Oral arguments are scheduled for November 5, 2025, in V.O.S. Selections, Inc. v. United States, also known as the Tariffs Case or the International Emergency Economic Powers Act (IEEPA) case. The fundamental issue at stake is whether the President has authority under IEEPA’s grant of emergency powers to rewrite the United States tariff schedule. While IEEPA grants the President broad authority to “regulate . . . importation or exportation” of property as necessary to address “unusual and external threat(s)”, IEEPA does not specifically grant the authority to impose tariffs. The ability to impose tariffs has traditionally been viewed as a core aspect of Congress’s Article 1 authority to collect taxes, duties, imposts and excises, and to raise revenue.

On April 2, President Trump declared that the U.S. trade deficit in goods was a national emergency and raised tariffs to the highest level in 100 years to address it. Three courts have now ruled that those tariffs are illegal, and an appeal by the government will soon be heard by the Supreme Court. As I write elsewhere, the decisions striking down the tariffs are persuasive and should be upheld. But each also ignores a key question: whether the U.S. trade deficit constitutes an “unusual and extraordinary threat” that justifies emergency measures in the first place.

Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.

Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis severity, transparency, and time limits, we argue that broad consensus and a reformulated non-discrimination requirement are essential to the proper use of emergency powers for societal transformation.

This episode features UC Berkeley Law Professors Katerina Linos and Elena Chachko discussing their paper in the William & Mary Law Review, “Emergency Powers for Good.” In the article and a blog post on “Lawfare,” they argue that emergency powers — often associated with overreach and authoritarianism — can be used in legitimate and transformative ways.

The political and legal problem of a state of exception, whereby a state deviates from its normal constitutional and legal order in response to a real or perceived emergency, has generated much debate. Critics contend that the use of a state of exception really is an exception that swallows the rule, with the potential to corrode the entire legal order. The first part of this article explores international law’s attempt to put limits upon countries' use of state of exception, as enforced by the Human Rights Committee of the United Nations. Secondly, the author looks at the broader question of whether or not the U.N., as a super-state, itself uses states of exception, and what, if any, limits are placed upon it.

Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, and Liza Goitein, Senior Director of Liberty & National Security at the Brennan Center, join Kevin Frazier, Assistant Professor at St. Thomas University College of Law and a Tarbell Fellow at Lawfare, to review the emergency powers afforded to the president under the National Emergency Act, International Emergency Economic Powers Act, and the Insurrection Act. The trio also inspect ongoing bipartisan efforts to reform emergency powers.

The article deals with the history of state exception in France since the Algerian War. From this point of view, what is happening in France falls into two overlapping genealogies of exception: a colonial genealogy of exceptionalist logics, in which Algeria plays a central part; and a more metropolitan genealogy of political repression that could be traced back to the monarchy. The author thus divides her remarks into three sections. First, she addresses the double genealogy of exception in France; second, the discriminatory character of the exception; and last, the normalization of exception.

Modern states have almost without exception developed constitutional arrangements to protect themselves from threats to their continued existence. The most common of these arrangements is the state of exception. The state of exception is proclaimed when the constitutional order as such is at stake, for example, at the threat of foreign invasion, civil strife, or a large-scale terrorist attack. The proclamation of the state of exception leads to a suspension of rights and a concentration of power in the executive, enabling it to respond quickly and effectively to the threat. Although the state of exception may sometimes be necessary, a problem is that those invested with emergency powers may themselves become a threat to the constitutional order meant to be defended. In fact, modern history shows numerous examples of governments using the state of exception as a pretext for violating rights or even for establishing a more authoritarian regime.

Greetings! It is with deep humility and a strong sense of purpose that I formally welcome you to the Institute for the Study of States of Exception (ISSE). ISSE is a 501(c)(3) nonprofit organization dedicated to advancing scholarship and dialogue on the misuse and abuse of states of exception worldwide–scenarios when laws or even entire constitutions are suspended under purported emergency circumstances, but in reality are intentionally framed improperly to enable democratic backsliding.

This book addresses the relevance of the state of exception for the analysis of law, while reflecting on the deeper symbolic and jurisprudential significance of the coalescence between law and force.

The concept of the state of exception has become a central topos in political and legal philosophy as well as in critical theory. The theoretical apparatus of the state of exception sharply captures the uneasy relationship between law, life and politics in the contemporary global setting, while also challenging the comforting narratives that uncritically connect democracy with the tradition of the rule of law. Drawing on critical legal theory, continental jurisprudence, political philosophy and history, this book explores the genealogy of the concept of the state of exception and reflects on its legal embodiment in past and present contexts – including Weimar and Nazi Germany, contemporary Europe and Turkey. In doing so, it explores the disruptive force of the exception for legal and political thought, as it recuperates its contemporary critical potential…

In this episode of “It’s the Law,” UC Berkeley School of Law Dean Erwin Chemerinsky breaks down the answer and explains that the Constitution is meant to limit what the government can do, and those limits apply to emergencies as well…

A week ago, President Donald Trump and members of his cabinet announced a takeover of law enforcement functions in Washington, D.C. using three tools: deployment of elements of the D.C. National Guard (and National Guard troops from several cooperating states as well), invocation of a statutory emergency power to requisition the services of the city’s Metropolitan Police Department, and a surge of federal law enforcement to the city’s streets, including Department of Homeland Security, Federal Bureau of Investigation, and other federal agents. Over the past week, 800 D.C. National Guardsmen have been mobilized for operations in the city, with hundreds more state National Guardsmen on their way, and 500 newly deployed immigration and other federal agents are patrolling the streets or have set up checkpoints. At the same time, the district and the White House have engaged in a power struggle over control of the city’s police department…

National emergencies are critical tools for addressing sudden and unforeseen events — often situations that require an immediate, decisive response to address. In our constitutional system, a national emergency declaration allows the president to temporarily use certain authorities that Congress has previously approved. Congress delegated this authority to the president because it sometimes cannot act quickly enough to respond to certain kinds of situations, such as natural disasters and public health emergencies. Upon declaring a national emergency, over 130 special authorities — such as the authority to shut down communications facilities or draw down equipment from national defense stockpiles— are immediately unlocked that enable a president to intervene in ways that are unavailable to them outside of an emergency declaration.

If you want to learn about economic sanctions, which are the most common of the president’s emergency powers, and one non-conflict way to exert pressure on a foreign power, check out New Hampshire Public Radio’s Civics 101 podcast episode on emergency powers. You’ll also learn about certain military powers the president has under an emergency declaration. Emergency powers are designed for when plans need to change, and fast, by allowing the president to override certain Constitutional provisions in a time of crisis. But in the last century, national emergencies have gone from a rarity to a tool that presidents use dozens of times while in office. We talk about what a president can (and cannot) do during a state of emergency, and how Congress has tried to put checks on that power, with help from Kim Lane Scheppele, author of Law in a Time of Emergency…

Emergency powers have existed in countries around the world for centuries. Their purpose is simple: to temporarily enhance executive power during unexpected crises that are moving too fast for Congress to respond. The Brennan Center’s original research cataloged 123 statutory authorities that become available to the president when he declares a national emergency. Many are measured and sensible, but others seem like the stuff of authoritarian regimes: giving the president the power to take over domestic communications, seize Americans’ bank accounts, and deploy U.S. troops to any foreign country. Given how broad these powers are, it is critical to have adequate safeguards in place to prevent abuse…

The terrorist attacks of September 11, 2001, and the ensuing “war on terrorism” brought to center stage issues that have previously lurked in a dark corner at the edge of the legal universe, such as how a constitutional regime should respond to violent challenges. This question is as ancient as the Roman Republic and as new as the realities wrought by the terrorist attacks of September 11th. It has faced nations embroiled in wars against external enemies, as well as those responding to violent movements within their own borders. It has haunted countries powerful and weak, rich and poor. The dilemma confronting a constitutional democracy having to respond to emergencies has been famously captured by Abraham Lincoln’s rhetorical question: “[A]re all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?” Yet, prior to the attacks in New York, Washington, and Pennsylvania, violent crises and emergencies and their implications for legal systems had not attracted much attention in legal scholarship…

“Plan Bukele” Goes Global: The Western Hemisphere is split over the extreme security policies of Salvadoran president Nayib Bukele. To his supporters, Bukele’s efforts at curbing violent crime in what was once one of the most notorious hotbeds of gang activity have been nothing short of herculean. To his detractors, the self-proclaimed “coolest dictator in the world” has exploited public security efforts to establish an ironclad grip on El Salvador’s political and civic space, with corrosive effects on the country’s democracy…

This article advocates the use of a “global conjunctural frame” to explore the martial law crisis provoked by the actions of South Korean President Yoon Seok-yeol in December 2024. It does so by tracking ongoing discussions among progressive intellectuals in South Korea and the contributors to this thematic section about the nature of Yoon’s attempted self-coup and the structures that enabled it with a focus on how the event and its aftermath resonates with notions of late or untimely forms of fascism. The article shows how far-right reactions involve a disturbing reworking of an enduring Cold War politics across global, national, and everyday scales to amplify resentments and antagonisms brought apart partly through structural changes associated with neoliberalism. It then reviews some of the ideas about the creation of a Seventh Republic that have emerged during Yoon’s impeachment and that advocate constitutional reforms to address this troubling conjuncture and recognize the new solidarities formed in defending democracy in South Korea…

The COVID-19 pandemic has led a large range of European governments to rely on emergency powers to try to contain the pandemic. While emergency legislation grants the executive with more extensive powers to handle an immediate threat to the survival of a community, the extent of such powers, their modalities of activation as well as the monitoring and other roles of counterpowers vary from one country to the next. This chapter analyses the diversity of practices and legal provisions hidden behind the reference to a “state of emergency.” It first shows that the legal basis of such provisions differs. While some governments activated constitutional provisions, others relied on pre-existing crisis-management legal frameworks. Second, the timing and duration of emergency measures ranged from 65 days (Estonia) to 861 (France). It then assesses whether differences in the legal framework used translated into differences in the stringency of the measures introduced. On the one hand, state of emergency provisions shield democracy against a concentration of powers in the hands of the executive better than disaster-management legislation does. On the other hand, the activation of emergency powers also coincides with more stringent restrictions of fundamental rights. In strengthening legal preparedness to future crises, policy makers need to be particularly cautious in devising legal arsenals that maintain high levels of democratic governance and oversight in crisis times…

Martial law has long been mired in confusion in the United States, but that has not always stopped state and federal officials from declaring it. Indeed, the Brennan Center has identified 68 declarations of martial law across U.S. history. Our research into these events is presented in the appendix below. It accompanies our report on martial law, which delves into the history of the concept and the legal principles that govern it.

We have organized the appendix by category based on the type of event that precipitated martial law. For each entry, we have included key information about the declaration such as the date, duration, location, related litigation, and who issued it. Unfortunately, the historical use of martial law in the United States is poorly documented and under-studied. For this reason, some of the entries in the appendix are incomplete. We have also chosen to exclude any event where there is any doubt as to whether martial law was declared…