Is the coronavirus pandemic an emergency?
I believe the answer is yes, in the immediate sense of what must be done. But it’s too early to tell, in the longer sense of whether our aim must be to return to the status quo ante, or undergo more permanent transformations. Either way, the legitimate, temporary suspension of basic rights does not abridge the most urgent requirements of distributive justice: The burdens of our state of exception must not be allowed to fall on the most vulnerable.
COVID-19 is an emergency in the sense that it’s a threat of extraordinary urgency. The emergency powers required to overcome it will include temporarily suspending some of our most fundamental rights, curtailing freedom of movement and freedom of association.
The rhetoric of emergency is among the most abused in modern politics. But that does not mean that emergencies cannot exist. In denying the existence of emergencies, influential philosophers like Giorgio Agamben discredit themselves.
That’s not a judgment that I take lightly. In my own research on the state’s emergency powers, I’ve tended to believe that the only justification for suspending fundamental rights is when such a suspension is necessary to preserve the institutions that make those rights possible. This is a stringent criterion.
For example, I thought the terrorist attacks of 9/11 were acts of mass murder, for which ordinary criminal processes were adequate. No state of exception was required (even though one was de facto declared by the Bush administration).
The current pandemic is different.
Failure to impose severe restrictions on movement and many basic institutions of ordinary life will lead to an overwhelmed health care infrastructure and could cause deaths as high as 2.2 million in the US alone . The larger structure under threat, therefore, is the web of social networks that comprise the material reality of our profound interdependence. The need to suspend aspects of our institutions in order to preserve them is our new reality.
If these are important ways in which the pandemic is an emergency, there’s another way in which it shouldn’t have been.
In order to see this, it’s helpful to define some terms. Words like emergency, crisis, and emergency powers are used varyingly and sometimes interchangeably. But there are important distinctions that a precise definition of these words can help bring out. My intention here isn’t to try to provide a truer or more authentic definition. Rather, I want to offer my own definitions of these terms that draw on conventional word-meanings in order to highlight distinctions that have important conceptual and political consequences.
The standard dictionary definition of an emergency has three elements: temporal (emergencies require swift or immediate action); epistemic (emergencies are unexpected and unanticipated); and existential (emergencies pose grave danger or threat).
Emergency powers, according to a tradition of republican political thought stretching back to the Roman Republican dictatorship, involve the temporary suspension of fundamental rights in order to overcome an emergency. Emergency powers are “conservative,” in the sense that their aim (and their justification) is to restore the status quo ante. Not all declarations of an emergency are emergency powers in this sense. For example, Trump’s March 11 declaration of a national emergency, while urgently needed, invoked the Stafford Act, which made federal funding available for states to use for medical facilities, testing, and other supplies. (Bill Clinton invoked the same statute in response to the West Nile Virus.) Because no fundamental rights were suspended, Trump’s declaration fell short of this definition of emergency powers. On the other hand, the “shelter in place” orders of several state governors to temporarily suspend freedom of movement and assembly are dramatic instances of (legitimate) emergency powers, whether conveyed through formal declaration or not.
Finally, my use of the word crisis in this context doesn’t attempt to encompass the rich and complex semantic history of the term. Rather, I use the term to highlight two important distinctions within an emergency. First, drawing on the nineteenth- and twentieth-century social scientific understanding, an emergency is unexpected, unanticipated, and arises suddenly, whereas a crisis is often predictable long in advance. The second distinction of crisis derives from its dramaturgical usage in classical aesthetics from Aristotle to Hegel. According to Jürgen Habermas’s summary of this tradition, a crisis occurs “in the revelation of conflicting norms against which the identities of the participants shatter, unless they are able to summon up the strength to win back their freedom by shattering the mythical power of fate through the formation of new identities.” A crisis, in this sense, is a condition in which the dramatic hero is either fundamentally transformed or destroyed. Whereas the goal of emergency powers is to restore the status quo ante, overcoming a crisis often implies fundamental and permanent transformation.
These distinctions bring out a sense in which COVID-19 is not an emergency. The necessary condition of an emergency is that it is unexpected, unanticipated, and arises suddenly. Although the precise biological form of the virus may be new, there has been a consensus among global health experts since at least the SARS epidemic in 2002 that globalization and climate change will make pandemics more likely and severe. It is clear in retrospect that these warnings, if they were acknowledged at all, were not taken seriously enough by most governments around the world. As is well known, the Trump team slashed the miniscule global health infrastructure they inherited from the Obama administration. In this respect, the framework of an “emergency” is a serious distortion of what we are facing: the total failure to plan for a pandemic that had been widely predicted by experts.
In other words, there may be reason to believe that COVID-19 is not an emergency at all, but a crisis.
The appropriate response to a crisis is not the temporary suspension of rights, justified as necessary to return to the status quo ante. Rather, what defines a crisis is that the entity in question either fundamentally, permanently transforms — or ceases to exist. The appropriate response to a crisis is not temporary emergency powers but permanent, future-oriented transformation. Climate change, for example, is sometimes characterized as an emergency, but according to the definitions I’ve offered, it is exemplary of a crisis.
It’s ultimately too early to know whether COVID-19 is not an emergency at all but a genuine crisis from which there is no recovery without permanent, forward-looking transformations. We’ve already seen compelling best- and worst-case sketches of what permanent transformation could portend. There may be no more compelling political question in the coming months than how to mobilize in order to make the former as likely as possible.
Whatever the ambiguities and potential limitations of the emergency framework, it’s the one we seem to have adopted. Given that we’re in it, what are its most salient dangers?
One is that emergencies often create a false sense of homogeneity of sacrifice. After 9/11, for instance, this often took the form of a discussion about balancing liberty and security, in which the question was how much of “our” liberty to trade for more of “our” security.
As legal scholars like David Cole pointed out at the time, the image was corrupt — even if one accepts the dubious proposition that the war on terror increased security as a whole. In reality, only very few Americans — overwhelmingly Muslims and people of Arab and South Asian descent — were asked to make material sacrifices in liberty, often extremely drastic ones, for the putative increase in security that everyone else was said to benefit from. The image of balance obscured the fundamental reality that the burdens of emergency powers are often overwhelmingly concentrated on particular groups.
As we prepare to suspend fundamental rights in response to this pandemic, we must emphasize that distributive justice applies to emergency measures every bit as much as it applies to other domains of life. That means the burdens and benefits of social cooperation will be distributed very differently in different sectors of a radically unequal society.
As we begin to enter into the genuine crisis stage, the suffering will be immense, and will be thoroughly filtered through existing inequalities — not just in terms of who will die from the virus, but who will suffer and die from the economic consequences of the damage wrought by the outbreak.
This is no less true of pandemics than it is of emergency powers related to war or insurrection. As Mike Davis reminds us of the 1918–19 “Spanish” influenza pandemic (which probably originated in Kansas):
It is rarely appreciated, however, that fully 60 percent of global mortality occurred in western India where grain exports to Britain and brutal requisitioning practices coincided with a major drought. Resultant food shortages drove millions of poor people to the edge of starvation. They became victims of a sinister synergy between malnutrition, which suppressed their immune response to infection, and rampant bacterial and viral pneumonia.
Who bears the burden of the current crisis will be equally determined by existing inequalities.
The pattern that is already emerging — in what Jedediah Britton-Purdy has called the “privatist” paradigm of response — will become increasingly entrenched: the rich withdraw; the professional and middle classes lockdown and bear the inconveniences; and the poor continue to work, get sick, and die in radically disproportionate numbers.
That’s why it’s so urgent that our public health demands include immediate, genuine sick leave for all workers and not a cynical fig leaf of a House bill that leaves 80 percent of workers uninsured. Our demands must include expanded insurance for all the workers who are facing layoffs or severe cutbacks, along with a rent freeze and eviction moratorium, and immediate, unconditional cash payments or wage payments (as countries like Denmark and France have initiated) to allow people to survive the severe job losses that have already begun. Our demands must include the wartime production of hospital infrastructure, ventilators, masks, hand sanitizer, and other basic goods; free distribution of food, medicines, and other necessities; and planned investments in areas of urgent public need. And our demands must highlight the need to create an alternative to private, for-profit health care once and for all.
The declaration of an emergency doesn’t make demanding these things impossible but it can make them more difficult. That means it’s all the more important to insist that the suspension of some basic rights doesn’t necessitate the suspension of justice. Justice matters more, not less, in an emergency.
Ian Zuckerman teaches politics at Regis University. He is writing a book about emergency powers, entitled The Politics of Emergencies: War, Security and the Boundaries of the Exception in Modern Emergency Powers.