14 Return of the “Administrative State?” The Expansion of Executive Power under Crisis

Author

Yi-En “Mike” Tso, Soochow university, Taipei, Taiwan

 

Keywords

administrative state, executive branch, checks and balances, COVID-19

 

Abstract

In democratic republic country, citizens are willing to temporarily suspend their fundamental right or allow the expansion of the public sector’s executive power during the national emergency. However, the executive branch may not give up their expanded power after the crisis. The expanded executive power may pose new threats to democracy. This brings up an important question: how do different countries respond to such phenomenon to protect their democracy or voluntarily suspend their fundamental rights? In this chapter, the author compares and discusses global cases during the COVID-19 pandemic to find out citizens’ different acknowledgement of democracy, fundamental rights and their attitudes toward governmental crisis response efficiency will determine whether the democracy backsliding will happen.

 

Introduction

“When their enemies were at the gates, the Romans would suspend democracy and appoint one man to protect the city. It wasn’t considered an honor; it was considered a public service.”

“. . . The last man who they appointed to protect the Republic was named Caesar, and he never gave up his power” (The Dark Knight, 2008).

This exchange between Harvey Dent and Rachel Dawes in the movie, “The Dark Knight,” reflects the fact that even in democratic republics, citizens may temporarily forfeit their fundamental rights or allow the expansion of executive power during national emergencies. In ancient Rome, when the republic faced a crisis, the Roman Senate would appoint a “dictator” with extraordinary power to lead Rome’s crisis response. When the crisis ended, the dictator’s term was over, and their newly gained power was revoked. Over a 300-year period, approximately 90 Roman dictators were appointed, and no one extended his power at the end of the crisis (Tso and Lin 2022, p. 2).

However, the executive branch of government may seek to retain its expanded power after the emergency, posing new threats to democracy. This brings up an important question: how do countries prevent the possibility of democratic backsliding after citizens voluntarily forfeit their fundamental rights? This research focuses on the quality of a political phenomenon and does not seek to test hypothesis in a society. However is does rely on a qualitative research method with data gathered from existing research papers, news reports, governmental documents, etc. The comparative case study is used in this chapter as the method of analysis because the goal is to explain how the executive power expansion occurred in different countries during the COVID-19 pandemic. Comparing, along with other methods such as survey, interview or field study, analyzing different countries’ cases through reviewing literature, is a practical and simple way to undertake a global study. After analyzing and comparing the administrative power expansion phenomenon in selected countries (e.g., the U.S., South Korea, Taiwan and Norway), implications and suggestions are made for both academia and practitioners. South Korea, Taiwan and Norway are selected because each of them presents unique administrative power expansion type: the moderate (South Korea), the controversial (Taiwan), and the self-disciplined (Norway). Their different governmental COVID-19 responses may offer insights toward how different types of administrative power expansion occurred during the COVID-19 pandemic and how citizens in these countries respond to such phenomenon. Lessons learnt from global cases help us have a more comprehensive understanding toward the relationship between national crisis and democracy value protection.

Several studies have examined the expansive use of executive power to advance political, economic, and social goals during or after national emergencies, and to determine whether the public will accept such power expansion (Rahman 2018; Lowande and Rogowski 2020; Wei 2021; Jacobs et al. 2022). Research indicates that citizens will allow executive power expansion to improve the efficiency of government in disaster response and recovery activities. For example, the U.S. Congress passed the “USA PATRIOT Act” in response to the September 11 attacks. This act expanded the surveillance abilities of the U.S. government to more effectively respond to terrorism. After the act expired in 2020, disputes about how to balance improved crisis response and human rights protection remain concerns for government officials, legislators, and researchers.

Literature has also addressed how global governments responded to the COVID-19 pandemic (Bouckaert et al. 2020; Kavakli 2020; Moon 2020; Pryce and Myers 2020; Maor et al. 2020; Birkland et al. 2021; Kapacu and Moynihan 2021; Nicholas et al. 2022; Chang et al. 2023). Some of these articles discuss the relationship between crises and bureaucracy (Asatryan et al. 2016). Others discuss how authoritarian state leaders exploited the pandemic to enhance public censorship and consolidate power (Roth 2020) or the human rights issues within governmental responses to the COVID-19 pandemic (Li 2021).

However, while many studies focus on human beings’ resilience toward disasters, few discuss democratic resilience after disasters. More specifically, few focus on the preservation of democracy after a public health emergency with the unprecedented magnitude of COVID-19 (Lin et al. 2020; Roth 2020; Tso and Lin 2022).

Many researchers discuss the (adequate) executive power expansion phenomenon in global countries, but very little research has been conducted to compare such phenomenon during the COVID-19 pandemic. With this in mind, this following chapter seeks a more comprehensive understanding of how we ensure that the checks and balances persist despite executive power expansion. It discusses the expansion of executive power in the context of the COVID-19 pandemic (2020 to 2022) by comparing the cases of Norway, South Korea, and Taiwan. Although the three cases also differ with respect to variables other than the presence of executive power expansion, the available data suggest that citizens tend to allow more executive power expansion during the national crisis for having better disaster response efficiency. However, the extent to which the executive power can be expanded in responding to crises is still critical nowadays to assure the democracy values and basic rights will be protected in the next national crisis. This chapter aims at fulfilling the research gap in such issue.

The author compares and discusses these cases of executive power extension during the COVID-19 pandemic to show that the possibility of democratic backsliding depends on citizens’ different acknowledgment of democracy and fundamental rights, as well as their attitudes toward governmental crisis response efficiency. The chapter illustrates that FEMA, as the global leader in emergency management, must share experiences about not only disaster response but also democratic consolidation. This chapter therefore aims to call the public’s attention to the balance between effective disaster response and democratic values.

 

Literature Review

In order to conduct the study in this chapter, the definition of “administrative state,” and the relationship between national emergencies and executive power expansion are discussed in this section.

What is the “administrative state”?

The term “administrative state” has several meanings. First, public administration scholar Dwight Waldo uses this term to describe a new ruling class in the U.S. consisting of bureaucrats, administrators, and experts. He expects this elite class will challenge democratic governance in the United States (Roberts 2020, pp. 391). In addition, the term “administrative state” refers to the federal agencies that Congress granted the authority to issue regulations that carry the force of law (Dudley 2021, p. 33). These organizations were designed by Congress and have been resoundingly approved by the Supreme Court of the U.S. to accomplish the goals of the U.S. government (Beermann 2018, pp. 1602).

In addition to the points made above, some scholars refer to the “administrative state” while discussing their worries about uncontrolled government expansion and bureaucratic power (Roberts 2020, pp. 392). From a conservative perspective, when Stephen Bannon asserted in 2017 that the Trump administration would “deconstruct the administrative state,” he was using the term to refer to “the system of taxes, regulations and trade pacts that the President says have stymied economic growth and infringed upon U.S. sovereignty” (Rucker and Costa 2017). Bannon’s definition reiterated public concerns about what is the adequate limitation of using administrative power to secure liberty? Indeed, the uncontrolled growth of the administrative state will bring unnecessary regulation, job losses, high prices, and the inability of American businesses to compete in international markets (Beermann 2018, pp. 1600). The checks and balances system is designed to ensure that no single power (i.e., government branch) can dominate the public sector. In other words, an unparalleled government branch may be dangerous to liberty. The author borrows these ideas in this chapter to describe how uncontrolled administrative power expansion may threaten society as much as the crisis that such expansion is intended to remedy.

 

National emergencies and executive power expansion

According to the literature, national emergencies may be used as the basis for increasing executive power (Lowande and Rogowski 2020; Lin et al. 2020, p. 259). Threats to public safety necessitate quick and decisive action that cannot precede at the deliberate pace of ordinary constitutional rule (Ferejohn and Pasquino 2004, p. 210; Tso and Lin 2022, p. 2). During crises, people tend to demand leadership, which drives executive power expansion (Lowande and Rogowski 2020, p. 5). The COVID-19 pandemic is a good example of this situation. The conditions of the crisis led to a rapid executive power expansion worldwide from 2020 to 2022 (Brown et al. 2020). In responding to the COVID-19 pandemic, governments took two approaches to expanding executive power: (using) emergency power and (or) enacting emergency legislation.

In the U.S., the President is authorized to extend their executive power during national emergencies using the “presidential emergency power.” When the emergency is over, the presidential emergency power is withdrawn. Emergencies that warrant the extension of presidential power include terrorist attacks, epidemics, labor strikes, disasters, etc. During crises, the President may declare that the Constitution authorizes him or her to exercise powers usually granted to the legislative or judicial branches of government, thus fusing all governmental power in the executive branch for the duration of the crisis (Sylves and Buzas 2007). These delegations or grants of power authorize the President to govern effectively during crises (Relyea 2001, p. 1). In the checks and balances system, the Constitution is designed to limit the exercise of power and eliminate the possibility of presidential abuses of power. However, in some situations, the checks and balances system may significantly limit the efficiency of government actions, as argued by Ferejohn and Pasquino (2004): 

Insofar as modern constitutional governments are limited in this way, they may be somewhat disabled in dealing with emergencies. When the public safety is seriously threatened, there may be a need for quick and decisive action that cannot, perhaps, wait for the deliberate pace of ordinary constitutional rule. This, indeed, is a central dilemma of a liberal constitutional government. . . . As a result, modern constitutions often have special provisions for dealing with emergency situations. In cases of an urgent threat to the state or regime, constitutions sometimes permit the delegation of powers to a president, or to some other constitutional authority, to issue decrees, to censor information, and to suspend legal processes and rights. The purpose for which this special authority is granted is fundamentally conservative: it is aimed at resolving the threat to the system in such a way that the legal/constitutional system is restored to its previous state.

However, even with presidential emergency power, the President cannot cross the boundaries of constitutionality or legality. The judiciary and Congress can restrain the executive regarding emergency powers (Relyea 2001, p. 1; Tso and Lin 2022, p. 3). For example, President Theodore Roosevelt believed that for the President, “it was not only his right but his duty to do anything that needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” In contrast, President William Taft held that “the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise.” In his view, such a “specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is,” Taft concluded, “no undefined residuum of power which he can exercise because it seems to him to be in the public interest” (Relyea 2001, pp. 5-6).

The exercise of emergency power has thus aroused debates and concerns about its limitations and appropriate use. Other circumstances have revealed similar concerns. When President Abraham Lincoln suspended the writ of habeas corpus based on Article I of the Constitution during the Civil War, he temporarily restricted human rights to ensure the stability of American society during a national emergency. After the war, this restriction was reversed.

The legal case, Korematsu Versus the United States in 1944, is an illustrative case of such issues. To prevent the country from being harmed by the possible spy activities of Japanese Americans living in the U.S., President Franklin D. Roosevelt signed Executive Order 9066 in 1942, which authorized the Secretary of War to designate parts of the country as “military areas” from which anyone might be excluded, and in which travel restrictions might be imposed (InfoUSA 2012). Approximately 110,000 Japanese Americans were sent to prison camps to be monitored by the U.S. government. Such action aroused public debates about whether the central government has the power to limit the freedom of residence and movement for national security purposes. In Korematsu V. United States (1944), the majority of the Supreme Court agreed with Judge Hugo Black’s view that such limitation is constitutional (InfoUSA 2012):

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions… Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger . . . 

However, three Judges offered dissenting opinions. Judge Murphy argued the following (InfoUSA 2012):

Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism. . . . Individuals must not be left impoverished of their constitutional rights on plea of military necessity that has neither substance nor support… Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. . . . I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

After World War II, in 1948, Congress passed the Japanese American Evacuation Claims Act to give monetary compensation to victims. In 2011, the Department of Justice filed an official notice to concede that the Court’s original decision on the case was in error, thus erasing the case’s value as precedent for interning citizens (Russo 2011). In this situation, the critical question is whether a national emergency could justify restricting human rights. In the Korematsu case, the freedom of movement was temporarily restricted, too. However, the judicial system regarded this action as illegitimate. Why? The old saying goes that “law is silent in wartime” (InfoUSA 2012). However, this does not legitimize racist actions for national emergency purposes. In his famous “Letter from Birmingham Jail” in 1963, Dr. Martin Luther King, Jr. pointed out that “Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.” The restriction on the movement of Japanese Americans during World War II is obviously segregation because the U.S. government had no evidence to show that all Japanese Americans would engage in espionage in the U.S. German Americans suffered from similar segregation twice—in World War I and in World War II. However, unlike Japanese Americans, German Americans have not received any apologies or restitution from the U.S. government.

U.S. Presidents have employed emergency power differently throughout history. President Lincoln employed his emergency power to restrict human rights during Civil War. President Harry Truman used emergency powers when he seized private steel mills that failed to produce steel because of a labor strike in 1952. With the Korean War ongoing, President Truman asserted that ensuring troops were well-equipped with material resources was necessary for military success. However, the Supreme Court decided that no emergency power grants the President the authority to unilaterally seize private property without Congressional legislation (LII 2012). Thus, under the existing checks and balances system, the Congress has the ex-post power to limit presidential emergency power.

Still, the Administrative Procedure Act (APA) offers another kind of ex-ante control over executive power (Calo and Citron 2021, p. 814). The National Emergencies Act (NEA) of 1976 terminated all existing states of emergency and established a uniform procedural framework for the future exercise of all emergency powers (Ackerman 2004, p. 1078). The APA provides a robust framework for regulating the executive branch based on the principles of democracy and the rule of law. The judicial branch could not examine the President’s decision before it was exercised through administrative or policy actions. However, if such actions violated human rights, citizens could use the court to seek remedies from the government. Such institutional design helps to reduce the possibility of presidential abuses of power and, thus, protect human rights. Even if such damages occur, the judicial system could help victims seek appropriate compensation.

Because presidential emergency power is time-limited, the executive branch may increase its power through legislation. In recent decades, U.S. Presidents have frequently used executive legislation power to make or affect public policy without congressional oversight. Moreover, the Supreme Court and Congress tend to avoid challenging the President’s executive order. The President may rely on this executive power expansion to achieve legislative goals. Scholars have worried that such unchecked use of executive legislation has expanded the executive power to violate constitutional principles, posing a threat to democracy (Covington 2012, pp. 1-2, 4). Some scholars argue that during the COVID-19 pandemic, local and federal politicians in the U.S., including Republicans and Democrats, formed a dynamic of executive-centered partisanship. The expansion of administrative power during the Trump administration has roiled the American state (Jacobs et al. 2022, p. 226).

Moreover, emergency legislation aims to mitigate emergencies by enacting statutes that delegate special and temporary powers to the executive. This practice implies that emergency powers are to be understood as exceptional to the ordinary operation of the legal system and should be revoked once the emergency subsides (Tso and Lin 2022, p. 3). Emergency legislation creates closer legislative supervision of the executive’s power expansion than presidential emergency power (Ferejohn and Pasquino 2004, pp. 216-217). However, emergency legislation is not obviously more “democratic” or “appropriate” than presidential emergency power in modern democratic countries like the U.S. Congress may enact statutes to grant additional power to the executive branch for dealing with disaster response and recovery. Such statutes can remain in effect after the end of the emergency, thus sustaining the executive power expansion. For example, critics of the USA PATRIOT Act feared that it would result in civil rights abuses, such as unchecked government searches of personal records and communications. In response to the pandemic and under the authorization of emergency legislation, the public sector proposed public policies that could limit or violate basic rights. So, some scholars suggested that the principles of the rule of law, proportionality, and basic rights protection are the three pillars limiting the expansion of executive power during crises (Wei 2021, p. 2368). These perspectives deserve further evaluation.

 

Methodology

In order to better understand these issues, the author attempted to find whether and the extent to which executive power can be extended in responding to crises and how to avoid the power abusing problem in exercising such power in this chapter. A qualitative method is used to compare different countries’ experiences through reviewing governmental documents, news reports and research findings. The comparative method was used to examine the emergency management, disaster response policies and politics in this chapter. Such a method allows us to have a more comprehensive view toward how global countries respond to the COVID-19 pandemic. The major strengths of the comparative method lie in “helping us to understand, explain, interpret, and verify or falsify generalizations (Sartori 1991, p. 244; McEntire and Mathis 2007, pp. 180-181). This is a “small N” study which only analyzes 4 nation’s cases (Norway, South Korea, Taiwan, and the U.S.). Each of these countries has unique history, politics, and social settings, thus the research findings may not fit in other global countries. However, both practitioners and academia may benefit from this chapter because it is broader than a single case study and is easier to conduct than a major study involving numerous cases.

 

Findings

Global governmental response to COVID-19 pandemic

In this section, three countries in East Asia and Europe are selected to see how different national governments responded to the global public health emergency. The COVID-19 pandemic provides another example of the expansion of power and legislation regarding the administrative state. Three different types of executive power expansion were presented by these countries. All of three types help to enhance governmental disaster response, but each of them may reflect different trade-off between efficiency and basic right protection. The COVID-19 pandemic (2020-2023) not only brought tremendous harm to human beings and society but also led to different crisis responses from governments worldwide. Emergency power and emergency legislation are two common and powerful tools for governments to respond to national emergencies. Governmental responses differed according to institutional designs and political leaders’ acknowledgment of disasters. Only domestic laws could help the public sector gather needed supplies, restrict economic activities, and limit personal liberty (Coglianese and Mahboubi 2021, pp. 9). Thus, many government leaders cooperated with the legislative branch to enact laws authorizing the public sector to take immediate action in responding to the pandemic. Legislators in the U.S., Taiwan, and South Korea enacted special laws or budget bills to enhance the public sector’s COVID-19 response. Moreover, the U.S. President, state governors, and city mayors used their emergency power to mitigate the effects of the pandemic. The Prime Minister of the United Kingdom used his emergency power to “lockdown” cities. The Prime Minister of Japan and the Mayor of Tokyo City also used emergency powers to limit human and business activities.

South Korea: The Moderate Power Expansion
Given their experience with recent outbreaks, the South Korean and Taiwanese governments acted swiftly when COVID-19 began to spread. In South Korea, the insight gained from Middle East Respiratory Syndrome (MERS) in 2015 helped the public sector respond to the pandemic efficiently. The “3T (test-trace-treat)” strategy, collecting personal information through information communication technology (ICT), widespread public health measures and citizen participation are critical factors of the Korean government’s COVID-19 policies (Hong and Lim 2023, p. 323). Some scholars argue that South Korea’s collective culture deeply impacts people’s attitudes toward the pandemic. Many South Korean people are willing to follow the governmental COVID-19 policies such as mask wearing in public places to achieve the communal benefits (Song and Choi 2022, p. 199).

According to Article 76 of the Constitution, South Korean President may declare an emergency order to deal with national emergencies. However, in 2020, President Moon, Jae-In refused to use emergency order or emergency law to deal with the pandemic. The revised “Infectious Disease Control and Prevention Act” in South Korea gives the government extensive legal authority to collect personal information from confirmed and suspected patients without a warrant (Chang et al. 2023, p. 229), allowing the government to obtain personal data such as credit card history and mobile phone location information. The revised IDCPA in 2021 authorizes the Minister of Health to collect personal data to track the travel history of confirmed patients and to disclose such information to the public without a court order. After the rapid spread of the virus linked to the Shincheonji Church of Jesus, the South Korean government enforced widespread COVID-19 testing. Despite not locking down cities or businesses, the death rate remained low. Such low death rate helped the central government win more public support. More than 60% of South Koreans were satisfied with the government’s COVID-19 response. However, some of governmental COVID-19 policies were criticized by the public as well. For example, the government often revealed the test-positive cases’ personal information (such as the name of infected cases) to the public. South Korean government’s “track and disclose” policy aroused widely public concerns and debates about privacy and surveillance issues (Lee and Kim 2021). Such policy not only violates personal privacy but also puts public pressure on the patients and their family (Rich et al. 2020). In order to solve this problem, the revision of laws and regulations is required. In September 2020, an additional limitation was added to IDCPA which states that “personal information determined to be irrelevant to the prevention of infectious diseases by Presidential Decree, such as sex, age, and so on, shall be excluded (Lee and Kim 2021).” Some human right issues with the IDCPA, for example, the Article 49 limits the number of people allowed to join in private gatherings and restrict gatherings in certain locations (5 or more people gathering is banned in religious organizations, night clubs, restaurants, etc.) may infringe the freedom of assembly and movement (Lee and Kim 2021).

Based on the arguments above, there are human right issues within some of South Korean government’s COVID-19 policies (privacy and personal freedom). However, due to having collectivism cultural values of the Korean society, people are willing to sacrifice their individual freedom for collective gains. Besides, Korean tend to unite when the nation experiences a crisis (Song and Choi 2022, p. 199). Similar attitudes can be found in other East Asian countries such as China and Japan. In the collective society such as South Korea, China and Japan, people may feel pressure to obey the governmental COVID-19 policies. For these people, obeying the policies is considered as a social responsibility to protect their neighbors and themselves (Song and Choi 2022, p. 202). By contrast, many of Western countries are deeply affected by individualism, which values individual freedom more than public interests. In these cases, citizens may resist the governmental COVID-19 policies such as wearing face masks in public space because such order may violate personal freedom.

Taiwan: The Controversial Power Expansion
The insight gained from SARS in 2003 helped the Taiwanese government create a robust public hygiene system at the beginning of the COVID-19 pandemic. President Tsai Ing-wen refused to use her emergency power, instead relying on emergency legislation as the main approach in responding to the pandemic. The Legislative Yuan (Taiwanese Congress) enacted the “Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (hereinafter, “COVID-19 Special Act”) on February 25, 2020, as a regulatory instrument for the generalized measures in preventing transmission, providing relief, and revitalizing public health to combat COVID-19 (Tso and Lin 2022, p. 5). In addition, the Communicable Disease Control Act (CDC Act) provides a broad overarching legal structure for the Taiwanese government to undertake various measures deemed necessary to prevent and contain the spread of diseases (Li 2020, p. 1123). Both Acts comprise the legal framework of governmental response to the pandemic.

The CDC Act authorized the Taiwanese government to establish the Central Epidemic Command Center (CECC) for the COVID-19 outbreak after the first case was confirmed on January 21, 2020. The CECC took responsibility for coordinating all control measures across various agencies to prevent the outbreak of COVID-19 in Taiwan (Li 2020, p. 1123; Chang and Lin 2021, p. 1; Tso and Lin 2022, p. 5). The CECC was originally positioned at the third level within the hierarchy of the central government but was upgraded from level 3 to level 2 after the first case of COVID-19 was confirmed in Taiwan and downgraded back to level 3 on May 1, 2023. Nonetheless, Article 7 of the COVID-19 Special Act authorized the commander of the CECC to execute any “necessary response” actions for disease control. Such open-ended lawmaking authorizes compulsory measures such as physical examinations and short-term detentions or quarantines, which could significantly limit civil liberties. Furthermore, the CDC Act makes broad delegations to bureaucratic entities (Chang and Lin 2021, p. 2). Being excluded from international organizations such as the World Health Organization, the Taiwanese government developed a self-help approach to responding to health crises that heavily relies on technocratic decision-making (Lin et al. 2020, pp. 257-258). The significant expansion of administrative power during the pandemic caused debates and concerns about undermining the principles of the rule of law, legal authorization, and proportionality. This open-ended lawmaking blurred the distinction between legislation and executive measures (Kuo 2020; Tso and Lin 2022, p. 10). Moreover, quarantine measures for confirmed cases and people who had been in contact with confirmed cases or had traveled abroad were criticized as a violation of people’s freedom of movement.

Unlike the U.S., Taiwan lacks legal regulations to help the President deal with national emergencies. The President in Taiwan could use their emergency power (through announcing an emergency order) to deal with national emergencies, and statutes such as the CDC Act or DPPA (Disaster Prevention and Protection Act, the fundamental law of Taiwanese emergency management) are designed to regulate disaster response. Still, the limitations of using emergency powers during a national emergency remain unclear. Thus, the extent to which the President relies on emergency power depends on their personal judgment.

The Taiwanese Government’s use of ICT to collect personal identification information, such as the Geofencing tracking system (electronic surveillance to monitor quarantining people) and the SMS contact tracing system (a measure requiring people to scan a QR code before entering public places such as movie theaters, convenience stores, restaurants, etc., to allow the CECC to track people’s whereabouts) aroused privacy concerns. The Taiwanese central government promised the CECC would only use SMS data to track the confirmed cases’ location and contact history. However, when a news report revealed that the police department used SMS data to track crime suspects, people wondered about the extent to which the government had used this data for purposes unrelated to pandemic management. Furthermore, many mobile phone users complained about receiving scam text messages asking for personal identification information such as ID number, birth date, bank account number, etc. Thus, the Taiwanese central government warned about such new scam types related to the pandemic and suggested mobile phone users “check the recipient details of automatically generated real-name registration text messages amid reports that people have tampered with QR codes” (Hsu and Madjar 2021).

Norway: The Self-Disciplined Power Expansion
Norway has a strong public sector and a high‐trust society. The mutual trust relations between citizens, the public sector and different government branches are higher than in many other countries (Christensen and Lægreid 2020, p. 775). The number of COVID-19 infections and deaths in Norway is very low as compared to other European countries. Norway only exercising a strict internal lockdown for a relatively short period (Skjesol et al, 2024, p.1). In Norway, the contact tracing mobile application called “Smittestopp” was developed by the Norwegian Institute of Public Health (NIPH) to prevent the spread of COVID-19. People who tested positive could download Smittestopp on their smartphones, and the app would send warning messages to people they were in contact with to inform them that they may have been exposed to the virus. The NIPH received anonymized data about the daily movements of people who tested positive. The Norwegian Government promised that the app would not let others know that the users have been infected, all the anonymized data would be deleted after 30 days, and any user could delete their personal information from the app at any time (OPSI 2020). However, the government temporarily halted the use of the app, with the Norwegian Data Protection Authority claiming in June 2020 that it could “no longer be considered a proportionate intervention in the users’ fundamental rights to data protection.” According to the director-general of the Data Protection Authority, “The European Data Protection Board has concluded that the use of location data in contact tracing is unnecessary and recommend the use of Bluetooth data only. We do not find that NIPH has sufficiently justified the need to use location data for contact tracing and await new information from NIPH on this issue” (EDPB 2020). In December 2020, the Norwegian government encouraged citizens to download a new version of the app called “Smittestopp II.” In August 2022, Smittestopp II was deemed ineffective. The Norwegian case suggests that European countries have set up a robust framework to prevent the possible abuse of power in using ICT to deal with national emergencies. The “Digital Services Act package,” which includes the “Digital Services Act (DSA)” and “Digital Markets Act,” aims to create a safer digital space that protects the fundamental rights of all digital service users in the European Union (European Commission 2024).

Based on the “European Digital Constitutionalism,”^[1] the DSA protects users’ fundamental rights by preventing illegal and harmful activities online and mitigating the spread of disinformation. People in E.U. countries who use smartphone apps such as Smittestopp are protected because app developers (in this case, the Norwegian government) are regulated by the DSA. Thus, when Smittestopp was judged as violating DSA, it was banned. After the second version of Smittestopp (Smittestopp II) was released at the end of 2020, the sharp increase in infected cases forced the Norwegian government to encourage Norwegians to download Smittestopp II (these apps were downloaded and used voluntarily; even infected individuals were not required to use them). The “Taiwan social distancing app” is similar to Smittestopp. The Taiwanese government encouraged citizens to use this app after the SMS contact tracking service was deemed ineffective in 2022. Both apps used Bluetooth to detect whether users have had close contact with infected individuals. However, these apps were only effective if infected individuals used them. Due to an increasing number of complaints about the Taiwan social distancing app and a dwindling user base, the service ended on December 31, 2023.

 

Discussion

“If administrators control policies, who controls the administrators?” This question asked by Robert Dahl (1940, p. 10) reflects the core issue of why we need to discuss the executive power expansion issue. The main theme of administrative power studies nowadays is expansion and shrink (Wei 2021, p. 2368). Facing national emergencies such as the COVID-19 pandemic, reasonable administrative power expansion helps to enhance the public sector’s disaster response efficiency. How to control the expanded power, or how to hold the government in control during the crisis has become a critical question in constitutionalism and democratic theories after the pandemic. Some scholars contend that “administrative agencies by their very nature violate the text and spirit of the Constitution in exercising and even commingling powers committed to separate branches” (Calo and Citron 2021, p. 811).

Executive power must obey institutional constraints to ensure that democratic values and individual rights are not threatened. Still, many people believe that the public should yield to security in crises because emergencies require extraordinary measures. Some governments, especially authoritarian ones, used the pandemic to crack down on political opposition and tighten their grip on power (Brown et al. 2020). Democratic or authoritarian leaders may use emergencies to bolster their executive power in the name of “keeping society stable.” “Necessitas non habet legem” (necessity has no law) not only presents a tension between collective security and individual rights but also suggests that “necessity” is the foundation of emergency power (or legislation). Thus, the expansion of executive power must obey the doctrine of necessity (Chen 2000, p. 115). Some scholars suggest that “any measure by a democratic government against the coronavirus should be limited in duration (Hänel 2020).” The threat of national emergencies (such as disasters and terrorism) can create constitutional conflict (Harris 1992, p. 984). A constitutional government may use its emergency power to deal with threats and challenges that could not otherwise be handled under normal authority. Such power may infringe upon citizens’ constitutional rights if considered necessary to mitigate emergency circumstances. Thus, government leaders have struggled to determine the extent to which executive power can be extended in responding to crises and how best to avoid government overreach in exercising such power. Emergency power, emergency legislation, and other ex-ante or ex-post approaches offer different perspectives on such issues. Congressional oversight and the principle of legal reservation are critical for assuring the rule of law and protecting basic rights (Lin et al. 2020, p. 271). Some scholars suggest that a responsive political process with citizen activism is the key to tyranny in pandemic control (Chang and Lin 2021, p.4).

Comparing citizen’s attitudes toward how to respond to the COVID-19 pandemic efficiently, we may find that the culture differences between the Western and East Asian countries may have critical impacts. In East Asian countries like South Korea and Taiwan, most citizens allowed their governments to set rules or regulations that expanded administrative powers and state surveillance while limiting people’s basic rights (such as freedom of movement). The collectivism that highly valuing the public interests makes Korean and Taiwanese people comply with governmental policies, communal decisions and more willing to have administrative power expansion to deal with national emergencies. The individualism in Western countries such as the U.S. and Norway warns people the danger of power abusing. If the governmental policies seriously restrict personal freedom, people may resist and demand the government to respect their freedom and personal right (Song and Choi 2022, p. 201). The Korematsu case in World War II tells us how the different interpretation of emergency purpose could have a seriously impact upon the human right.

The dilemma between effective disaster response and democracy value protection remains at the global scale during the COVID-19 pandemic. The three countries revealed different styles of executive power expansion. Learning experiences from East Asian countries such as South Korea and Taiwan, the executive power expansion was used as powerful tool in responding to the pandemic. Taiwanese government uses emergency legislation to grant additional power to the executive branch. It helps to ensure the checks and balances between the executive and legislature branches. However, the open-ended lawmaking of the COVID-19 Special Act poses threats to the democracy. Learning from global experiences, the emergency legislation can be used to legitimate the adequate power expansion. However, such legislation has to be more carefully composed to fit democracy values and basic rights protection. The case in Norway presents how a self-disciplined democratic government could make a balance between effective disaster response and basic rights protection. Congressional oversight and the principle of legal reservation help to assure the rule of law and human rights as well (Lin et al. 2020, p.271).

 

Conclusion

The purpose of this research is trying to explore the administrative power expansion within different countries’ COVID-19 policies and how are their citizens’ attitudes toward such issue. Thus, we may have a better response to disasters and the human right protection, democracy value (holding the government in control) could be assured at the same time. The necessity of having emergency power expansion for dealing with national emergency situations is presented by the following arguments (Levinson 2006, p. 69):

A great emergency in the life of a constitutional democracy will be more easily mastered by the government if dictatorial forms are to some degree substituted for democratic, and if the executive branch is empowered to take strong action without an excess of deliberation and compromise.

Emergency power is not and should not be viewed as a panacea for dealing with policy goals and problems encountered by government officials. Governments may use emergencies to accumulate power, restrict media freedom, and crack down on political opposition and civil liberty (Coglianese and Mahboubi 2021, p. 12). Executive powers are subject to certain institutional constraints that should require a level of competency to maintain the substance of moral legitimacy and legal order (Tso and Lin 2022, p. 5). Thus, modern democratic governments must balance the competing goals of bureaucratic expertise and legislative accountability. In the U.S. and Taiwan, laws such as the Administrative Procedure Act provide clear guidance for public sector officials to implement public policies appropriately without threatening civil liberty and basic rights. South Korea and Taiwan both took a centralized approach to respond to the pandemic; although the Taiwanese President refused to use her emergency power, the Taiwanese government adopted emergency legislation to expand executive power. The U.S. and Norway took a more decentralized approach; U.S. local and central government leaders used their emergency power frequently in responding to the pandemic. The Norwegian government’s preference for protecting basic rights rather than preventing infection controlled the expansion of executive power. In order to answer the question such as “how to determine the extent to which executive power can be extended in responding to crises?” We may use “whether the extended power serves the purpose of fighting the virus and come about in an orderly process under the rule of law (Hänel 2020)” as the criterion to justify the necessary power expansion in responding to the pandemic.

Differences in these cases suggest that a country’s governance structure (top-down or bottom-up, centralized or decentralized) may play a critical role in determining its citizens’ attitudes toward the expansion of executive powers during crises. Although centralized countries such as South Korea and Taiwan responded to the pandemic effectively, other centralized countries like China and Japan or decentralized countries like the U.S. fared worse than many other countries. Thus, crisis governance ability, rather than government forms or the power structure between the central and local government, may have determined the public sector’s efficiency in responding to the pandemic (Birkland et al. 2021, p.666).

Lessons learned from the pandemic can improve our understanding of how to increase disaster response efficiency without undermining human rights. Having appropriate constraints on executive rule making is key to protecting democratic values during crises. We hope investigating countries’ experiences will provide insight into the effective deployment of administrative governance in responding to crises (Coglianese and Mahboubi 2021, pp. 11-12). Creating a robust emergency management legal framework can help ensure that crisis response adheres to democratic values and the rule of law, which will enhance society’s crisis resilience.

 

 

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