The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by the publics in many countries, some scholars and activists have raised the alarm that these might lead to a deterioration of civil liberties and constitutional democracy long-term. Specifically, they worry that many leaders might not easily give up their newfound powers, and that civil liberty restrictions will become a new normal.

While it is of course too soon to explore the long-term consequences of COVID-19 for constitutional democracy, we believe that it is helpful to understand the legal bases for the extraordinary powers that governments are currently exercising. In this brief Essay, we find that, while the details of course vary from country to country, there are three broad legal bases for the COVID-19 measures: (1) the declaration of a state of emergency under the constitution, (2) the use of existing legislation dealing with public health or national disasters, and (3) the passing of new emergency legislation. In the remainder of this Essay, we describe these three broad approaches. In a follow-up Essay, we will evaluate their respective risks to civil liberties and the rule of law…

In States of Emergencies: Part I, the authors described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have relied on existing legislation relating to communicable diseases, health, and/or national disasters and used these laws as the basis for their COVID-19 response. Third, some countries have (also) passed brand new legislation that grant the governments new powers to respond to COVID-19.

When governments are granted powers to restrict rights, there is always a risk of abuse. To minimize these risks, three broad principles are important: (1) providing for legislative and judicial oversight of the executive, (2) limiting exceptional measures to those strictly necessary, and (3) ensuring that such powers endure only for the duration of the outbreak…

Almost half of the political life has been experienced under the state of emergency and state of siege policies in the Turkish Republic. In spite of such a striking number and continuity in the deployment of legal emergency powers, there are just a few legal and political studies examining the reasons for such permanency in governing practices. To fill this gap, this paper aims to discuss one of the most important sources of the ‘permanent’ political crisis in the country: the historical evolution of legal emergency power. In order to highlight how these policies have intensified the highly fragile citizenship regime by weakening the separation of power, repressing the use of political rights and increasing the discretionary power of both the executive and judiciary authorities, the paper sheds light on the emergence and production of a specific form of legality based on the idea of emergency and the principle of executive prerogative…

Emergency has assumed central importance in the United States legal system. In 2019, President Trump declared an emergency at the southern border after Congress declined to fund his wall; critics responded with legal challenges and proposed reforms to the statute he invoked, the National Emergencies Act (NEA). Emergency powers have also played a key role during the COVID-19 pandemic. This Article conducts a comprehensive survey of emergency powers in the United States. It shows that the NEA is only one among many grants of authority presidents can call upon in a crisis, alongside other emergency schemes, specially delegated statutory power, nonemergency statutes, and inherent executive authority. It argues that the United States' fragmented emergency powers scheme raises not only well-known risks of overreach presidents abusing emergency authority to gain power or erode democracy, but also less appreciated risks of underreach where presidents are unwilling or unable to deal adequately with a crisis…

This study examines the exercise of presidential powers in emergency situations within the framework of Indonesia’s 1945 Constitution, focusing on constitutional limits and legal guarantees. Using a qualitative approach with a normative juridical methodology, the research analyzes constitutional provisions, statutory regulations, and judicial practices to evaluate the effectiveness of Indonesia's legal framework in balancing crisis management with the preservation of democratic principles. The findings reveal ambiguities in emergency criteria, gaps in accountability mechanisms, and concerns over proportionality in restricting fundamental rights. Comparative insights and recommendations are provided to enhance legal clarity, strengthen oversight, and safeguard constitutional democracy during emergencies…

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government brought the accused before a tribunal composed of nine military officers at the Old Arsenal Penitentiary in Washington, D.C. The President’s order empowered the commission to set its own rules of procedure. By the ensuing rules, a majority vote of the officers could sustain a guilty verdict, a two-thirds majority vote could sustain a death sentence, and the only avenue for appeal was to seek a pardon from the President…

This Article examines the ways in which various constitutional structures grant and constrain emergency powers. Specifically, the Article examines how a country defines the emergency powers of its chief executive and whether that definition is formal or informal. The Article also explores what effect the distinction between formal and informal powers has on a constitutional system’s ability to prevent a devolution of constitutional norms. The Article undertakes this inquiry by examining the use of emergency powers in different countries and at different times. It examines the constitutions of Germany’s Weimar Republic, Charles de Gaulle’s Fifth French Republic, and Indira Gandhi’s rule in India, as well as specific examples from United States history…

In January 2024, following a series of dramatic public security incidents, including the escape from prison of Adolfo Macias (“Fito”), the leader of the violent Ecuadoran gang Los Choneros, and the takeover of an Ecuadoran television station during a live broadcast, the newly elected government of Daniel Noboa declared a “state of internal warfare” in the country.  Through Presidential Decree 111, he designated 22 violent criminal entities operating in the country as “terrorist organizations” and authorized the employment of the Armed Forces in a broad range of security operations from supporting the control of the nation’s interior and borders, to deployment in prisons, to operations against illegal mining…

President Erdoğan and the AKP government initiated a comprehensive restoration process immediately after the failed coup in mid-July 2016. In fact, the country has been experiencing a very comprehensive and violent regime transformation since this time. I assert that recent political developments paved the way for institutionalization of a ‘plebiscitary presidential regime’ that depends on a particular combination of supreme power of the leader, an extremely weak parliament, and elections of a plebiscitary character. In this context, the paper aims to shed light on the role of the new strategic legalism which allows rule of law to be replaced by a rule by law approach, the executive prerogative principle to be dominant, and the law to be used for demobilization, all playing a highly critical role in the suppression of democratic opposition…

The objective of this article is to demonstrate how Colombia's mandatory preventive lock-down decrees during Covid-19 bypassed the constitutional controls designed to regulate states of exception. This situation resulted in a violation of the fundamental right to free movement. The methodology used in this study begins with an examination of the mandatory preventive lockdown decrees. It then continues with an analysis of the legal foundations on which these decrees were based to justify exceptional orders. Finally, the article reviews the jurisprudence of the Constitutional Court of Colombia and the Consejo de Estado, focusing on the reasons both courts were unable to exercise control over these decrees. The conclusion is that these decrees circumvented automatic constitutional controls, and any legal challenge against them proved ineffective due to procedural delays.…