This analysis by Ashleigh Maciolek at the Brennan Center for Justice examines the Supreme Court's increasing reliance on its emergency, or "shadow," docket, noting that for the first time the Court resolved more substantive matters through expedited emergency procedures than through its traditional merits docket. Particularly relevant to ISSE's work, the article raises broader questions about how institutional procedures originally designed for exceptional circumstances can gradually become normalized within ordinary constitutional governance.

In this Lawfare essay, George Croner examines recent court decisions addressing presidential authority to federalize the National Guard and considers what those rulings may mean for future invocations of the Insurrection Act, arguing that courts retain a critical role in reviewing whether presidents have satisfied the statutory conditions necessary to exercise extraordinary domestic emergency powers. The article explores how judicial oversight can serve as an important safeguard against the expansion and normalization of exceptional executive authority within ordinary constitutional governance.

Following nearly thirty-eight years of martial law, Taiwan undertook a decades-long process of reforming its security institutions while continuing to confront significant external security threats. This study demonstrates how constitutional systems can restore democratic oversight, civilian control, and institutional accountability after prolonged periods of exceptional governance, offering an important perspective on the long-term process of democratic recovery from emergency rule.

Drawing on more than three decades of comparative evidence, this report argues that democratic governance strengthens national security by reinforcing institutional resilience, public trust, accountability, and effective crisis response, challenging the assumption that security requires weaker democratic constraints. The report provides an evidence-based framework for understanding how constitutional guardrails and democratic oversight contribute to long-term security while helping prevent the normalization of extraordinary executive authority.

Kate Gilbert examines how the Department of Justice’s report uses the language of ordinary bureaucracy to frame extraordinary political claims. The article raises questions central to ISSE’s work: how exceptional political logics become embedded within routine democratic governance and how expansive interpretations of Unitary Executive Theory may reshape democratic governance. 

How can the most expansive forms of the unitary executive theory function as a standing state of exception within constitutional law? ISSE puts the recent legal disputes over the revocation of security clearances and the attempted federalization of National Guard within a deeper theory of presidential power. 

Examining the Supreme Court’s consideration of the Trump v. Slaughter case, Peter J. Wallison argues that permitting presidents to remove officials from independent regulatory agencies without a cause would fundamentally alter the balance between Congress and the executive branch. Relevant to ISSE’s work, Wallison warns that subtle judicial reinterpretations of constitutional structure over time accumulate excessive concentrations of executive power.

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.

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.

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.

A surge in executive “emergency” actions is reshaping the balance of power in the United States. This analysis finds that the scale, pace, and scope of recent emergency orders, particularly outside traditional frameworks like International Emergency Economic Powers Act (IEEPA), are historically unprecedented and increasingly directed toward domestic policy goals. The use of declarations such as the “National Energy Emergency” illustrates how emergency authorities can be leveraged to bypass Congress and statutory constraints. With legislative checks weakened since INS v. Chadha and judicial review often limited, meaningful oversight is increasingly difficult. The piece from Lawfare argues that courts may need to adopt more searching review to prevent the normalization, and weaponization, of emergency powers.

This Miller Center conference examines the history, expansion, and constitutional risks of presidential emergency powers in the United States. Convened after the Supreme Court’s February 2026 decision rejecting President Trump’s use of emergency authority to regulate tariffs, the discussion brings together leading scholars and practitioners to assess how presidents, Congress, and the courts have shaped the emergency-powers framework. Panelists trace the issue from the founding era through FDR, Watergate, 9/11, and the modern presidency. For ISSE, the event is important because it shows how exceptional powers can become routine tools of governance when Congress is weak, courts are cautious, and presidents face incentives to act unilaterally. The result is a constitutional system under strain, where emergency authority risks replacing democratic deliberation.

A Human Rights Watch report finds that some Salvadorans deported from the United States within the last year have been detained in El Salvador without access to lawyers, families, or courts, raising concerns about enforced disappearance. The report links these cases to El Salvador’s ongoing state of emergency, which has suspended key due process protections. Many families report being unable to determine the whereabouts or legal status of detained relatives. Authorities in both countries have provided limited transparency, while judicial and oversight mechanisms have offered little recourse. The findings highlight the risks that arise when deportation policies intersect with emergency governance frameworks.

This Carnegie Endowment report analyzes democratic backsliding in the United States under President Donald Trump in comparative perspective. It finds that recent developments align with patterns of executive aggrandizement seen in countries such as Hungary, India, and Türkiye, particularly through efforts to consolidate power within the executive, weaken institutional checks, and constrain civil society. At the same time, the U.S. case is distinguished by the speed and breadth of these efforts, as well as a focus on intra-executive control and indirect pressure on institutions. While U.S. democratic institutions remain more resilient than many global counterparts, the report concludes that the pace and scope of recent changes present a significant test for American democracy.

This Lawfare U.S.-based analysis compiles a nationwide dataset of more than 300 immigration habeas cases in which federal authorities failed to comply with court orders. While courts generally succeed in securing eventual compliance, the cases reveal recurring patterns, such as delayed releases, unauthorized transfers, and failures to justify detention, that require repeated judicial intervention to enforce legal limits. Situated within a broader framework of sustained emergency authorities and expanded enforcement activity, these dynamics point to structural strain within the system of legal oversight.

Viewed in aggregate, the dataset suggests not a breakdown of legality, but a shift in how it operates in practice. Individuals remain formally protected by law, yet the realization of those protections often depends on administrative action and continued judicial enforcement. This pattern also raises questions about the limits of judicial enforcement itself, and whether repeated, low-consequence noncompliance risks becoming normalized over time. For ISSE, these dynamics highlight how prolonged reliance on emergency frameworks may contribute to the emergence of exception-like practices within routine governance.

The U.S. Helsinki Commission issued a formal statement on March 18, 2026, entitled “Bipartisan Helsinki Commission Leadership issue Statement on OSCE Report on Human Rights Abuses in Georgia,” condemning Georgia’s systemic abuse of emergency‑like legislative powers and urging U.S. sanctions to compel compliance with international recommendations. This marks an explicit, bipartisan U.S. government acknowledgment that Georgia is leveraging emergency‑style laws to consolidate political control and suppress democratic opposition. The call for sanctions signals rising international pressure and potential policy movement if Georgia fails to reverse course.

Key Report Takeaways:

• Transnational trafficking of drugs and weapons, combined with the fragmentation of the gang landscape, fueled an escalation in violence that peaked in 2023 in both Jamaica and Trinidad and Tobago.

• In response, governments adopted states of emergency (SoEs) to curb gang violence. While violence declined in 2025, evidence does not support a direct or sustained link to SoEs.

• SoEs produce uneven and localized reductions in violence. They can temporarily suppress violence, but often they displace gang activity to other areas.

• The resilience and adaptability of gangs — through leadership succession, splintering, and mobility — have blunted the long-term impact of SoEs, with violence and rivalries frequently resuming after short-lived lulls.

• Militarized security operations under SoEs have fueled police brutality and rights abuses, with effects that extend beyond emergency periods and erode public trust in law enforcement.

In a recent Lawfare piece, Jeffery Tobin argued that the Americas are fast becoming a “Hemisphere of Exceptions.” From Ecuador, to Honduras, to the United States, executives across the region are increasingly deploying emergency measures—once conceived as temporary constitutional relief valves—as central instruments of governance to bypass legislative paralysis and manage chronic instability. As Tobin observes, this drift signals a dangerous transformation in which “legality [yields] to expediency” and crisis becomes a standing justification for rule by fiat.

However, one nation has emerged as a notable exception to this trend. In January, Canada’s Federal Court of Appeal (FCA) delivered a landmark unanimous decision in Canada (Attorney General) v. Canadian Civil Liberties Association. The decision affirmed that the federal government’s 2022 invocation of the Emergencies Act in response to the anti-lockdown “Freedom Convoy” was both unreasonable and ultra vires. In doing so, it upheld an earlier Federal Court ruling in Canadian Frontline Nurses v. Canada, which had found that the Cabinet lacked objectively reasonable grounds to believe a national emergency existed. 

While counsel for the government still needs to review the decision and weigh a final appeal to the Supreme Court of Canada, the FCA’s ruling currently stands as the definitive interpretation of the act’s various thresholds. Consequently, Canada is emerging as a notable exception to the regional drift toward emergency powers, owing to decisive judicial interventions that have reasserted statutory limits on executive power.

The Supreme Court’s consideration of Trump v. Slaughter raises more than a dispute over agency removal protections. In the accompanying Lawfare article, Michael R. Dreeben examines whether overruling Humphrey’s Executor might be counterbalanced by renewed limits on congressional delegation. ISSE’s analysis builds on that doctrinal discussion to explore a related structural question: how weakening agency independence could reshape the architecture of emergency governance. Together, the pieces illuminate how shifts in administrative design may alter not only separation-of-powers doctrine, but also the institutional channels through which exceptional authority is exercised.

Summary: “Sovereign is he,” wrote the German political theorist Carl Schmitt in 1922, “who decides on the exception.” The opening line of Political Theology was meant to shock even a century ago. In a liberal democracy, after all, sovereignty rests in “the people,” not in a “he” who “decides” on an “exception.” But Schmitt is the great prophet of liberal breakdown. He understood liberalism as an Enlightenment project that would not survive the modern era of mass industry, mass media, and mass politics. The liberal state runs smoothly on its rails of law and norms until it encounters the “exception”—a strike, a beer-hall putsch. Then, and only then, when someone (some “he”) steps forward to fill the vacuum with action (the decision) do we discover where true power—that is, sovereignty—lies. At the moment of crisis, the flimsy structure of liberal normativity collapses and power reveals itself. Schmitt was the twentieth century’s own Thomas Hobbes. Perhaps we would regard him today as the preeminent rival of Jürgen Habermas or John Rawls—the great liberal thinkers of the twentieth century—had he not, at the decisive moment of his career, welcomed, celebrated, and justified the Leviathan of his own day: Adolf Hitler.

It is a safe bet that Donald Trump had not read Political Theology when he declared his own version of a state of exception on January 20. Trump did not need an actual crisis in order to issue a torrent of executive orders usurping the independence of federal agencies, preempting the role of Congress, threatening the press, mobilizing the armed forces against immigrants, etc. As Trump himself put it, “He who saves his country does not violate any law.” He had filled the vacuum with decisive acts. Whether Trump will turn out to be “America’s Hitler,” as Vice President J.D. Vance once suggested before changing his mind, he is a kind of fulfillment of Schmitt’s dire expectations.

Until very recently we would have said that history had proved Schmitt wrong. In the decades after the Second World War, Germany, Japan, Italy, Spain, Portugal, and other autocratic powers made a peaceful transition to liberal democracy. Europe became, as the pundit and historian Robert Kagan put it, “a Kantian paradise.” Now we have to wonder if Schmitt’s dark prophecies were merely premature, and it was not the industrial but the post-industrial era that put the quietus to liberalism.

This is Carl Schmitt’s moment. In the past year, two New York Times columnists have accused Trump and his followers of borrowing from Schmitt’s playbook. J.D. Vance has insisted that, on the contrary, it is liberals who share Schmitt’s fixation with raw power.