Unconstitutional States of Emergency

Journal Article: Unconstitutional States of Emergency

Journal: Journal of Legal Studies

Date of Publication: June 2022

Authors: Christian Bjørnskov, Stefan Voigt, and Mahdi Khesali. Bjørnskov is a Professor of Economics at Aarhus University and Researcher at the Research Institute of Industrial Economics. Voigt is Professor in the Institute of Law and Economics at University of Hamburg and Fellow at CESifo. And as of the time of publication, Khesali was a Doctoral Student in the Institute of Law and Economics at University of Hamburg and Fellow at the Max Planck Institute for Research on Collective Goods.

How to Cite: Bjørnskov, Christian; Voigt, Stefan; Khesali, Mahdi (2022) “Unconstitutional States of Emergency.” Journal of Legal Studies, 51(2), 455-481. https://doi.org/10.1086/718681

Abstract: Nine of 10 modern constitutions contain explicit emergency provisions describing who can declare a state of emergency (and under what conditions) and the additional powers the government enjoys under a state of emergency. As states of emergency typically allocate additional powers to the executive, they lend themselves easily to abuse and provide political incentives to declare emergencies. In this paper, we analyze the conditions under which government behavior under a state of emergency deviates from constitutional provisions and a gap between de jure provisions and de facto behavior thus results. In a novel data set comprising 853 emergency declarations, 115 are identified as unlawful. We find that autocratic governments are more likely than democratic governments to violate the constitution. The requirement that a second chamber approve the emergency declaration is associated with a higher likelihood of its being unconstitutional.

A PDF of the article is available here.

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