The Executives’ Pandemic

Abstract: This thesis examines the exercise of emergency powers in response to the Covid-19 pandemic. The two cases of Germany and Spain applied disparate models of emergency powers while sharing common traits of federal decentralized power structures. While Spain initially centralized powers within the Spanish Government, Germany empowered the executives of the Länder and the Federal Ministry of Health. Within both countries the executive took extreme precedence, but factors such as the continuous legitimization of actions by means of the supranational WHO downplay the sovereign nature of the executive. The legislature was pacified throughout the first year of the pandemic, the frame of study, and acted to undermine its own authority. The judiciary while active suffered from its temporal role as retrospective when faced with an emergency requiring immediate action, and was further undermined by the vague legal basis of the emergency powers and the unknown nature of the threat that Covid-19 posed. These factors meant that the executive lacked scrutiny by the two other institutionally designed checks on power. Restrictions encroached so far on rights to autonomy that they were ruled unconstitutional in Spain, in Germany the third amendment to the IPA which aimed to specify the legal basis for restrictions, resulted in more stringent restrictions in the third phase of the pandemic.