INSTITUTE FOR THE STUDY OF STATES OF EXCEPTION

Former Justice Minister Park Sung-jae was sentenced to 25 years in prison for his role in South Korea's failed December 2024 martial law attempt. The conviction reflects the country's continuing efforts to prosecute officials accused of abusing emergency powers to undermine constitutional order.

In this provocative essay, Stephen Vladeck argues that a defining feature of the Roberts Court’s emergency docket jurisprudence has been an effort to preserve and reinforce the Supreme Court’s institutional supremacy, often at the expense of lower courts and Congress while enabling expansive exercises of executive authority. Particularly relevant to ISSE’s work, the article raises broader questions about whether exceptional authority can become concentrated within judicial institutions as well as executive ones, and how the normalization of extraordinary power across multiple branches of government may affect democratic accountability, institutional legitimacy, and the constitutional balance of power.

Russian-installed authorities in occupied Crimea have declared a regional state of emergency following sustained Ukrainian strikes on energy infrastructure and military logistics. ISSE examines the declaration through the lens of international humanitarian law, exploring how emergency powers operate under military occupation and why this case differs fundamentally from emergencies declared by sovereign governments.

In December 2024, during a parliamentary debate marking 75 years of the Indian Constitution, Prime Minister Narendra Modi and leaders of the Bharatiya Janata Party (BJP) repeatedly invoked the 1975 Emergency as the 'darkest' moment in India's democratic history. This article argues that such condemnation does not simply distance the present from the past but enables its reactivation. Through a sustained political and symbolic return to the Emergency, the regime performs rupture even as it reproduces its techniques: the repression of dissent, the management of media, the construction of internal enemies, and the gradual erosion of democratic norms. The article re-conceptualizes this dynamic through the lens of nostalgia. Unlike familiar forms of authoritarian nostalgia that invoke a glorified past, the Indian case mobilizes a condemned and traumatic one. Nostalgia here does not operate as longing, but as a political technology: a mode of attachment that allows the past to be repudiated in discourse while its governing logics are retained in practice. In this configuration, condemnation becomes the condition of repetition. This dynamic also resonates with the logic of haunting, where unresolved violence returns not simply as memory but as an active force shaping the present. Drawing on ethnographic fieldwork, autoethnography, archival sources, and legal analysis, the article traces how the Emergency persists not only as memory but as an operational script embedded in contemporary governance. It further shows how this persistence is sustained through affective attachment, even as it is disavowed. The Emergency thus functions simultaneously as moral alibi and governing template, shaping what is widely described as an 'undeclared Emergency' in the present.

The President’s power to remove and control subordinate executive officers has sparked a constitutional debate that began in 1789 and rages on today.  Leading originalists claim that the Constitution created a “unitary executive” President whose plenary removal power affords her “exclusive control” over subordinates’ exercise of executive power.  Text assigning the President a removal power and exclusive control appears nowhere in the Constitution, however, and unitary scholars have instead relied on select historical understandings and negative inferences drawn from a supposed lack of independent regulatory structures at the Founding.  The comprehensive historical record introduced by this Article lays this debate to rest...

On June 24, 2026, Venezuela declared a nationwide state of emergency following the most destructive earthquakes to strike the country in more than a century. ISSE examines the legal authorities invoked, the distinction between disaster-related and governance emergencies, and why even well-justified emergency powers should remain proportionate, transparent, and temporary.

In this Lawfare essay, George Croner examines recent court decisions addressing presidential authority to federalize the National Guard and considers what those rulings may mean for future invocations of the Insurrection Act, arguing that courts retain a critical role in reviewing whether presidents have satisfied the statutory conditions necessary to exercise extraordinary domestic emergency powers. Particularly relevant to ISSE’s work, the article explores how judicial oversight can serve as an important safeguard against the expansion and normalization of exceptional executive authority within ordinary constitutional governance.

Following nearly thirty-eight years of martial law, Taiwan undertook a decades-long process of reforming its security institutions while continuing to confront significant external security threats. Particularly relevant to ISSE’s work, this study demonstrates how constitutional systems can restore democratic oversight, civilian control, and institutional accountability after prolonged periods of exceptional governance, offering an important perspective on the long-term process of democratic recovery from emergency rule.

Using cross national cases, Johannes Thumfart discusses internet shutdowns (ISs) within the Just Securitization Theory (JST). Thumfart denies the legitimacy of the vast majority of ISs, while sketching four exception scenarios of ISs justification.  

On June 20, 2026, Bolivia declared a 90-day nationwide state of emergency after weeks of protests and road blockades disrupted fuel supplies, transportation, and access to essential services. ISSE examines the legal authorities invoked, the role of legislative oversight, and what the declaration reveals about how democratic governments use emergency powers during periods of prolonged political and economic crisis.

Forty years after the lifting of Martial Law, Taiwan’s diplomacy exemplifies how post-authoritarian societies reshape authority through civic participation. This paper asks: How has Taiwan used public diplomacy to manage identity-based conflict and mitigate regional threat perceptions? It argues that Taiwan’s civic-embedded public diplomacy (CEPD) offers a distinct post-authoritarian model of conflict resolution in East Asia. Drawing on conceptual frameworks of threat perception and relational structure, the study reinterprets conflict resolution as the management of identity-based insecurities rather than the mediation of armed disputes. Within this framework, public diplomacy functions as a relational practice of security through which states negotiate legitimacy, authority, and identity. The framework situates Taiwan’s public diplomacy in contrast to China’s state-centric model, which reinforces hierarchical authority through a peaceful-rise narrative aimed at legitimizing its power status. Taiwan’s CEPD extends democratic participation into the international arena, involving civil society and cultural institutions as diplomatic actors. Taiwan’s CEPD thereby strengthens domestic legitimacy while managing regional tensions through the normalization of its international visibility. By connecting conflict resolution with Taiwan’s post-authoritarian transformation, it demonstrates that authority in Taiwan is evolving from state control to civic participation, offering insights into regional security and identity politics in East Asia.

Drawing on more than three decades of comparative evidence, this report argues that democratic governance strengthens national security by reinforcing institutional resilience, public trust, accountability, and effective crisis response, challenging the assumption that security requires weaker democratic constraints. Particularly relevant to ISSE’s work, the report provides an evidence-based framework for understanding how constitutional guardrails and democratic oversight contribute to long-term security while helping prevent the normalization of extraordinary executive authority.

Kate Gilbert examines how the Department of Justice’s report uses the language of ordinary bureaucracy to frame extraordinary political claims. The article raises questions central to ISSE’s work: how exceptional political logics become embedded within routine democratic governance and how expansive interpretations of Unitary Executive Theory may reshape democratic governance. 

How can the most expansive forms of the unitary executive theory function as a standing state of exception within constitutional law? ISSE puts the recent legal disputes over the revocation of security clearances and the attempted federalization of National Guard within a deeper theory of presidential power. 

Should the Supreme Court craft a new rule of constitutional law cementing presidential control over the executive branch of government? Using the case studies of recent democratic decline in Hungary, Poland, and Turkey, David M. Driesen unpacks the implications of expanding executive authority.

How has the use of presidential “czars” undermined Congress and the Constitution?  Dr. Mark J. Rozell discusses his newest book “Unitary Executive Theory: A Danger to Constitutional Government.”

Examining the Supreme Court’s consideration of the Trump v. Slaughter case, Peter J. Wallison argues that permitting presidents to remove officials from independent regulatory agencies without a cause would fundamentally alter the balance between Congress and the executive branch. Relevant to ISSE’s work, Wallison warns that subtle judicial reinterpretations of constitutional structure over time accumulate excessive concentrations of executive power.

Emergency governance, we are often told, is executive governance. Only the executive branch has the information, decisiveness, and speed to respond to crises, and so the executive is not capable of being effectively constrained by other branches. Ordinary checks and balances, then, are believed to effectively disappear during a crisis. Referring to the classic theorist of emergency rule, conventional accounts describe crisis governance as “Schmittian” and “post-Madisonian,” characterized by an unbound executive that faces few, if any, legal constraints.

This Article interrogates these propositions using evidence from how countries around the world have responded to the 2020 global pandemic. It presents data from an original and global survey of over one hundred countries to evaluate the nature of emergency powers during the pandemic. The survey captures, for each country, the legal basis for the country’s pandemic response as well as the extent to which there has been judicial or legislative oversight, and whether the central pandemic response has encountered pushback from subnational units.

This Article finds that, contrary to this conventional wisdom, courts, legislatures and subnational governments have played important roles in constraining national executives. Courts have played three different roles: (1) they have insisted on procedural integrity of invocations of emergency; (2) they have engaged in substantive review of rights restrictions, balancing rights against public health concerns; and (3) they have in some cases demanded that government take affirmative steps to combat the COVID-19 virus and its effects. Legislatures have likewise played an active role in providing oversight and, in many cases, in producing new legislation that responds to the current crisis. Subnational governments, too, have pushed back against central authorities, engaging in valuable checks and balances that shaped the appropriate response. Taken together, these findings suggest that, in the current crisis, emergency governance has been closer to the Madisonian ideal of strong checks and balances than to Schmittian accounts of an unbound executive.

This Article considers the implications of these findings for theories of emergency governance, arguing that the conventional theories are based on one particular type of crisis—a national security crisis—and therefore their insights are ill-suited to other kinds of emergencies, such as a pandemic. It develops a typology of crises and conceptualizes how different kinds of emergencies require different modes of crisis governance. Specifically, in crises like a pandemic—in which information is dispersed, the crisis is slow-moving, and local governments are needed to implement the crisis response—the executive is structurally more bound than in national security crises. This Article further defends the role of institutional checks and balances during emergencies, arguing that they are likely to produce more legitimate and reasoned responses than the executive acting alone. This is especially important in situations in which it is not clear what the optimal response is, and for which different societies may have legitimate differences over how to balance protective measures against civil liberties. For many crises, then, emergency governance should be Madisonian, not Schmittian.

Contrary to the “Decision of 1789” myth, history shows that the first Congress rejected the exclusive unitary model of the presidency—and thus the presidential removal power should be subject to more congressional control than recent Supreme Court decisions have held.

It is a bracingly simple idea.

Article II, section 1 of the U.S. Constitution vests the executive power in “a president of the United States.” Those words do not seem ambiguous. Under the Constitution, the President, and no one else, has executive power. The executive is therefore “unitary.” It follows, as the night follows the day, that Congress lacks the power to carve up the executive—to say, for example, that the Secretary of Transportation is a free agent, immune from presidential control, or that the Secretary of Commerce can maintain their job unless the President is able to establish some kind of “cause” for removing them.

On this view, the Supreme Court’s unambiguous embrace of the idea of the unitary executive in Myers v. United States was a golden moment in constitutional law, a ruling on which diverse people ought to be able to agree, and indeed one that they should enthusiastically embrace. And on this view, the Court’s messy, confusing, neologism-based, indefensible rejection of the unitary executive in Humphrey’s Executor v. Federal Trade Commission, upholding the independence of the Federal Trade Commission, was a dark stain, one of the lowest moments in the Court’s history and a prime candidate for inclusion in the “anticanon” of constitutional law. If that is so, the only serious question in the removal debate, for many decades, has been simple: Should Humphrey’s Executor be flatly overruled, or should it be confined as much as possible simply in deference to a longstanding precedent on which much of American government has been built?