world, thanks to governments “competent enough to stamp out the virus in its first wave,” many people have been able to resume their pre-pandemic routines. Meanwhile, in countries like the United States and Brazil, there are over 40,000 new cases every day as of September 2020. Government responses have been uneven and, in places where governments “pretended [the pandemic] was not a problem,” Scheppele explained that the death toll is far greater and the outlook is far worse. In a pandemic, she said, governments play a significant role in the disease’s containment.

Scheppele identified two kinds of problematic government responses to emergencies such as the pandemic: executive overreach and executive underreach. Overreach is likely to occur, she explained, in an emergency in which a state leader can justify seizing special, even unconstitutional, powers that can subsequently be used to undermine opponents, overturn the rule of law, and infringe on people’s freedoms.

Essentially, according to Scheppele, the executive leader can “turn themselves into a dictator.” She cited Hungary as an example of a country that was already “on the edge” of authoritarianism until the COVID-19 pandemic became Prime Minister Viktor Orban’s opportunity for a “last push off the edge.” Fortunately — and surprisingly, Scheppele noted — there have been relatively few cases of executive overreach as a result of the pandemic, and most governments, according to Scheppele, reversed emergency powers after the height of the first wave.

In spite of the few examples of overreach during the pandemic, Scheppele said, human rights groups have placed undue focus on fighting against this type of government misconduct. Scheppele argued that, in doing so, human rights organizations were “running the risk” of defending civil liberties — believing these were under threat by the government — over protecting the rights to life and health, which are also important in addition to freedom of speech, association, and religious freedom and were also under threat due to government inaction.

Scheppele advocated for increased attention to a different type of government misconduct, which she termed executive underreach. She described executive underreach as a government’s failure to take action to protect the rights of its people. She argued that in the “evident emergency” of the COVID-19 pandemic, public health officials have repeatedly identified “a recipe that works better than anything else” for containing the virus; there is no question about what governments should do to protect people from the pandemic. Yet instead of “acting quickly and saving lots of lives,” Scheppele said, leaders like President Trump, Brazil’s Jair Bolsonaro, and the United Kingdom’s Boris Johnson abdicated their responsibility of sufficiently containing COVID-19.

“Governments simply failed to act,” Scheppele lamented. “Failure to act is a serious issue, a serious human rights issue. Your chance of dying from a disease depends on your government.” Because human rights work involves preventing threats to life and health, Scheppele said, she believes human rights organizations engaging with government pandemic response should shift their focus to cases where governments have refused to address those threats –– instances of executive underreach.

In the U.S. context, Scheppele asserted that even though President Trump possesses the proper emergency powers to contain the pandemic and has “statutory authorization to take explicit measures,” he has failed to use them. Despite the “legal powers, scientific evidence, and a public — not unanimously — but [overwhelmingly] clamoring in favor of these rules,” she said, the President did not act. She further explained that it is difficult to force him to do so through legislation because the U.S. President can veto legislation unless there is a two-thirds vote against his veto in both the House of Representatives and the Senate. The United States, Scheppele said, is “inhospitable” to legal challenges in the context of underreach. Because proving harm at the hands of inaction is difficult, Scheppele noted, it would require “creative lawyering to get those positive obligations upheld by a court.”

The serious challenges lawyers face in the U.S., however, are not universal. Scheppele mentioned several foreign jurisdictions with a more expansive view of how the law can protect rights, including positive rights such as the right to health. In Colombia, for example, Scheppele pointed to tutela actions, which Colombians have a constitutional right to file with any court in the country. Tutela actions are a legal tool used to demand the fulfillment of basic needs, including, for example, access to medications that would otherwise be too costly. In addition, after decades of brutal civil conflict between the Colombian government and the FARC, people displaced by the violence sent tutela actions to the Constitutional Court, which found that their displacement was unconstitutional and that the government was guilty of failing to protect its people. Colombia’s government was then obligated to fix an “unconstitutional state of affairs” — in which “millions of people were displaced by fighting” — by providing housing and healthcare services, Scheppele said.

These tutela actions, Scheppele explained, present an opportunity for lawyers in the United States to do some “blue sky thinking” about the possibilities of creative lawyering. “Substitute COVID and it’s the same argument,” she said. “We can’t imagine the U.S. doing this, but Colombia did it.” One of the obstacles in the U.S. to replicating this approach, she acknowledged, is legal standing. Filing a lawsuit similar to a tutela action would require redefining what a cause of action is and who can bring a case to court.

Scheppele said that “positive options” such as the tutela actions, which allow individuals to challenge government inaction, are largely used in countries like South Africa and India in the Global South. Since then, some countries in the Global North such as the European Union member states have adopted these sorts of actions. Scheppele cited Scotland, Germany, and Hungary as examples of European legal systems where courts can order the government to fulfill affirmative duties and establish frameworks to address the underlying problems that led to positive rights going unfulfilled. “Action for failure to act is in a number of legal systems,” Scheppele said. “Those who are affected by government inaction need a legal remedy.”

Scheppele conceded that courts are “not the ideal vehicle” for seeking remedies in a crisis like the COVID-19 pandemic. “These things take time and time is of the essence in a pandemic,” she explained. But while legal remedies “aren’t great with urgent cases,” Scheppele emphasized that, in many jurisdictions affirmative legal obligations exist and courts can uphold them.

“Human rights defenders were all on alert for governments doing something bad,” Scheppele said in her closing remarks. “But failing to do something required or good is also a kind of human rights violation.” She posed a question for the audience to reflect on: “When you have hundreds of thousands of deaths that result from government inaction and what to do to prevent them is so clear, why is it that our human rights imagination runs out?”

She expressed her steadfast belief that calling out inaction is just as important as calling out actions in the human rights context. “There are positive obligations [attributable] to a State,” Scheppele concluded. “We need to seek those remedies to hold [officials] accountable for positive obligations.”