Legislative Authority in a State of Health Emergency (LegEmerge)

The saying that a state of emergency is the moment of the executive has, at least in Germany, become part of the public domain. Indeed, governments and administrations in Germany and around the world seem to be the decisive actors taking far-reaching decisions which aim at the control of the COVID-19-pandemic and, concomitantly, intrude into basic rights to a historically unparalleled extent. This provokes the question of what should be the legislator's role, especially within a parliamentarian system of democratic government as established under the German constitution. Therefore, this project aims at analyzing and defining the role of the legislator in a pandemic-induced state of health emergency. It will identify and evaluate the existing constitutional and statutory law framework governing a state of health emergency both on the federal and state level. In particular, the project will examine the constitutional limits to delegations of legislative powers to, and of authorizations conferred upon, the executive to take pandemic control measures. In addition, the applicability of the precautionary principle as well as its potential to justify the strict and sweeping measures of pandemic control will be investigated. Moreover, the project will elaborate on a constitution-based guidance for the legislator to enact rules framing triage decisions by clinicians. In light of these analyses, the project will propose options for a coherent and exhaustive legal framework for a state of health emergency as has been caused by the COVID-19 pandemic.