INSTITUTE FOR THE STUDY OF STATES OF EXCEPTION

On February 20, 2026, the Supreme Court issued its decision in the consolidated tariffs cases, Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc., holding 6–3 that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. Writing for the majority, Chief Justice Roberts concluded that although IEEPA grants broad authority to regulate economic transactions during declared national emergencies, it does not include the distinct power to levy tariffs or duties — authorities constitutionally assigned to Congress under Article I. The Court further held that the Major Questions Doctrine applies even in the context of emergency statutes addressing foreign affairs, and that Congress must speak clearly if it intends to delegate tariff-setting authority of such vast economic and political significance. Because IEEPA contains no explicit reference to tariffs or duties, the challenged “Liberation Day” and reciprocal tariffs were deemed unlawful.

The Supreme Court’s decision in Learning Resources, Inc. v. Trump blocks the use of the International Emergency Economic Powers Act to impose tariffs, drawing an important statutory boundary around executive emergency authority. But the ruling turns on textual limits, not on scrutiny of the underlying emergency itself. As a result, while the Court prevented one expansion of presidential power, it left intact the broader architecture through which emergency declarations can accumulate authority over time. The case illustrates a central tension in contemporary governance: judicial intervention may constrain specific statutory overreach, even as the structural normalization of emergency power continues.

Former South Korean president Yoon Suk Yeol has been sentenced to life imprisonment after the Seoul Central District Court found him guilty of leading an insurrection stemming from his December 3, 2024 declaration of martial law. The court concluded that his deployment of military and police forces against the National Assembly constituted an unlawful attempt to subvert the constitutional order, citing evidence that troops were ordered to blockade parliament and detain senior political leaders. Prosecutors had sought the death penalty, but the court imposed life imprisonment with hard labor, emphasizing the gravity of the societal and institutional harm caused. Several senior security and defense officials were also convicted and received lengthy prison terms. The ruling marks one of the most consequential judicial responses to executive overreach in South Korea’s democratic history, with additional legislative efforts underway to bar future presidential pardons for insurrection.

In January 2026, Guatemala invoked a 30-day state of siege after prison riots and coordinated attacks linked to the transnational gang Barrio 18 left 11 police officers dead. Ratified by Congress, the measure temporarily expanded police and military authority and was followed by a nationwide state of prevention once the siege expired. Government officials reported substantial security gains, including arrests, major drug seizures, and reductions in extortion and homicide. This analysis considers the episode through the framework of the state of exception, examining how constitutional democracies authorize extraordinary powers in moments of crisis and how those powers, even when formally time-bound, illuminate the delicate line between safeguarding public order and redefining the contours of ordinary law.

On February 20, the Supreme Court ruled that the International Emergency Economic Powers Act, known as IEEPA, does not authorize President Trump’s sweeping tariffs. In Learning Resources, Inc. v. Trump, and the consolidated case, the Court held that the statute does not grant the President the power to impose tariffs under a declaration of economic emergency. In this podcast episode from the National Constitution Center, we explore what the Court held, why the Justices disagreed about the reasoning, and what this decision might tell us about the future of presidential emergency power. To help us explore these questions are two leading Court watchers and constitutional experts, Zachary Shemtob of SCOTUSblog and Ilya Somin of the George Mason University. Julie Silverbrook, vice president of civic education of the National Constitution Center, moderates.

The political rhetoric surrounding the Horn of Africa is perpetually framed through narratives of crisis, tragedy and emergency. These labels, rather than simply being used to describe instability, function as tools of governance to normalise dysfunction and entrench cycles of dependency. Drawing on postcolonial frameworks, the discourse interrogates how such crisis narratives obscure and ignore structural issues. Further, this sustains and promotes external authority, often rooted in colonial narratives of the region. The exploration of case studies, Somalia and South Sudan, highlighting how international interventions, often framed as peacebuilding or humanitarian efforts, reinforce the very ‘crisis’ it aims to address. The solution to decolonise this paradigm created by western interventionist economies lies in alternatives grounded in African epistemologies of governance that centre local sovereignty. In doing so, reimagining governance beyond ‘emergency’, towards sustainable political autonomy, rooted in localised political power, emerges as the primary, if not only, viable solution.

The Supreme Court’s consideration of Trump v. Slaughter raises more than a dispute over agency removal protections. In the accompanying Lawfare article, Michael R. Dreeben examines whether overruling Humphrey’s Executor might be counterbalanced by renewed limits on congressional delegation. ISSE’s analysis builds on that doctrinal discussion to explore a related structural question: how weakening agency independence could reshape the architecture of emergency governance. Together, the pieces illuminate how shifts in administrative design may alter not only separation-of-powers doctrine, but also the institutional channels through which exceptional authority is exercised.

In this February 18, 2026, podcast discussion with Adam Kinzinger entitled “Former CIA Ops Chief on Ukraine, Munich, and the U.S. Europe Shift,” ISSE’s Founder and Governing Board Chair Ed Bogan talks about a range of topics including what he saw and heard at the 2026 Munich Security Conference, the current trajectory for Ukraine in its fight against Russia, and of course, ISSE.

South Korea’s former president, Yoon Suk Yeol, has been sentenced to life imprisonment after a failed six-hour declaration of martial law in December 2024 led to his conviction for insurrection. Although martial law is constitutionally permitted under certain emergency conditions, the move was widely seen as an extreme response to domestic political pressures and triggered deep national polarization. His arrest, prosecution, and sentencing nevertheless unfolded through established legal processes, demonstrating the resilience of South Korea’s democratic institutions. The episode offers a stark case study in how emergency powers can be invoked, contested, and ultimately constrained within a constitutional system.

On December 30, 2025, The Recursive’s Teodora Atanasova published a late 2025 interview with ISSE’s Founder and Governing Board Chair Ed Bogan, discussing all facets of emergency powers abuses, and as well the strategy and goals of ISSE. From the article’s introduction:

States of emergency are no longer exceptional. Between 1985 and 2014, at least 137 countries experienced at least one declared state of emergency. Some follow clear and immediate crises — war, pandemics, natural disasters, with about 90% of constitutions worldwide including explicit provisions for states of emergency. Others arise from far more ambiguous threats.

“Emergency powers are meant to be temporary and targeted,” explains Ed Bogan, a former CIA officer with more than two decades of overseas experience. “But more and more, they’re being used to consolidate authority, suppress dissent, and weaken democratic accountability. The warning lights are blinking red right now.”

Bogan is the founder and board chair of the newly launched Institute for the Study of States of Exception (ISSE), a nonprofit, nonpartisan organization dedicated to tracking, analyzing, and exposing the misuse of emergency powers worldwide.

The concept of a “state of exception” refers to moments when normal legal protections are suspended in the name of crisis management. While such measures are embedded in constitutions across the globe, Bogan argues that the real danger lies not in their existence, but in their normalization.

On January 29, 2026, U.S. President Donald J. Trump signed an Executive Order titled “Addressing Threats to the United States by the Government of Cuba,” declaring that the current geopolitical dynamics involving Cuba constitute an “unusual and extraordinary threat” to U.S. national security and foreign policy, and as such further constitute a formal national emergency under the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA).

This explainer situates the declaration within the broader framework of U.S. emergency powers, outlining the legal authorities invoked and the mechanisms through which the order is intended to be implemented. ISSE’s analysis focuses on clarifying how this emergency functions in practice, what it enables as a matter of law, and why its invocation matters in the context of the growing normalization of emergency authorities in U.S. governance. The piece is intended to provide readers with a clear, accessible account of the declaration itself and its immediate implications, rather than a normative assessment of U.S.-Cuba policy.

This book proposes a paradigm shift in the way that ‘the state of exception’–as it is usually named in legal and political theory–is to be understood. Building on the assumption that the exception is a heuristic idea that is still a relevant category for a critical deconstruction of law, this book argues that it needs to be rethought outside the boundaries of its traditional understanding. To this end, the book offers two strategies. First, it develops the ideas of ‘exceptionality’ and ‘exceptionalisation’ in order to grasp how measures, norms and mechanisms that clearly have an exceptional character are no longer confined within the boundaries of classic institutions such as the state of exception, martial law, the state of emergency and so on. As demonstrated recently during the COVID-19 pandemic, legal systems may dissimulate the exceptional as the normal, avoiding the use of formal states of exception and adopting measures that are of exceptional nature. This book maintains that it is necessary to think of ‘exceptionality’ outside of its usual legal footholds. Emergency laws are considered here as part of a more general sphere of exceptionality that must be understood as the product of a process of the accumulation of symbols, practices, notions and images that are only partially expressed through law, despite having long populated the legal imagination. Second, the book offers an analysis of the inner exceptional life of liberal constitutionalism: the subterranean authoritarian drives dissimulated by the rule of law.

This book will interest scholars and researchers in legal and political theory, as well as continental philosophy.

Summary: “Sovereign is he,” wrote the German political theorist Carl Schmitt in 1922, “who decides on the exception.” The opening line of Political Theology was meant to shock even a century ago. In a liberal democracy, after all, sovereignty rests in “the people,” not in a “he” who “decides” on an “exception.” But Schmitt is the great prophet of liberal breakdown. He understood liberalism as an Enlightenment project that would not survive the modern era of mass industry, mass media, and mass politics. The liberal state runs smoothly on its rails of law and norms until it encounters the “exception”—a strike, a beer-hall putsch. Then, and only then, when someone (some “he”) steps forward to fill the vacuum with action (the decision) do we discover where true power—that is, sovereignty—lies. At the moment of crisis, the flimsy structure of liberal normativity collapses and power reveals itself. Schmitt was the twentieth century’s own Thomas Hobbes. Perhaps we would regard him today as the preeminent rival of Jürgen Habermas or John Rawls—the great liberal thinkers of the twentieth century—had he not, at the decisive moment of his career, welcomed, celebrated, and justified the Leviathan of his own day: Adolf Hitler.

It is a safe bet that Donald Trump had not read Political Theology when he declared his own version of a state of exception on January 20. Trump did not need an actual crisis in order to issue a torrent of executive orders usurping the independence of federal agencies, preempting the role of Congress, threatening the press, mobilizing the armed forces against immigrants, etc. As Trump himself put it, “He who saves his country does not violate any law.” He had filled the vacuum with decisive acts. Whether Trump will turn out to be “America’s Hitler,” as Vice President J.D. Vance once suggested before changing his mind, he is a kind of fulfillment of Schmitt’s dire expectations.

Until very recently we would have said that history had proved Schmitt wrong. In the decades after the Second World War, Germany, Japan, Italy, Spain, Portugal, and other autocratic powers made a peaceful transition to liberal democracy. Europe became, as the pundit and historian Robert Kagan put it, “a Kantian paradise.” Now we have to wonder if Schmitt’s dark prophecies were merely premature, and it was not the industrial but the post-industrial era that put the quietus to liberalism.

This is Carl Schmitt’s moment. In the past year, two New York Times columnists have accused Trump and his followers of borrowing from Schmitt’s playbook. J.D. Vance has insisted that, on the contrary, it is liberals who share Schmitt’s fixation with raw power. 

ISSE Comment: This article is included on the ISSE website because it examines the treatment of fundamental rights within the broader context of armed conflict and emergency governance. Although it does not focus on the formal exercise of emergency powers, it provides a detailed analysis of how freedom of political expression is regulated, limited, and justified during periods of heightened security concern, and in this instance, under martial law. The study contributes to ISSE’s research agenda by illuminating how international legal standards, domestic legal frameworks, and institutional practices interact under crisis conditions, offering valuable insight into the protection of democratic rights during and beyond emergencies.

Abstract: The article is devoted to a comprehensive study of the right to freedom of expression of political views during armed conflict. It examines the nature of this right as one of the fundamental elements of a democratic society, defines its content, functions, international legal guarantees, and national mechanisms for its realization and limitation. Given the ongoing armed aggression against Ukraine, the issue of the permissible limits of state interference in freedom of expression under the pretext of national security protection has become particularly relevant. The article analyzes the norms of international law, including the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 10 of the European Convention on Human Rights (ECHR), recommendations of the Council of Europe, and the positions of the OSCE, the United Nations, and leading international organizations such as ARTICLE 19 and CPJ. Special attention is given to the case law of the European Court of Human Rights, which establishes key approaches to the protection of political expression even under crisis conditions. The study presents a number of real-life examples from the Ukrainian context, such as the blocking of media outlets by decisions of the National Security and Defense Council, illegal surveillance of journalists, administrative pressure on editorial offices, and increased self-censorship under martial law. These phenomena are analyzed in terms of their compliance with the Constitution of Ukraine and international legal standards. It is determined that the existing legal protection mechanisms are insufficient or ineffective, which threatens the democratic balance of power during wartime. The author proposes a set of specific measures to maintain the balance between security needs and freedom of expression, including the harmonization of national legislation with international standards, the creation of independent institutions to monitor restrictions on freedom of speech, the enhancement of legal and physical protection for journalists, the development of digital and media literacy among the population, as well as cooperation with technology platforms to ensure transparent content blocking procedures. It is concluded that the right to freedom of expression of political views plays no less important a role during wartime than in peacetime: it serves as a safeguard against authoritarianism, an indicator of governmental legitimacy, and a foundation for the post-war democratic reconstruction of the state. Ignoring this dimension not only violates Ukraine’s international obligations but also poses a threat to internal political stability in the context of national recovery.

The aim of this article is to problematize one of the most audacious tenets of the new consensus, namely the revolutionary character of fascism, by linking together the experience of the state of siege and the emergence of the fascist movement in interwar Romania. It tries to do so by drawing on the philosophical underpinnings of the paradigm of the state of exception developed by Giorgio Agamben and Walter Benjamin’s critique of law and violence. In a first part my aim is to present the main arguments espoused in defending the view according to which fascist movements were professing an authentic revolutionary radical politics. Secondly, I will turn towards legal critique and to the work of Giorgio Agamben in order to build a topography of the relation between law and the force of state. In a third part I will focus on the uses and the historical meaning of the state of siege in post-First World War Romania. This article argues that the emergence of the fascist movement in Romania is an event strongly embedded in the political, legal and symbolic dynamics entailed by the state of exception rather than the expression of a revolutionary thrust.

Agamben has long argued, in a formulation best distilled in his book Homo Sacer: Sovereign Power and Bare Life, that the “camp”—be it concentration camp or refugee camp—is the paradigm of political modernity insofar as legal categories and the idea of sovereignty have served as a justification for abandoning ‘‘enemy bodies’’ to zones outside strict legality. In Homo Sacer, Agamben is steeped in the most dystopian and rights-skeptical thought of theorists such as Michel Foucault, Walter Benjamin, Hannah Arendt, and Carl Schmitt, yet he still emerges with a relatively redemptive ethical sensibility, one that would be appealing to those who seek to defend human dignity against cruelty. Certainly, his persistent invocation of the Holocaust to dramatize modern forms of exclusion and outlawry puts him in the company of twentieth-century ethicists ranging from Emmanuel Levinas to Judith Shklar, who drew upon the Holocaust as the ultimate experiential grounding for their theories. In my view, Agamben can be read as a philosopher of deep ethical concern and originality but, to read him charitably, one must become accustomed to his signature rhetorical devices of hyperbole, paradox, and “indistinction” (whereby Agamben frames conceptual opposites, such as security and insecurity, rights and repression, or public and private, as deeply intertwined). It is helpful to approach a number of these conceits as thought experiments. For example, the use of hyperbole is not very different from “slippery slope” arguments. As for paradox and indistinction ...it seems fair to say that states of exception—perhaps more so than any other subject matter of legal theory—constitute an area of inquiry where these discursive vices can actually be seen as virtues. The language of indistinction and undecidability is often descriptively appropriate, and this is evident in numerous scholarly accounts of the blurred distinctions between war and crime, sovereignty and territorial control, combatant and civilian, legal and political decisions, all of which have increased since September 11, 2001.

In Agamben’s new book, State of Exception, a sequel to Homo Sacer, he draws explicitly on lectures delivered in New York and elsewhere in the years since 9/11, repeating the central themes of his past work and transposing them to a different key. Here, rather than speaking of the “camp,” he argues that the “state of exception” is a primal form of modern government. While innumerable debates and insights may be drawn from this slim volume, I will limit this review to three areas: (a) Agamben’s historical account of the state of exception, including his most controversial claim, in which he finds a basis for the practice not in the Roman dictatorship but in an obscure public ritual known as iustitium; (b) recent constitutional theory that refutes Agamben’s statement that the state of exception (even as he redefines it) has been ignored as a “question of public law”; and, finally, (c) the curious absence of Agamben’s distinctive theories of “spaces of exception,” which had been productively developed in earlier works but are muted here in service of a larger ethical thesis.

The concept of “state of exception” has a rich historical background and has become increasingly prevalent in contemporary discourse. This term is commonly used to draw attention to the current political and legal conditions, emphasizing an extraordinary event or process. However, behind this expression lies a complex concept and a detailed historiography.

Throughout history, the state of exception has been utilized as a means to safeguard the threatened sovereignty of the State and its institutions, sometimes even leading to the suspension of certain rights and guarantees. This state exists at the intersection of a crisis and enduring governmental practices, with the potential to evolve into dictatorships in extreme cases.

In essence, the state of exception represents a delicate balance between maintaining order and protecting individual freedoms. It serves as a critical tool for governments to navigate through times of uncertainty and crisis, while also posing significant challenges to the principles of democracy and rule of law.

This book endeavors to provide a comprehensive examination of the term “states of exception” and its significance in various fields such as politics, law, history, philosophy, and sociology. By offering a conceptual analysis of the term, its historical application, and implications, as well as an international historiographical perspective, this book aims to shed light on the complexities surrounding this topic.

When living in a time of crisis, it becomes easy to forget that our institutions have been through crisis before. That our institutions are still here and operating today is a testament to the fact that they are, on some meaningful level, resilient to incredible strain. This is, in large part, because they were designed to operate under this strain. While the Framers of the Constitution were undoubtedly working to build a government that operated effectively on a day-to-day basis, they were also preoccupied with creating a structure that could withstand extreme pressure, respond to threats, correct its own errors, and survive to work for the general welfare of the American people in the long run. One element of the constitutional design central to this resiliency is the availability of vast emergency powers to use in response to exceptional threats. Of course, no system is perfect, and no matter the intentions of the Framers, as American civilization has developed and expanded, so too has the complexity of our society and governmental structure. If the SARS-Cov-2 pandemic has shown anything, it is that there is great disagreement as to what the theoretical and actual limits of federal emergency powers are and ought to be.

“Emergency” is, of course, a very difficult legal concept to define and analyze, not least because it implicates an endless range of topics, from the very broad to the very specific. Emergency, and especially extreme and existential emergency, interacts with fundamental  principles as the basis of sovereignty itself and the very nature of government and the state—if a government cannot adequately protect its people from a crisis, that government is not likely to survive. Still, as with any legal principle, the principle must be made to function in the real world, whether it be through constitutions, both written and implied, or through more mundane and routine statutory law. Complicating any analysis of emergency and emergency powers even further, there is not only no agreement on what precisely an emergency is or ought to be, but there is also no theoretical end to the nature and type of possible emergencies that could arise, especially as society continues to develop and grow ever more complex.

It is essential to begin any analysis of federal emergency power in the United States by understanding the theoretical, constitutional, and statutory bases for such powers, the history of the use of such powers, and where the law stands today. In an attempt to aid in this understanding, this Note will explore the theoretical and constitutional basis for federal emergency power, arguing first that the conception of federal emergency powers in the United States Constitution is best understood as expansive and flexible, and second, that the primary, though not exclusive, functional limits to this power are the protections found within the structural portion of the Constitution, namely separation of powers and the political process. This Note will then turn to how the statutory law of emergency functions and has developed under the constitutional structure, arguing that, while the constitutional framework for handling emergencies lays out a strong and flexible structure for addressing emergency, the statutory law of emergency which has subsequently grown underneath the constitutional structure contain many concerning faults in implementation.

For United States President Donald Trump, 2025 was a year of crisis.

Roaring into office on January 20 on the heels of a raucous political comeback, the president’s own telling describes a series of actions that have been swift and stark.

To name a few, he has envisioned rooting out a migrant “invasion” that includes staunching legal immigrants, and, potentially, targeting US citizens; he has touted a hard reset of uneven trade deals that pose “an unusual and extraordinary threat to the national security”; and, in the final months of the year, he has gone on the military offensive against “narcoterrorists” that he claims seek to topple the US through illicit drugs, possibly used as “weapons of mass destruction”.

For legal observers, Trump’s approach has been a yet-undecided stress test on presidential power, cranked by the gears of broadly interpreted emergency statutes and untrammeled executive authority.

Decisions by the court, lawmakers and voters in the 2026 midterm elections could determine how that strategy resonates or is restrained.

“The use or abuse of emergency powers is only one corner of a larger picture,” Frank Bowman, professor emeritus of law at the University of Missouri, told Al Jazeera.

“In many cases, the administration is simply doing stuff that certainly any pre-existing understandings of executive authority would have said you cannot do,” he said.

This article examines Nayib Bukele's leadership and his revolutionary government style in El Salvador, emphasising the convergence of stringent security policies, criminal populism, and digital political communication. Bukele's administration has realised a significant reduction in homicide and gang-related violence, chiefly through the enforcement of a prolonged State of Exception and the establishment of the Centro de Confinamiento del Terrorismo (CECOT), a vast prison epitomising total state authority. Utilising ideas of authoritarian populism, penal governance, and digital populism, the research examines how Bukele reinterprets legitimacy, transitioning it from democratic processes to performance-oriented results. By employing charismatic leadership and an advanced social media approach, Bukele has circumvented traditional institutions, centralised authority, and established a direct emotional bond with the populace. Although some Salvadorans rejoice in the restoration of safety and order, detractors caution against the deterioration of legal protections, judicial autonomy, and civil liberties. The report underscores a paradox: Bukele's popularity increases concurrently with the erosion of democratic standards. The study contends that although Bukele's model provides immediate stability and encourages regional imitation, it poses significant concerns regarding the sustainability of security attained through democratic erosion and institutional exceptionalism.