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.

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.

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.

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.

This article contributes to understanding how inexperience and lack of commitment to evidence-based decision making may undermine an otherwise broadly functional framework for constitutional risk management. As part of a focus on the “Visegrád Four” countries, it also helps understand regional dynamics since the COVID-19 pandemic as the most visible emergency after 1989. The article starts with a brief elucidation of the political contexts that have shaped Slovakia’s constitutional risk management, focusing on the developments from 2020 through early 2025. An analysis of mechanisms of emergency risk management in the constitutional framework follows, that helps identify key state authorities attempting to make decisions under serious time pressures. The implementation of the constitutional framework during the COVID-19 pandemic demonstrates the creation of new avenues for restricting rights and bolstering executive competence, with the formally powerful constitutional review mechanisms struggling to challenge these decisions. Ultimately, political context emerges as key: Slovakia entered the COVID-19 pandemic with a governing coalition enjoying constitutional majority and an aura of reform and hope. The emergency mismanagement not only facilitated the breakup of this coalition and early elections, but also a rise in emergency conspiracies openly hostile to institutions and actors committed to evidence-based decision making.

Our special issue examines the regulation and practice of constitutional risk management in the V(isegrád)-4 countries (Czech Republic, Hungary, Poland and Slovakia). Unfortunately, the treatment of the COVID-19 pandemic made this enterprise relevant, as all four countries had to face a similar health emergency. This article presents the most important experiences and trends in the constitutional crisis management of the four countries, identifying the challenges that the constitutional emergency regulatory regimes have encountered so far. Our paper argues that despite the basically similar constitutional frameworks, these countries typically handled the crisis in a different way, and in the process many constitutional problems arose for which there was no clear or uniform solution. Since the purpose of the international comparative research that is the basis of our special issue was to examine the emergency constitution of these four countries in general (since it will have to be applied to possible later, other types of emergencies), in the last chapter of the article we examine the possibilities of a proposition that represents a novelty in the constitutional discourse on emergency situations: this is an option for the convergence of emergency constitutions.

What are the conditions for effective crisis management in multi-level systems characterized by overlapping territorial and ethnic structures? To answer this question, this article considers evidence from Bosnia and Herzegovina (BiH). BiH’s fragmented governance often hinders effective vertical and horizontal coordination across government levels. Drawing on two case studies—the 2014 floods (an internal crisis) and the COVID-19 pandemic (an external crisis)—the analysis reveals how substate entities’ extensive exclusive powers promote unilateral decision-making and limit the ability to address crises collectively. The evidence shows that internal crises often exacerbate fragmentation, while external crises may initially foster coordination before political and structural limitations reassert dominance. Further, while community activism assists in addressing coordination gaps, it cannot substitute for gaps in governance.

The article aims to analyze the meaning and place of states of emergency as a special legal regime in the legislation of the Visegrad Group countries. The main research question is about the role of states of emergency in the political system of the Visegrad Group countries, the practice of their application in the face of special threats, and the consequences of states of emergency for citizens and state authorities. Are states of emergency an effective tool for dealing with special threats or an instrument that the government uses to strengthen its power? The main thesis is that political practice has revealed the lack of a coherent model of the Visegrad Group countries’ strategy for overcoming the emergency and using the instrument of struggle in the form of states of emergency. In the case of Hungary, it can be seen that the state of emergency has become an instrument used by the government to strengthen its power. The methods used are the comparative method to compare the practice of application and the regulations in force in the Visegrad Group countries regarding the category of states of emergency.

In 2025, President Donald Trump expanded his own powers through unprecedented interpretations of congressional statutes and Article II of the US Constitution. Ensuing waves of litigation and a record number of emergency-relief applications by the administration to the US Supreme Court placed extraordinary pressure on the federal judiciary. Although US district judges have delayed or halted a range of significant administrative actions, this article’s overview of Trump 47 in court highlights three different scholarly approaches that doubt that the US Supreme Court alone can or ultimately will reverse the administration’s agenda. First, the Roberts Court’s emergency docket decisions thus far comport with recent polarization trends in presidential-power cases. Second, the US Supreme Court lacks institutional capacity and consistent jurisprudence to challenge each area of alleged presidential overreach. Third, the administration’s use of broad authorities previously delegated by Congress serves as a reminder that constitutional interpretation and executive-branch powers are rooted in the broader political system. Congress cannot easily retract granted authority but curtailing presidential unilateralism requires more than litigation.

The proclamation of a state of emergency, whether triggered by armed conflict, terrorist threats, natural disasters, or global pandemics, constitutes a critical test for the resilience of democratic institutions and the protection of fundamental human rights. This paper explores the complex interplay between national security imperatives and the safeguarding of civil liberties during states of exception. Building on a multidisciplinary framework that integrates international human rights law, constitutional theory, and security studies, the analysis examines both normative constraints and empirical practices associated with the temporary suspension or limitation of rights.

The study focuses on the legal mechanisms and justifications invoked by states to derogate from certain obligations under international treaties, such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights. It also addresses the principle of proportionality, the requirement of legality, and the obligation of non-discrimination in the implementation of emergency measures. Special attention is paid to the role of constitutional courts and supranational bodies in reviewing the legitimacy and necessity of such restrictions.

Through a comparative analysis of recent case studies—including the COVID-19 pandemic response—this research highlights the risk of normalization of emergency powers and the erosion of democratic oversight. The paper argues for a strengthened normative framework that ensures a fair balance between protecting national security and preserving individual freedoms, emphasizing the importance of legal predictability, transparency, and accountability in emergency governance.

Background: Contemporary constitutionalism, shaped largely in the post-World War II era, was designed primarily for peacetime. As a result, neither constitutional theory nor practice provides clear answers to questions arising when societies and states face extraordinary situations such as armed conflict, hybrid threats, or terrorism — circumstances that pit state survival against the foundational principles of limited government and guaranteed rights.

Purpose: This article aims to examine how constitutionalism transforms under extraordinary circumstances, particularly martial law, and to identify a viable legal pathway for Ukraine's return to ordinary constitutional order following the termination or lifting of the martial law regime.

Methodology: The study employs an axiological approach, treating constitutionalism not as a static construct but as a dynamic system of values, principles, institutions, and procedures. This framework enables analysis of the relative weight of constitutional principles across varying socio-political circumstances, including crisis conditions.

Results: Under extraordinary circumstances, constitutionalism does not give rise to a distinct or parallel constitutional order — its core identity remains intact. What occurs instead is a temporary shift in the relative significance of key principles: public safety, stability, and statehood come to the foreground, while certain human rights are subject to proportionate restrictions and the rule of law is applied with due regard for the exceptional situation. After overcoming the crisis, the need arises to reassess the relative significance of these principles. The article proposes a dedicated transitional legal regime — positioned between martial law and ordinary peacetime regulation, and conceptualized as a specific instance of a state of emergency — to ensure a gradual and effective return to constitutional normalcy.

Conclusion: Constitutionalism retains its identity even under the most extreme conditions, provided that power remains bound by law. The concept of a transitional legal regime offers a practically grounded mechanism for post-war constitutional recovery, with particular relevance for Ukraine's legal and institutional reconstruction after the lifting of martial law.

The large-scale deportation of non-citizens has become a preeminent policy issue. Unfortunately, executive curtailment of immigrant communities’ liberty is not without historical parallels. During World War II, federal officials sent individuals of Japanese descent to internment camps through a series of executive orders and military proclamations. Although attorneys in the Department of Justice believed aspects of these actions were unconstitutional at the time, the administration prevailed at the nation’s highest court. Can recognition of this past wrong aid challenges to contemporary immigration enforcement regimes? How do our courts formally account for the most egregious jurisprudential errors of the past, and endeavor to avoid repeating them? This Article examines the ways in which courts have discussed Korematsu v. United States in the context of immigration arrests and detention. It also provides a comprehensive review of substantive citations to Korematsu since it was overturned in Trump v. Hawaii. The abrogation of Korematsu buttresses the decision’s utility as a negative precedent, and I endeavor to ground the relevance of overturned precedent within normative theories of constitutional interpretation. Through this analysis, I highlight significant similarities between the internment of Japanese Americans and the rhetoric surrounding immigration policy today. In this context, judicial condemnation of Korematsu underscores certain due process requirements for individualized hearings and suggests the need for greater scrutiny of the executive’s emergency powers.

Aim

This paper examines the interplay between political actors in different levels of government (i.e. from local to national) during the COVID-19 pandemic, using the framework of medical populism.

Subjects and methods

Three case studies illustrate how subnational political actors in the Philippines deployed medical-populist tactics to assert their leadership and challenge national policies: (1) Cebu Governor Gwendolyn Garcia’s promotion of “tuob” or steam inhalation during the early months of the pandemic; (2) two congressmen’s endorsement of ivermectin in Metro Manila during the country’s worst COVID surge; and (3) Former Manila Mayor Isko Moreno’s opposition to the national face shield mandate in the period leading up to the 2022 presidential elections.

Results

By spectacularizing the crisis, forwarding knowledge claims, and forging divisions between ordinary people and the so-called elite establishments of government and health authorities, these actors were able to either speak over scientific evidence or help contradict policies that were not backed by solid evidence to begin with.

Conclusion

This paper highlights the plural manifestations of medical populism in a given country, beyond just national leaders, as well as the evolving dynamics between national and local governments (and political actors) amidst health crises.

The exercise of exceptional power has long been at the centre of debate, as the process involves essentially breaking away from normality and giving political leader(s), especially the executive, almost unlimited power. Particularly in periods of constitutionalism and under liberal democracies based on checks and balances, when the principle of the separation of powers is temporarily ‘switched off’ for the time needed to avert an exceptional event, this leads to significant problems. This paper, after clarifying the theoretical starting points, will discuss in a historical context the authoritarian tendencies inherent in executive power that emerged within the history of ideas and politics in the 20th century in relation to the problem of constitutional dictatorship and which have today taken shape in the transformation of philosophies of government – namely, into a kind of permanent crisis-management philosophy of government. Furthermore, in the context of the COVID-19 pandemic, the literature is reviewed to address the democratic problems associated with exceptional governance. The main question underlying this analysis is whether exceptional governance affects democracy and legal systems and what tools and methods can be used to check the authoritarian nature of the executive in a state of exception.