This is the norm in democracies around the world. In a constitutional state of emergency, there are three questions that have to be asked. First, who declares the emergency? Second, what is the scope of the emergency powers? And third, when does the emergency end? Typically, in modern constitutional orders, we separate those three questions, because we realize that democracies at such moments of fear and provocations will likely overreact; they may not be able to harness the resources they need, and organize all the instrumentalities of government to defend themselves successfully against the threat.
If we look at our allies, what do we see at this moment? We see that the German parliament has voted for the first time to send troops abroad.
We also see that the British parliament voted on the same matter, which is significant because historically the deployment of troops in Britain was part of the prerogative power of the sovereign. After the fiasco in Iraq and the unilateralism of that period, Britain went through a period of reform in which they required parliament to be consulted on matters of sending troops overseas.
Gordon Brown called this a part of the informal constitution of Britain, since Britain does not have a written constitution. Here in the United States, we find we have no constitutional provision for a state of emergency. We have one formal provision for the suspension of the writ of habeas corpus. As it turns out, this is a very minor power in light of the powers that governments truly need in times of real emergency.
The suspension of habeas corpus may be significant for the government at any given point, but it is a secondary power compared to the mobilization that is necessary by executive leadership in a state of war. Again, we can always debate over whether we are in a state of war or not. We could also argue about whether we were really in a state of war in For this discussion, let us assume that at some point, we will have wars; there will be real emergencies; and there will be a need for institutional response.
The standard American response has been to improvise. We are very good, as a society, at making things up as we go along. It is interesting to contrast the decision of the framers not to build this flexibility into the American system, with the similar decision of the framers of the European constitutions that such flexibility was an essential feature of a constitutional order in Europe.
Perhaps it is the proximity of the continental wars. Perhaps it is the influence of thinkers like Schmitt and before him Machiavelli, who suggested that there needed to be an institutional form of response, otherwise a country would be at risk of either failing to be able to mobilize itself militarily, or correspondingly, at risk of overreacting and compromising the institutions that give it its vigor.
How do we do this in the United States? There are three parts to this consideration: Who declares it? What are the powers? What is the duration? We have to keep in mind that there has been only one constitutional order — Weimar Germany — in the last one hundred years that has tried to concentrate all these three powers in one person.
During the s, some in the U. That is clearly right. Roosevelt claimed that same authority, giving J. Edgar Hoover the powers to wiretap every individual he essentially did not like.
This was also the power asserted by Lincoln. In the s, however, the difference was that the executive, in its unitary capacity, must be able to discharge all three functions: to proclaim, to determine the duration, and to determine what steps are necessary. This process is not an American tradition, a fact that I have spent a fair amount of time over the last fifteen years writing about, and counseling the government on. In fact, the American tradition is quite distinct because we indirectly follow Machiavelli, in that the response to the state of emergency and the need for emergency powers is not an individual action, but rather an institutional one.
We can see how this process is laid out intellectually if we return to the thoughts written by Supreme Court Justice Robert Jackson in a famous set of papers that were delivered to Roosevelt. He was asked about the power of the president to embark upon foreign affairs on his own initiative as commander-in-chief; these ventures took the form of the Lend Lease Act with Britain, and the efforts to start shoring up Britain before there was ever a formal declaration of war.
In the papers, Jackson outlined how presidential power can be exercised in the United States in times of emergency in a way that foreshadowed exactly what he would eventually write in his Youngstown Steel Seizure Case opinion.
When the president acts with the support and authorization of Congress, he is allowed to authorize the budget that allows for the buildup of troops, and to authorize the use of military force. Whatever form this takes, Jackson wrote, presidential power is at its zenith. There is the gray area between these modes of power, an area in which temporal necessity and exigency demand action. This space allows us room to figure out what Congress might allow, so that we know whether we are in the domain of prohibited presidential conduct or in the domain of permitted presidential conduct.
It addresses a popular theme, namely, the continuity or discontinuity of war between the Bush administration and the Obama administration. He argues that the main difference between the Obama and the Bush administrations is that the Obama administration believed in rule of law principles while the Bush administration did not.
This, however, does not mean that we, currently under the Obama administration, still do not engage in warfare; it does not mean that we are not using drones or are not still holding people in Guantanamo. Instead, the contentious acts of war enforced under Obama have all been put before the political process, to the extent the political processes in place can handle this measure of detail and exigency. Whilst there were no coronavirus related products found to have reached UK borders on this occasion, Operation Pangea aims to tackle serious organized crime globally and the MHRA plays a big role in ensuring unlicensed medicines and medical devices are not making their way onto UK markets Medicines and Healthcare Products Regulatory Agency, a.
By May Ms. We cannot guarantee the safety or quality of these products and this poses a risk to your health. Offering to sell unauthorised medicines is against the law. In Japan advertisements that make false or exaggerated medical claims are illegal under a law that prohibits the making of misleading representations.
In addition, advertisements for uncertified products claiming to prevent or treat medical conditions are a violation of the pharmaceutical and medical device law. In March the Consumer Affairs Agency announced that sellers of products claiming prophylactic effects against COVID in online advertisements were obliged to revise their advertising.
By 11 March it had conducted emergency surveillance and identified 46 items sold by 30 companies to have breached permissible advertising rules.
What followed were multiple raids of drugstores in an attempt to suppress the sale of quack coronavirus products. By June , concerns about the phenomenon had grown and it was being theorised that entrepreneurial e-commerce site operators were taking advantage of inadequate regulatory oversight at a time when people were staying at home and were relying more heavily on e-commerce. Surveys of infringing products showed significantly elevating availability of products making false claims on sites such as Amazon.
Japan's Ministry for Health made it clear that selling products as antiviral agents for use on the body, rather than as a deodoriser or cleanser, violates pharmaceutical and medical device laws and the Tokyo Metropolitan Government, which monitors legal compliance for commercial products sold in the capital and provides guidance where necessary, provided clear messages to a similar effect.
However, research by the Nikkei Asian Review found that a significant number of e-commerce operators were circumventing the law by using suggestive language connoting anti-viral efficacy for their products Kanematsu, In Australia the major regulator of therapeutic goods and devices is the Therapeutic Goods Administration.
During the first half of it was active to inhibit the making of false representations about the efficacy of goods to prevent, treat and cure COVID For instance, on 24 March it published an advisory that:. Unfortunately, some people are taking advantage of the current situation by advertising products that claim to prevent or cure COVID Section 28 1 of the Advertising Code states that a form of a disease, condition, ailment or defect is a serious form if:.
Under section 42DLB 4 of the Act, a person contravenes a civil penalty provision if they advertise therapeutic goods for a therapeutic use without approval or permission from the TGA that are not entered in the Australian Register of Therapeutic Goods. Infractions can result in the imposition of significant fines. These provisions have been deployed in relation to spurious representations about prevention of COVID, as well as its cure or treatment. This arose from alleged contraventions relating to the advertising of hyperbaric oxygen chambers not included in the Australian Register of Therapeutic Goods.
In media reported that ten Victorians had been poisoned by MMS in the previous five years Minear, Dawson MacLeod, said that people had reported symptoms including vomiting and diarrhoea after using MMS with four having to be hospitalised. It certainly should be banned. In Australia, products that are used in the purification or treatment of drinking water, and which do not make therapeutic claims, are not considered therapeutic goods. However, based on the media reports, the TGA is concerned that some people may be using MMS to treat illnesses or for other therapeutic purposes.
Using MMS in this way will not have any therapeutic benefit and may have toxic effects. The use of MMS presents serious health risks, and can result in nausea, vomiting, diarrhoea and severe dehydration, which in some cases can result in hospitalisation. It also issued an advisory to consumers to be alert to misleading claims about MMS for the treatment, cure, prevention or alleviation of disease in humans, including COVID MMS is often marketed as water purification drops and may be offered under different names, including Miracle Mineral Supplement.
It contains a high concentration of sodium chlorite, which is a chemical used as a textile bleaching agent and disinfectant. Products containing high concentrations of sodium chlorite pose a serious health risk if consumed by humans and should be labelled with the appropriate warnings. One minute! Because you see it gets in the lungs and it does a tremendous number on the lungs, so it'd be interesting to check that.
In a number of countries, concern has been expressed about the propagation of a diverse array of forms of false information online in relation to COVID In Israel a Rishon Letzion resident allegedly sent a message in the name of the Health Ministry to his girlfriend, who had returned from Miami, in an effort to get her to self-quarantine.
He was conveyed for investigation at the cybercrimes unit of the Lahav police anti-corruption unit for four crimes, including publishing false information to cause fear and panic and transmitting false information.
He had used software to make his messages look as though they came from the Health Ministry. He sent a message to the woman to quarantine herself and another to her friend, telling her to keep her distance Beiner, A number of factors can create a conducive environment for the making of false claims and communications online in the context of a pandemic.
Anxieties and fears engendered by the pandemic can render people vulnerable, especially in an online environment. Dread of contracting and being harmed by a disease such as COVID can be exacerbated by religious associations with pestilences and plagues, literary traditions, film portrayals, and computer game tropes, as well as factors such as personality issues, educational deficits, language limitations, social isolation and disabilities. Alone and in combination such vulnerabilities are apt to be fanned by chronically anxiety-inducing media coverage.
An outcome is the potential for predatory opportunities to exploit those vulnerable to credulity and the suspension of faculties of discernment and rational evaluation of claims about prophylaxis and therapeutic efficacy. The reality of pandemic vulnerability raises the question of how most constructively public health authorities can respond in the context of the COVID pandemic to meet both conspiracy theories and therapeutic misrepresentations.
Recent responses by governments in a number of countries, including the United States, the United Kingdom, Japan and Australia, have provided a useful perspective. Firstly, health messaging needs to be communicated in a calm and straightforward tone which does not exacerbate anxieties and irrational fears, but rather encourages prudent care-taking conduct.
Secondly, there needs to be a continuing flow of medico-scientifically evidence-based education which works toward disabusing members of the community of misunderstandings, fears and fallacies which otherwise may gain popular traction and exacerbate paranoid and anxiety pathologies, as well as render people more prone to be victimised.
Thirdly, there is a need for governments to be assertive in taking preventative and deterrent action against those who are misusing the COVID era to enrich themselves opportunistically or to take advantage of those who lack the capacity to be discerning about false claims of capacity to prevent, treat, or cure the disease.
For good reason, the traditional public health approach to such misrepresentations is to provide a clear warning initially to those responsible for such misinformation in the form of what in the United States are called cease and desist orders. However, where there is non-compliance in face of such governmental communications, robust legal action needs to be initiated with condign imposition of penalties to deter and punish unethical quackery during a pandemic.
Patricia Molloy, Dr. David List, Dr. Peter Molloy, and Lloyd Freckelton. National Center for Biotechnology Information , U. Int J Law Psychiatry.
Published online Jul Author information Article notes Copyright and License information Disclaimer. Elsevier hereby grants permission to make all its COVIDrelated research that is available on the COVID resource centre - including this research content - immediately available in PubMed Central and other publicly funded repositories, such as the WHO COVID database with rights for unrestricted research re-use and analyses in any form or by any means with acknowledgement of the original source.
This article has been cited by other articles in PMC. Abstract Fear, anxiety and even paranoia can proliferate during a pandemic. Introduction When pandemics manifest, novel and sometimes unscientific ideas proliferate as to how they can be prevented, treated and cured.
As Sontag 41—42 observed in Illness as Metaphor : Nothing is more punitive than to give a disease a meaning — that meaning being invariably a moralistic one. Thucydides recounted the fearfulness of the plague in Athens between and BCE and the breakdown of law and order: there was no previous record of so great a pestilence and destruction of human life.
As McGinness — has observed: a legal decision supporting that type of argument would only serve to encourage the telling of even more outrageous untruths. The editors of the Lancet exulted: We are glad to learn that in spite of the ingenuity of their legal advisers the defendants have been held liable to make good their promise. The Spanish Flu The Spanish Flu is believed to have infected close to one third of persons on the planet between and , with estimates that it killed between 60 and million persons Kent, ; Spinney, , Honigsbaum, As Spinney records: Witch doctors in the hills of India moulded human figures out of flour and water and waved them over the sick to lure out evil spirits.
Catharine Arnold ch 12 has documented how willingness to try anything during the Spanish Flu era was accompanied by a proliferation of advertisements in the West for influenza-related remedies: From the Times of London to the Washington Post , page after page was filled with dozens of advertisements for preventive measures and over-the-counter remedies.
Various forms of alcohol too were promoted as remedies for influenza: In Denmark and Canada, alcohol was only available by prescription, while in Poland brandy was regarded as highly medicinal. Coronavirus Quackery Lee has recorded how during previous coronaviruses quackery and folk remedies have proliferated. Nayak has described the rise of one form of alternative remedy purveyors in India during the COVID crisis: The sugar-pill quacks are having their moment in the sun.
They advise you to: 1. Drink warm water throughout the day. Practice yogasana, pranayama and meditation for three minutes a day. Consume spices such as zeera cumin , coriander, turmeric and garlic. Consumer protection regulation Two strategies have been deployed internationally to counter gullibility and lack of discernment in the community arising out of fears of COVID provision of scientifically based health information, such as described above from the World Health Organization, and the invocation of a variety of forms of consumer protection laws developed since the time of the Spanish Flu to prevent the gullible and the vulnerable from being duped by advertising of products or devices which have not been rigorously tested and demonstrated to be efficacious, hope, rumour and expectation notwithstanding.
Japanese initiatives In Japan advertisements that make false or exaggerated medical claims are illegal under a law that prohibits the making of misleading representations. Australian initiatives In Australia the major regulator of therapeutic goods and devices is the Therapeutic Goods Administration.
For instance, on 24 March it published an advisory that: Unfortunately, some people are taking advantage of the current situation by advertising products that claim to prevent or cure COVID Section 28 1 of the Advertising Code states that a form of a disease, condition, ailment or defect is a serious form if: a.
False online communications: legal responses In a number of countries, concern has been expressed about the propagation of a diverse array of forms of false information online in relation to COVID Conclusions A number of factors can create a conducive environment for the making of false claims and communications online in the context of a pandemic. References Anderson I. Why the 5G coronavirus conspiracy theory is false — video explainer.
The Guardian. New York attorney-general to televangelist: Stop touting product as coronavirus cure. Arnold C. Pandemic The story of the deadliest influenza in history. The epic battle against coronavirus misinformation and conspiracy theories. Fear of Contagion: A response to stress? Advances in Nursing Science. Tractors and Vodka will cure belarus of the coronaviris, says leader.
The Times. Passover and plague. Perspectives in Biology and Medicine. Reuters Institute. Nursing clio. My wish: Help me stop pandemics. Australian institute of criminology statistical bulletin Christie M. The black death and the burning of Jews. Carbolic smoke ball: fake or cure?
BBC News. The Medieval Globe. Cooke J. The Independent. Fear can spread from person to person faster than the coronavirus — But there are ways to slow it down. Dehority W. Infectious disease outbreaks, pandemics, and hollywood — hope and fear across a century of cinema. Journal of the American Medical Association. The Lancet. University of Pennsylvania Press; Pittsburgh: After the black death: Plague and commemoration among Iberian Jews. Finnan D. Internet Pharmacy Letters.
Penguin; New York: The coming plague: Newly emerging diseases in a world out of balance. Hachette; New York: Betrayal of trust: The collapse of global public health. Impact of coronavirus on EAPs: Managing the fear of communicable disease. Journal of Employee Assistance.
As coronavirus spreads around the world, so too do the quack cures 16 April The Guardian. Business Insider Australia. Why are Africa's Coronaviurus successes being overlooked?
Honigsbaum M. Palgrave Macmillan; London: Living with Enza: The forgotten story of Britain and the great flu epidemic of Regulating the pandemic: Flu, stoicism and the Northcliffe press. Medical History. Bloomsbury; London: A history of the great influenza pandemics: Death, panic and hysteria, — Psychiatry of pandemics: A mental health response to infection outbreak. Iggulden T. Blood of allegedly recovered coronavirus patients being offered on dark web as a passive vaccine.
ABC News. Standing only a few inches over five-feet tall, scrawny, suffering from a combination of poor physical health and hypochondria, and painfully awkward in any public forum, Madison nevertheless possessed a combination of intellect, energy, and political savvy that would mobilize the effort to create an entirely new form of continental union.
The Pennsylvania and Virginia delegates then met frequently during the days leading up to May Together these men would forge a radical new plan, the Virginia Plan, which would shape the course of events during that summer of By seizing the initiative, this small group of nationalist-minded politicians was able to set the terms of debate during the initial stages of the Convention—gearing the discussion toward not whether , but how —a vastly strengthened continental government would be constructed.
On May 28, , the state delegations unanimously agreed to a proposal that would prove invaluable in allowing men like Madison, Wilson, and Morris to move their plan forward.
But the rule of secrecy gave to delegates the freedom to disagree, sometimes vehemently, on important issues, and to do so without the posturing and pandering to public opinion that so often marks political debate today.
And it also gave delegates the freedom to change their minds; on many occasion, after an evening of convivial entertainment with one another, the delegates would return the following morning or even the following week or month, and find ways to reach agreement on issues that had previously divided them.
The rule of secrecy helped make the Constitutional Convention a civil and deliberative body, rather than a partisan one. It helped make compromise an attribute of statesmanship rather than a sign of weakness. It also became immediately clear that, however bold and innovative the plan may have been, there were many delegates in the room who had grave misgivings about some aspects of it. For nearly four months, the delegates attempted to work through, and resolve, their disagreements.
The most divisive of those issues—those involving the apportionment of representation in the national legislature, the powers and mode of election of the chief executive, and the place of the institution of slavery in the new continental body politic—would change in fundamental ways the shape of the document that would eventually emerge on September 17, The delegates haggled over how to apportion representation in the legislature off and on for more than six weeks between May 30 and July Those from large, populous states such as Virginia and Pennsylvania—supporters of the Virginia Plan—argued that representation in both houses of the proposed new congress should be based on population, while those from smaller states such as New Jersey and Delaware—supporters of the New Jersey Plan—argued for equal representation for each state.
The compromise that eventually emerged, one championed most energetically by the delegates from Connecticut, was obvious: representation in the House of Representatives would be apportioned according to population, with each state receiving equal representation in the Senate.
In the final vote on the so-called Connecticut Compromise on July 16, five states supported the proposal; four opposed, including Virginia and Pennsylvania; and one state—Massachusetts—was divided. James Madison and many of his nationalist colleagues were disconsolate, convinced that the compromise would destroy the very character of the national government they hoped to create. In The Federalist No. In this, as in so many areas, the so-called original meaning of the Constitution was not at all self-evident— even to the Framers of the Constitution themselves.
The debate among the delegates over the nature of the American presidency was more high- toned and more protracted than that over representation in the Congress. They urged their fellow delegates to give the president an absolute veto over congressional legislation.
In the end, it was compromise that once again won the day—the delegates agreed to give the President a limited veto power, but one which could be over-ridden by a vote of two-thirds of both houses of Congress.
Most of the delegates initially thought that the executive should be elected by the national legislature; still others thought the executive should be elected by the state legislatures or even by the governors of the states.
James Wilson was virtually the only delegate who proposed direct election of the president by the people. He believed that it was only through some form of popular election that the executive branch could be given both energy and independence.
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