Appellate Precedent and Executive Power in the Time of COVID-19. Americans must ask themselves how much they are willing to cede in times of fear

• Date: 01 June 2020
• Author: Robert A. O'Donnell

Appellate Practice

Spring 2020, Vol. 39 No. 3

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ARTICLES

June 19, 2020

Appellate Precedent and Executive Power in

the Time of COVID-19

Americans must ask themselves how much they are willing

to cede in times of fear.

By Robert A. O’Donnell

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation.

Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all

coronavirus-related articles are outside our paywall and available to all readers.

U.S. military forces under the Authorization for Use of Military Force fight groups that did

not exist when Congress passed that wartime resolution. Detention without trial under

President Bush evolved into proxy assassinations under President Obama. President

Trump’s administration appears chary of committing to the Middle East, though it has still

made targeted strikes, sometimes dramatic ones, under the justification of national

security.

Now, a new national security threat has arisen, and it, too, has emboldened politicians’

clamor for yet more power. At the time of this writing, a respiratory infection from inland

China has shattered the world. The global response to the pandemic has been

unprecedented: nations have imposed widespread lockdowns and closed their borders.

Americans must ask themselves how much they are willing to cede in times of fear,

whether their concessions are temporary or whether the American governments, like C. S.

Lewis’s N.I.C.E., intend to garrison their posts with each new advance. This brief study

turns to the obscure past to help with the hard work of coming to understand the various

ways that our legal tradition has interpreted the proper scope of a just government’s

authority during times of crisis.

Demerara and the Military Trial of Civilians

We last considered a disagreement between Justices Antonin Scalia and Clarence Thomas

concerning the deference that the courts should grant to the executive branch to imprison

citizens without process during times of war. We examined the long fight in the Supreme