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Hercules Leaves (But Does Not Abandon) the Forum of Principle: Courts, Judicial Review, and COVID-19

Several analysts have warned about the sudden concentration of power in the hands of chief executives in the wake of the COVID-19 situation. From the Americas to Africa, and from Europe to Asia, we have witnessed a common pattern by which the executive branch has claimed extraordinary powers to tackle the challenges posed by the pandemic. This expansion of the executive’s prerogatives might be necessary in some places to cope with these exceptional circumstances. But it also comes with a price. Presidents and prime ministers not only can use but also abuse of the enhanced powers granted by the exception. As a result, some of these commentators have asked courts to actively intervene and keep a vigilant eye on the measures enacted by more-powerful-than-usual executive officials. Since strong executive offices could take advantage of this juncture to erode constitutional democracy, the argument goes, courts should be up to challenge and adopt a less deferential stance than the one they normally embrace in ordinary times. As an esteemed colleague from Colombia argued, ‘the more power the President has, the more judicial oversight courts should employ’.

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