Emergency Weather Powers Are Not a Free Pass to Rule by Guesswork

The scene before us is strange even to one long acquainted with tempests and bad air. Smoke from distant fires in Ontario and Minnesota has spread across much of a continent, so that whole regions lie under “dangerous” or “unhealthy” skies. At the same time, thunderstorms strong enough to promise relief from the smoke bring fresh perils of flash flooding and high winds. Meteorologists say they cannot yet tell precisely where the smoke will drift next, only that some parts of the mid-Atlantic and northeast may see improvement as storms pass, while the midwest and Great Lakes continue to suffer poor air. It is a confused prospect for those who must venture out, and for those who command them to stay in.

In such a moment authorities issue air quality alerts, flood warnings, and assurances that a World Cup final may proceed because conditions at one field are measured every few minutes. Here is power over civil interests plainly exercised; when a man is told it is unsafe to work, travel, or gather, his life, health, and liberty are all in question. Political power, as I argued in the Second Treatise of Government, is only a right of making and enforcing laws for the public good. The name of safety cannot enlarge this right into a licence to command without explanation. Men are not born subjects to meteorologists and emergency managers. They are, by nature, free, equal, and independent; if they obey in such cases, it must be because reason persuades them that obedience will preserve their lives, liberties, and estates.

It will be said that warnings, unlike quarantines or forcible confinement, do not compel but only advise; and that no man’s liberty is infringed by the publication of danger. This is true so far as the matter stops at bare information. But in practice such alerts are often linked to closures of workplaces, restrictions on movement, or intense pressure on the hesitant, especially where employers, schools, and other bodies treat them as near-law. When air is declared broadly “dangerous”, or whole areas are set under “flash flood warnings”, and yet the grounds for those declarations are not made plain in terms that ordinary understandings can weigh, the supposed advice approaches de facto command. For power that shapes men’s options, though it use no soldier, may still touch their liberty quite closely.

In all this there is, I grant, a necessary place for prerogative. In the Second Treatise I described prerogative as the power to act for the public good without a prior rule, and sometimes even contrary to the letter of the law, when strict adherence would cost the people their preservation. Sudden floods and drifting smoke, whose course men cannot perfectly foresee, require quick warnings that no distant legislature can script in advance. To forbid such discretion would be to sacrifice lives at the altar of forms. Yet prerogative is not a standing excuse; it is a temporary trust. It is tolerable only while those subject to it can see, with their own eyes and understandings, that it is honestly aimed at their safety and remains open to correction.

Two things are therefore required if these present measures are to keep the name of lawful prerogative and not slide into usurpation. First, those who issue warnings must give reasons, not oracles: clear accounts of what is known of the smoke, the floods, and the remaining uncertainties, in language fit for laymen, not only for their own craft. We are told, for example, that smoke will likely clear from one venue in time for a match while lingering dangerously elsewhere; if the former judgment is detailed and public, but the latter remains a vague alarm, men may reasonably suspect that prestige and spectacle, rather than equal concern for all lives, guide the hand that warns. Secondly, the authority to warn must be plainly revocable and reviewable; those who suffer from needless closures or from failures to warn in time must have some impartial judge to hear their case, and not be sent back always to the same office that erred as judge in its own cause.

Some will object that in the face of such hazards, consent must be presumed and scrutiny postponed; that it is better to over-warn and over-close than to risk one life lost. Here the law of nature must be remembered in its fullness. Reason teaches that no one ought to harm another in his life, health, liberty, or possessions. To protect life is a duty; but to ruin livelihoods or crowd men into unhealthy spaces on the basis of opaque or capricious warnings is also a kind of harm. The people may well consent to bear short, well-explained restraints to weather an extraordinary season of smoke and storms. They do not thereby grant a blank cheque for future emergencies, nor bind themselves to approve whatever a forecasting office may later command in the name of “safety”.

If, over time, there should appear in this domain what I once called a long train of abuses—warnings issued more to shield authorities from blame than to guard the public, events spared while workers are not, decisions never frankly justified nor afterward examined—then the power in question would stand exposed as exceeding the trust reposed in it. The remedy in the last resort is always the same: power, by forfeiting its claim to rule for the common good, returns to the people, who remain judges whether their preservation is better served by continued obedience or by reform. Emergency does not cancel that right; it only makes the need for honest, accountable prudence more urgent. The weather may be uncertain, but the limits of rightful power are not.