Executive Underreach in the Response to COVID-19
Daniel Longhi Guimarães 
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Here we are, over one year later: trapped inside as news of daily deaths keeps breaching the barricade around our isolated lives. How did it come to this? As we mourn COVID-19’s first anniversary, the history of this pandemic continues to be written, and most believe it is a tale of many things done wrong. There is, however, a point to be made in suggesting that perhaps this history is better defined by omission — defined by everything that wasn’t done by those in power when it mattered the most.
Professors David Pozen and Kim Lane Scheppele made this case in their recently published essay “Executive Underreach, in Pandemics and Otherwise.” They borrowed from the idea of “executive overreach,” where leaders, especially in emergencies, claim special powers that are then used to curb civil liberties and subvert the rule of law. The authors contend that during the COVID-19 pandemic, the opposite phenomenon is occurring: some heads of state are exerting executive underreach.
Pozen and Scheppele define executive underreach as the “willful failure to address a significant public problem that the executive is legally and functionally equipped (though not necessarily legally required) to address” (Pozen & Scheppele 2020, p. 609). They concede that this definition is brimming with ambiguities. After all, some policies will inevitably fail, and leaders holding executive power should have some leeway for trying out innovative approaches that may backfire, especially in uncertain circumstances. No COVID-19 counterplan was perfect. The underreacher, though, “sees a significant threat coming, has access to information about what might mitigate or avert the threat along with the power to set a potentially effective plan in motion, and refuses to pursue such a plan” (ibid., p. 610).
However diligently the authors may explain this concept, there is no better way to understand executive underreach than to look at the most notorious underreachers, Donald Trump and Jair Bolsonaro — not coincidentally, the heads of the two states with the most deaths by COVID-19 so far.
Ex-President Trump’s anemic response to the pandemic was comprehensively reported worldwide. Anecdotes abound depicting Trump’s bad taste, which bordered criminality. By February 27, on the eve of the first recorded death in the US, many hailed his optimism as he asserted that “it’s going to disappear. One day, like a miracle, it will disappear.” 120,000 deaths later, on June 20, he called COVID-19 the “kung flu.” As the dead were 200,000 strong and counting, on September 21, he very publicly affirmed that “[the virus] affects virtually nobody. It’s an amazing thing. Open your schools, everybody, open your schools.“
An underreacher is not defined by his or her tawdry demeanor, however. Most times, the garishness is designed to distract the public eye from inaction. Since the beginning of the pandemic, “Trump minimized the danger posed by the virus, declined to order the Centers for Disease Control and Prevention to prioritize it, ignored a National Security Council playbook on fighting infectious diseases, and failed to ensure adequate production and distribution of test kits, ventilators, or protective medical gear” (ibid., p. 613).
Trump’s presidency has come and gone though, and the US has been rolling out a competent vaccination campaign with currently over 4 million doses administered per day. There is even a point to be made that Trump may have helped create some of the conditions for President Biden’s later robust response in the waning weeks of his presidency. Let’s examine, then, COVID-19’s present hotbed: a country that, just weeks ago, set a daily death record of 3,251 people, and has a total of over 300,000 deaths.
In 2017, then-presidential candidate Jair Bolsonaro was asked about some medical treatment regulation then under the spotlight. “I’m an Army captain”, he declared. “Killing is my specialty, not treating.” In hindsight, few would disagree. Article 196 of Brazil’s Constitution asserts: “Health is a right of all and a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards.” Therefore, when facing history’s greatest sanitary emergency, the president should at least maintain a stable political environment in which competent professionals could tackle the issue. Not Bolsonaro, though: As of now, Brazil watches as the fourth Health Minister during the pandemic takes office. Marcelo Queiroga, the latest pick, took office asserting he will “enforce the government’s policies.”
But what policies? So far, as it often happens with underreachers, it is easier to talk about neglect and missed opportunities. Bolsonaro never hesitated to express his skepticism about lockdown measures. In March 2020, he rushed to national television to urge state administrations to end restrictive isolation measures to counter what he then called “a little flu.” This meant that state governors effectively enforced lockdown initiatives in a disjointed manner without the presidency’s leadership to oversee a coherent approach. As the Human Rights Watch 2021 Global Report puts it, Bolsonaro “tried to sabotage public health measures aimed at curbing the spread of Covid-19, but the Supreme Court, Congress, and governors upheld policies to protect Brazilians from the disease.“
But nothing illustrates the dreadful consequences of executive underreach as aptly as Bolsonaro’s vaccination debacle. In October 2020, when the first generation of COVID-19 vaccines approached their final round of tests, São Paulo’s governor, João Doria, a Bolsonaro ex-ally turned rival, took an early lead in acquiring the CoronaVac vaccine, which is produced in partnership with the São Paulo-based Instituto Butantan. The president promptly said that his government would not “buy the Chinese vaccine,” and that the Brazilian people would be “nobody’s lab rat.” No concrete alternatives were presented though, except for some vague agreement for the Oxford-AstraZeneca vaccine. Now it has been revealed that the government received two successive offers from Pfizer, which remain unanswered. Not only that, but Bolsonaro repeatedly discredited the vaccination’s efficiency. On one occasion, he stated: “I had the best vaccine — the virus itself. No collateral effects.” Time passed, the states tentatively started vaccinating, and the president kept offering little more than rude words and shrugging shoulders. As a result, as of April 19, less than 8% of the population had been vaccinated, and the death toll storms on with an unshakable pace.
The consequences of underreach are manifold. Body counts and hospital occupancy rates are the most visible ones. Some externalities, on the other hand, run deep. Pozen and Scheppele believe that “executive underreach may be self-perpetuating, insofar as it proliferates or deepens the set of public problems that will eventually require an expensive response or conditions voters to expect less from their officials.” It may foster “distrust of government, diminish state capacity, exacerbate inequality, and stimulate dangerous or inefficient forms of self-help by private actors” (ibid., p. 614). In other words, it makes constituents expect less of their government at the same time that the respective political leaders become more comfortable with this distrust. Also, executives could leverage this situation to make a U-turn to an autocratic, overreach approach “by creating conditions of precarity or unrest that will then be addressed through more legally questionable means” (ibid., p. 615).
So, how do you deal with a president whose worst sins are covered by the furtive veil of omission? With a leader best defined by everything he should have done and chose not to? In Donald Trump’s case, the will of the electorate resulted in the election of a new leader with time for an adequate COVID-19 response. Bolsonaro is proving to be a trickier issue. The next presidential elections are not until the end of 2022, and it is increasingly evident that Brazil cannot afford to wait that long. His impeachment remains unlikely as he maintains a 30% approval rate, and Congressmembers are unwilling to unify against him. Pozen and Scheppele suggest that international initiatives could be put forward to name and shame underreach “when it threatens severe harm to health, security, or other basic goods” (ibid., p. 617). However sensible, this hardly helps the case in point. As this pandemic’s story remains to be written, there are few certainties but this: If left unbothered, the underreacher will gladly watch as the consequences of his inaction unravel.
Pozen, David E., and Kim Lane Scheppele. 2020. “Executive Underreach, in Pandemics and Otherwise.” American Journal of International Law 114: 608-617. http://dx.doi.org/10.2139/ssrn.3649816.
