Emergency Law, Constitution and covid-19. Lights and shadows of the alarm state in the current context

Abstract

The CE 78 in its art. 116.1 contemplates the possibility of declaration by the Government of the state of alarm and Organic Law 4/1981 expressly includes the opportunity of declaration of this extraordinary regime in case of health crises such as epidemics. From a purely legislative perspective, the Spanish State, like its European neighbors, certainly has other laws that would make it possible to adopt measures similar to those that enable the state of alarm without the need to centralize decision-making in the executive. The question is whether only the declaration of a state of alarm protects the possibility of limiting the movement of people through the national territory, how and why. For its part, art. 55 EC 78 prescribes the state of exception for the suspension of rights but says nothing about the state of alarm. In this paper we will analyze how to fit in this apparent conflict of norms, and we will address the advisability of opting for one or the other, focusing on the necessary balances with the Autonomous Communities.