INSTITUTE FOR THE STUDY OF STATES OF EXCEPTION

In this recent essay for Lawfare, Kate Gilbert examines how the Department of Justice’s first “Weaponization Working Group” report uses the language and procedures of ordinary bureaucracy to frame extraordinary political claims. The article raises broader questions central to ISSE’s work, including how exceptional political logics become embedded within routine governance and how expansive interpretations of Unitary Executive Theory may reshape institutional independence, prosecutorial discretion, and traditional constitutional guardrails.

Recent legal disputes over the revocation of security clearances and the attempted federalization of National Guard units raise questions that extend beyond statutory interpretation or executive overreach. They point instead to a deeper theory of presidential power, one that treats certain executive actions as categorically insulated from judicial review. This explainer situates those claims within the framework of unitary executive theory and examines how its most expansive forms can function as a standing state of exception within constitutional law.

The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original intent of our country’s founders requires presidential control, including a power to remove federal officials from their posts for political reasons. Opponents of the theory rely on functional considerations and our practice of dispersing power more widely. But neither side examines developments abroad to see what light other countries’ experience might shed on the question of whether the Supreme Court should craft a new rule of constitutional law cementing presidential control over the executive branch of government. This Article examines that experience, primarily through case studies of recent democratic decline in Hungary, Poland, and Turkey.

It shows that centralization of head-of-state control over the executive branch of government provides a pathway to autocracy. Indeed, unilateral presidential control of the executive branch constitutes a defining characteristic of autocracy.

In all of these countries, authoritarian leaders secured legislation or constitutional amendments establishing effective head-of-state control over key bureaucracies that usually enjoy substantial independence in a well-functioning democracy, such as the prosecution service, the electoral commission, and the media authority. Autocrats use this power to shield their supporters from prosecution while persecuting political opponents, to tilt the electoral playing field in favor of the ruling party, and to shrink the public space for debate; thus, severely impairing democracy and the rule of law.

Realization that the unitary executive paves the way for autocracy reframes the unitary executive debate. We must ask whether the Supreme Court should establish a practice by judicial fiat that authoritarians established through legislation and constitutional amendment. This Article explains that our tradition favors a construction of the Constitution that reduces the risk of losing our democracy and urges rejection of the unitary executive theory.

What are the problems and concerns with the Unitary Executive Theory of the Presidency? In this episode of Scholar Talks, Dr. Mark J. Rozell, founding dean of the Schar School of Policy and Government at George Mason University, joins Bill of Rights Institute Senior Teaching Fellow Tony Williams to discuss his newest book “Unitary Executive Theory: A Danger to Constitutional Government.” Together, they touch on topics such as the historical origins of the Unitary Executive Theory, the constitutional dangers surrounding it, and contemporary examples of presidents who exercised it. How has the use of presidential "czars" undermined Congress and the Constitution?

This op-ed examines the Supreme Court’s pending consideration of Trump v. Slaughter, a case that could significantly expand presidential authority over independent federal agencies and further institutionalize expansive interpretations of Unitary Executive Theory. The piece argues that permitting presidents to remove officials from independent regulatory agencies absent malfeasance would fundamentally alter the constitutional balance between Congress and the executive branch, placing large portions of the administrative state under direct presidential policy control. Particularly relevant to ISSE’s work is the article’s warning that the gradual concentration of executive authority can occur not only through formal emergency declarations, but also through judicial reinterpretations of constitutional structure that normalize increasingly centralized forms of governance over time. The essay also highlights broader debates surrounding separation of powers, democratic accountability, administrative independence, and the erosion of institutional guardrails originally designed to prevent excessive concentrations of executive power. More broadly, the article raises important questions about how constitutional democracies preserve constraints on executive authority when doctrines justified in the name of efficiency, accountability, or national leadership begin to reshape the ordinary functioning of state institutions themselves.

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?

Prerogative, the power to take extra-legal measures in extraordinary circumstances, is generally considered to be the exclusive domain of the executive. This article shows that James Madison, who is widely regarded as hostile to discretionary power in the executive, not only endorsed exercises of prerogative by the executive but also took steps toward developing a model of prerogative that gives primacy to the legislature in times of emergency. Madison’s views on “legislative prerogative” emerged in the context of congressional debates over avowedly unconstitutional proposals including a grant of military authority to seize private property during the revolutionary war, the creation of the Bank of North America under the Articles of Confederation, and the provision of financial assistance to refugees from St. Domingo. These cases reveal a strict constructionist resorting to extra-legal measures to pursue objectives not expressly authorized by the constitution then in place as a safer alternative to more permanent expansions of government power established through law.

From the Book Preface: The concept for this edited volume emerged during a time when the world was gradually moving away from the emergency measures implemented in response to the Covid-19 pandemic. One of us spent much of the pandemic in the UK, while the other was in Sweden, each of us witnessing very different governmental responses. Having worked together in Lund during the 2015 European migration crisis that saw more than one million people seek asylum in Europe, this had not been our first encounter with emergency measures. During this period, Sweden imposed border controls and ID checks on the Öresund Bridge that connects Lund to Denmark and the rest of the European continent. Sweden was not alone in enacting emergency measures in the form of restrictions on movement within the Schengen Area – Denmark enforced similar measures at its border with Germany, and Germany did the same on its border with Austria. As EU law scholars, we were curious about the impact that emergencies have on the EU: a jurisdiction built on solidarity, free movement and the rule of law.

More precisely, we got to debating the question in which circumstances, if any, fundamental rights could legitimately be suspended in the face of an emergency. And if there were to be such a suspension, who should take responsibility for safeguarding that this exercise of power did not erode procedural and substantive fundamental rights: the EU or national courts, the EU or national parliaments, the public or a different body altogether? What role might proportionality play in balancing different rights in cases of emergency? Sitting in Sweden, which lacks formal constitutional provisions for declaring a state of emergency (except in the case of war), it quickly became apparent that a definition of what counts as an emergency is crucial: could it be that what is to be labelled an ‘emergency’ in one country is approached as a ‘crisis’ in another? What might be the legal implications of such divergencies? Even if we could rally around a common definition of what constitutes an emergency, should we approach the migration crises, the Covid-19 pandemic, and climate change the same way?

The Supreme Court’s decision in Louisiana v. Callais has intensified debate over judicial power, electoral representation, and democratic legitimacy in the United States. While supporters view the ruling as a constitutional limit on race-conscious districting, critics argue it may weaken Black political representation in several Southern states. From an ISSE perspective, the case is significant not only for its voting-rights implications, but for how accelerated procedures and emergency-style mechanisms derived from the ruling are already shaping ordinary democratic governance. Rapid redistricting efforts and compressed legislative timelines illustrate how exceptional practices can become enabled and embedded within formally constitutional processes. The case raises broader questions about democratic resilience, institutional restraint, and the gradual normalization of exceptionality within contemporary governance.

Human Rights Watch’s analysis of Hungary highlights how emergency powers have become embedded in the country’s political system. Under Viktor Orbán, who was voted out of office in April 2026, crisis-driven authorities have evolved into durable tools for governing, shaping media, institutions, and electoral competition. Rather than temporary measures, emergency frameworks have been renewed and repurposed across migration, pandemic, and security contexts. Weak domestic and external constraints have allowed these powers to persist with limited oversight. For ISSE, Hungary illustrates the normalization of exceptionality, where extraordinary powers become a routine feature of democratic governance.

Supported by civil society, a group of independent international law and human rights experts (The International Group of Experts for the Investigation of Human Rights Violations in the Context of the State of Emergency in El Salvador – GIPES [for its initials in Spanish]) was convened to investigate whether systematic abuses being carried out under the State of Exception public security policy in El Salvador –including torture, sexual violence, enforced disappearances, and extrajudicial executions– are indeed crimes against humanity.

On March 11, 2026, at a side event to the United Nations Human Rights Council session, members of the Group and civil society presented the Group of Experts initiative, their research findings and legal analysis, and other key information about the ongoing State of Exception and its impact in El Salvador.

The invited speakers were Leonor Arteaga, Program Director at DPLF; Santiago Canton, ICJ Director and GIPES member; José Antonio Guevara, former WGAD President and Group member; and Noah Bullock, the Executive Director of Cristosal. Irene Aparicio of CCPR moderated the panel discussion.

This side event was hosted by the Centre for Civil and Political Rights (CCPR), Cristosal, Due Process of Law Foundation (DPLF), InterJust, International Commission of Jurists (ICJ), International Federation for Human Rights (FIDH), Redress, Rights & Security International.

An international panel of legal experts has concluded that serious human rights violations committed under El Salvador’s ongoing state of emergency may constitute crimes against humanity. The report examines allegations including arbitrary detention, torture, enforced disappearances, sexual violence, and persecution carried out as part of the government’s security policy since March 2022. Beyond documenting abuses, the study argues that the prolonged state of exception has weakened democratic safeguards, eroded separation of powers, and concentrated authority within the executive branch. The report also calls for independent case review mechanisms and greater international accountability efforts. For ISSE, the findings highlight the long-term institutional risks posed by entrenched emergency governance.

This Forward introduces the special issue of the European Journal of Risk Regulation entitled “Constitutional Risk Management in the V4 Countries,” which examines how constitutional democracies respond to crises through emergency legal regimes and exceptional powers. Focusing on the Czech Republic, Hungary, Poland, and Slovakia, the issue explores the constitutional management of crises including the COVID-19 pandemic, war, migration, and environmental emergencies. The collection analyzes both the legal frameworks governing states of exception and the broader normative question of how democratic systems can preserve rule-of-law safeguards during prolonged crises. ISSE will publish each article from the special issue as standalone website entries in the coming weeks. All materials are Open Access and distributed under a Creative Commons Attribution license.

One of the goals of this paper is to define the most important concepts for the comparative study of the constitutional risk management of the V4 countries. For this purpose, first, it considers the theoretical difficulties of conceptualising emergencies, especially focussing on what kind of response can be given to the widespread view that considers emergencies as a kind of legal “black hole” due to their unpredictability. Then a general definition of “emergency” is discussed which is broad and flexible enough to serve as a basis not only for a comparative study but also for the constitutional discourse of emergencies. Constitutional crisis management as a core concept for such an undertaking is also canvassed. After defining the basic concepts essential for evaluation and comparison, the article outlines the general types of emergency regulatory regimes. The development of effective regulatory systems for emergencies also has to face certain problems that every constitutional polity must solve. Finally, the paper summarises assessment criteria necessary for the evaluation and a comparison of the emergency constitutions of different countries.

European constitutions differ greatly in the depth to which they deal with emergencies: while many constitutions devote more or less detailed regulation to emergency regimes, others almost completely neglect these issues or dedicate only some very short and vague references to emergency situations and powers. This article aims to carry out a systematic comparison of the emergency-related provisions of forty European constitutions, focusing on (1) the level of detail of the regulation, (2) the emergency regimes addressed, and (3) the restrictions on fundamental rights. As the study points out, only two out of the forty constitutions are completely silent on emergency powers. However, the remaining thirty-eight constitutions show wide variation in the level of detail of the emergency regulation; the vast majority of the emergency regimes are related to war or armed attack (or the danger thereof), to internal crises threatening the constitutional order, and to natural disasters. Concerning fundamental rights, the examination of the constitutional texts confirms that twenty-five out of the forty constitutions encompass some provisions on the restriction of these rights in a state of emergency.

The paper outlines Czech constitutional law and the development of emergency law. Initially, the legislature did not expect emergencies to occur, perhaps due to the idealistic optimism associated with the general atmosphere of the collapse of the Eastern Bloc in 1989 and the “End of History” thesis. As a result, emergencies were not regulated by Czech law in the 1990s. This changed after the great floods at the end of the 1990s, when “history returned,” and the need for some special rules for emergencies became clear. The first decades of this century showed that Czech emergency law worked well for short-term natural disasters. The game-changer came in 2020, with the emergence of the COVID-19 pandemic and the need for a long-term state of emergency. It soon became clear that the rules that worked for floods and other disasters did not work for long-term global pandemics. In other words, the legal system was not prepared for a situation in which emergencies were the rule rather than the exception. Legislators were unable to prepare a long-term legislative response to fill this gap. The memory of COVID-19 is fading fast, and there are no plans to reform the relevant legislation. Accordingly, any new pandemic or similar event will lead to the same problems that the Czech legal system had to deal with from 2020 to 2022.

The paper offers a comprehensive overview of Hungary’s emergency law and its misuse over the four years since its introduction in March 2020. Hungary serves as a clear example of how a “state of danger” – initially intended as an exceptional legal measure – can become normalised through repeated declarations. The populist government’s continuous use of emergency powers has led to unchecked lawmaking and the manipulation of legal frameworks to advance populist agendas. The article argues that while Hungary’s detailed emergency provisions in the Fundamental Law were intended to serve as a form of constitutional risk management, after four years of living in a permanent “state of danger”, the scholarly debate has shifted to whether this very risk management has itself become the risk. According to emergency law theory, managing constitutional risks is equally vital in the emergency legal order. Yet in Hungary, both the black letter of the law and the constitutional practices observed during and after the COVID-19 pandemic – along with the Ninth Amendment to the Fundamental Law, which introduced a new emergency regime in 2021 – reveal that constitutional risk management has ultimately failed. This is manifest in the erosion of the separation of powers, the weakening of judicial review, and the shrinking of human rights protections. The article substantiates its argument by examining the related constitutional framework and constitutional practice in Hungary between 2020 and 2024.

This article analyses the constitutional framework regulating states of emergency in Poland and addresses key issues related to their interpretation and implementation. The first part discusses the conditions for declaring martial law, a state of an extraordinary situation, and a state of natural disaster, as well as the specific rules for the operation of public authorities in such emergencies. The next part analyses the practice, revealing the consistent reluctance of Polish authorities to invoke states of emergency, even in circumstances that seem to justify such measures. Consequently, a state of emergency under the 1997 Constitution was declared in Poland only once – in 2021, in response to a migration crisis on the border with Belarus. No constitutional emergency was declared during the COVID-19 pandemic, despite the introduction of far-reaching restrictions on individual rights and freedoms. The article argues that state authorities can abuse emergency regulations, either through their unjustified application or by deliberately circumventing them.