United States: NYC Bar Report Raises Alarm Over Expanding Executive Power and Eroding Constraints

ISSE Analysis

The New York City Bar Association’s Rule of Law Task Force recently released a March 2026 report entitled “The Crisis Deepens: Congress Must Act Now to Address Escalating Abuses of Executive Power.” This report’s December 2025 predecessor, entitled “The Abuse of Presidential Power and Breach of the Public Trust,” identified a pattern of executive actions that strained constitutional limits and tested institutional resilience. The new report goes further: it argues that what was previously episodic has now become structured, and that executive behavior is no longer merely probing legal boundaries but operationally redefining them through sustained practice.

At the center of this shift is the expanding use of coercive state authority in ways that replicate the functional attributes of emergency power, such as speed, opacity, and diminished procedural safeguards, all without formal invocation. The recent Minneapolis enforcement actions described in the report illustrate this transformation: large-scale operations marked by militarized presence, warrantless intrusions, mass detention, and the relocation of individuals beyond their home jurisdictions. These are not simply aggressive law enforcement tactics; they are structurally analogous to emergency measures, deployed outside the legal frameworks designed to authorize and constrain them.

This is a core ISSE concern: exceptional power is being exercised without exception being declared. The earlier report warned of boundary-testing; this one documents boundary displacement. The formal architecture of emergency law, intended to both enable and limit extraordinary authority, is bypassed, while its operational logic is preserved. This produces a form of governance that captures the advantages of emergency power while avoiding its principal accountability mechanisms. In such a system, the distinction between ordinary governance and exceptional rule does not vanish, but ends up deliberately obscured.

The report also identifies a parallel erosion of institutional constraint, including resistance to judicial authority, selective compliance with court rulings, and the marginalization of congressional oversight. These tensions between the branches of government function as enabling conditions for the broader pattern: as courts lose enforcement traction and legislative oversight weakens, the executive’s capacity to operationalize exception-like measures without consequence expands. Constraint degrades unevenly, creating space for further expansion.

Equally consequential is the report’s account of rights erosion across multiple domains, particularly in immigration enforcement and due process. Beyond the gravity of the individual instances of violation, a governing logic is emerging in which rights protections become contingent and selectively applied. When procedural safeguards can be bypassed at scale and with limited transparency, rights cease to operate as stable constraints and instead become discretionary features of enforcement practice.

The report’s call for congressional intervention highlights both the availability and the fragility of corrective mechanisms. Constitutional systems rarely lack formal tools of constraint; they falter when those tools are not deployed with sufficient consistency or force. Political incentives, institutional inertia, and polarization may all inhibit effective response, allowing executive practice to outpace institutional correction.

What emerges from the report is a transition from episodic overreach to normalized exceptionalization, an embedding of emergency-style governance within the ordinary operation of the state. This demonstrates a transformation which is incremental, practice-driven, and difficult to reverse once established. It is precisely this form of change that poses the greatest challenge, as it slowly alters the meaning of legality without formally abandoning it.

For ISSE, the implications extend beyond the United States. The dynamics identified here, undeclared exceptionalism, institutional drift, and the conditionalization of rights, reflect patterns observed in other advanced constitutional systems. The critical question is no longer whether emergency powers are being misused in discrete instances, but whether the boundary between emergency and normal governance is itself being structurally eroded. Once that boundary becomes indistinct, the exception is no longer temporary, and no longer exceptional, but instead becomes routine.

Photo by Sasun Bughdaryan on Unsplash.