Authored by Ryan McMaken via The Mises Institute,
This month marks the fourth anniversary of one of the most disastrous assaults on human rights in American history. It was on March 16, 2020 that the President Trump issued “guidelines” for “15 days to slow the spread” which stated that “Governors of states with evidence of community transmission should close schools in affected and surrounding areas.”
The administration instructed all members of the public to “listen to and follow the directions of your state and local authorities.”
It was at this time that an American president, for the first time in American history, introduced the idea that it was possible—and perfectly legal—for government institutions to “close down” the economy by forcibly shutting, en masse, countless businesses, schools, and churches. Trump stated repeatedly in press conferences that it was up to government officials to decide “if we open up.” It quickly became standard procedure for health bureaucrats, governors, and media figures to casually speak of “closing the economy” or “opening up” as if we were talking about a coffee shop deciding on closing time.
Meanwhile, across the country, local law enforcement officers willingly worked to arrest or harass business owners, worshipers at church, soccer moms at the park, and anyone else with the temerity to venture outdoors for activities not approved by the ruling class.
The small minority of Americans that remained committed to human rights and private property soon discovered how powerless they really are. Many dissenters were dismayed by a lack of action from the courts, and how elected officials were apparently unwilling or unable to rein in the vast new powers of “health” officials. Was there nothing that could limit the state’s power? This was confusing for many people because many have been (and remain) enamored of the idea that written constitutions limit state power when it matters most.
Many dissenters learned a valuable lesson from the experience, however: during the Covid Panic of 2020 and 2021, it became abundantly clear how little constitutional government and the so-called “rule of law” actually limit a regime’s power in times of perceived emergency. It is during emergencies, in fact, when we learn who really holds political power, and how ineffective are constitutional measures designed to limit it.
True Power Is Revealed by Emergencies
As the Covid Panic revealed to us, the real, de facto ruling class is the executive state which effortlessly ruled by decree during the covid crisis. This ruling clique—an oligarchy of governors, academic “experts,” media billionaires, and countless nameless and faceless unelected bureaucrats—has illustrated in recent years how irrelevant elected lawmakers can be to the use of political power.
This problem is not new, nor have scholars only recently noticed it. Libertarian political scientists Carlo Lottieri and Marco Bassani have noted that the problem of emergency power has long been a concern for radical free-market liberals, especially those of the Italian school of elitism. These scholars recognized that political power in times of emergencies is exercised by individual persons who are unconcerned with abstract limits on their power. This fact is fundamentally at odds with the abstractions of the constitutionalists who imagine that the state monopoly on coercion can be rendered relatively harmless via written constitutions. That is, the constitutionalists believe the written law will somehow restrain the ruling class, even in emergencies.
In practice, however, this doesn’t happen. Lottieri and Bassani explain what the constitutionalists get wrong:
The constitutionalist claim to justify the State’s monopoly of violence has been challenged directly by the radical libertarian tradition (Molinari) and by individualist anarchists (such as Lysander Spooner). However, an important role in bringing the modern State into perspective has also been played by European political realism and, in particular, by Carl Schmitt and the Italian elitist scholars (Gaetano Mosca and Vilfredo Pareto).
Schmitt’s importance rests very much on his intuition that in every State there is first a political dimension and then a decision, which cannot be obscured by the so-called “impersonality” of law and the “super-individuality” of orders. Beyond the apparent abstraction of the State … Schmitt uncovered choices, interests, and, in short, people that impose their will on others.
The constitutional thought of classical and contemporary liberalism has constantly tried to neutralize politics, but it has failed. … [T]he real sovereign is the political group that has the final decision about the critical situation, in the state of emergency. The locus of sovereignty thus becomes the political entity (which in our time is the State), and the decision on the state of emergency is the ultimate test of sovereignty. Legal positivism tried hard to refute the importance of this notion, but critical decision making is paramount in the development of human relations.
Lottieri further notes that the fantasy of a neutral regime constrained by mere legal barriers is “simply impossible.” Yet, the naive view has often made the state appear less dangerous and has convinced many to accept the state’s monopoly of violence.
This is illustrated in the fact that the efforts to implement lockdowns in the United States were thoroughly bipartisan. Opposition to lockdowns was virtually nonexistent within regime institutions themselves. The Trump administration, the CDC, the legacy media, social media, state medical boards, state governors, and local health officials were all more or less in lockstep in March and April 2020. Resistance came overwhelmingly from non-elites; from ordinary people who were being persecuted by state agents—i.e., law enforcement officers and health officials—for opening businesses and attending church. It was only after non-elite political opposition began to look uncontrollable that some state institutions began to relent.
Yet, even as some pockets of resistance appeared, national elites remained virtually untouched and the federally declared “state of emergency” persisted until May 2023.
Perhaps the most important tool of the elites during all this—the monopoly power over the creation of money—was strengthened to levels never before seen. In a normal world, the power to destroy countless Americans’ livelihoods by decree would have faced fierce and immediate—and perhaps violent—opposition. The elite’s ability to create money via the central bank, however, essentially provided a means of bribing the public into compliance. It worked, and much of the public still doesn’t even make a connection between this ruse and the current impoverishment of the public via price inflation.
The Regime Is Still in Control
Now, nearly four years later, the regime and its elites have faced no real reckoning over their nearly untrammeled attacks on human rights and private property. Federal courts have been extremely cautious to avoid any ruling that might significantly reduce the emergency powers of the regime. The courts have taken exception with how the regime executed certain policies, such as when the court struck down the administration’s attempt to impose a nationwide vaccine mandate via OSHA. Yet, most challenges to government mandates were left unanswered because legal challenges were declared moot as the regime ended its mandates—for the moment. As a result, these powers will remain available to the regime the next time it decides to declare an emergency.
Moreover, in times of crisis, regimes can justify virtually anything using a complex legal system in which interpretations are extremely flexible. We see this, for example, in the federal moratorium on evictions which relied on paper-thin legal claims. Whether or not the legal claims seem plausible to a normal person—i.e., a person outside the ruling class—is immaterial. What matters is that the ruling regime is able to twist legal meanings and interpretations to its own purposes to essentially rule by decree during the crisis.
Unfortunately, we find very few of the powers seized and exercised during this period are convincingly curtailed. Most of these powers—especially those of the central bank—will return in force during the next “emergency,” even if the regime has to rely on slightly different legal claims and methods.
The Regime Will Take Whatever Power It Can
The regime’s efforts to exercise vast new powers were supercharged by the fact that the public offered so little resistance. The “free money” from the central bank helped in this, but the bribery was only part of the equation. The unfortunate fact is much of the public accepted the claims of the elite “experts” that the lockdowns and mandates were all perfectly legitimate and fully necessary.
During the Covid Panic, we saw Ludwig von Mises’s views on political power played out in real time. Mises understood that political power is not limited by words on parchment or legal theories. Power is limited only by ideological resistance to the state that then manifests as practical political opposition. Mises writes:
Thus, there has never been a political power that voluntarily desisted from impeding the free development and operation of the institution of private ownership of the means of production. Governments tolerate private property when they are compelled to do so, but they do not acknowledge it voluntarily in recognition of its necessity. Even liberal politicians, on gaining power, have usually relegated their liberal principles more or less to the background. The tendency to impose oppressive restraints on private property, to abuse political power, and to refuse to respect or recognize any free sphere outside or beyond the dominion of the state is too deeply ingrained in the mentality of those who control the governmental apparatus of compulsion and coercion for them ever to be able to resist it voluntarily. A liberal government is a contradictio in adjecto. Governments must be forced into adopting liberalism by the power of the unanimous opinion of the people; that they could voluntarily become liberal is not to be expected.
We have every reason to believe that federal, state, and local covid-related emergency powers would have been exercised with far greater enthusiasm by the regime had it not been for the resistance of the vocal minority.
If we want to know what really limited the regime’s power during the Covid Panic, we must look to the “do-not-comply” activists who were willing to lose jobs and social status as a result of their opposition to the regime. It was primarily the people portrayed as crazed malcontents by the regime who stood between the regime and the full use of its power. The US constitution and the Bill of Rights played virtually no role in limiting the state’s power during the emergency. The naive view of constitutionalism would have us believe that everything worked as designed as the “balance of powers” maintained a rule of law. That’s not what happened. What remains of freedom today was saved by nothing other than the limited amount of public resistance that made the regime think twice about extending indefinitely its experiment in tyranny.
This partial victory does not mean the regime has been defeated, of course. The elites have been slightly chastened, but they have kept most of their powder dry and simply wait for the next emergency during which these powers can again be exercised with at least as much vigor.
