Institute for the Study of States of Exception - Under Exception, Issue 02, November 3, 2025
UNDER EXCEPTION
It’s closer than you think.
ISSUE 02
November 3, 2025
Dear Readers,
More and more, the boundaries between necessity and abuse are being tested. What begins as an emergency measure can quickly become the new normal. At ISSE, our task is to keep those boundaries visible—to remind ourselves and others that vigilance is not cynicism, but our civic responsibility.
Thank you for joining us as we build this important community of readers, researchers, and concerned citizens who refuse to look the other way.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE ANNOUNCEMENTS
Upcoming Office Hours: During our next Office Hours session on Thursday, November 23, Jim Petrila (retired from the Central Intelligence Agency in late 2018) will lead a discussion on the IEEPA tariffs case following the November 5 oral arguments at the Supreme Court. While at CIA, Jim practiced in the Office of General Counsel for twenty-five years. More information on the IEEPA case and the upcoming oral arguments can be found on our website.
Podcast Coming Soon: ISSE is launching the first episode of our upcoming podcast series in November 2025. Stay tuned for more information on the podcast’s first guest and topic of discussion.
GLOBAL EVENTS
What to Look For in the November 5 Supreme Court Arguments on the IEEPA Tariffs (October 31, 2025). On November 5, the U.S. Supreme Court will hear V.O.S. Selections, Inc. v. United States, a pivotal case testing whether the President can use emergency powers under the International Emergency Economic Powers Act (IEEPA) to impose tariffs. The tariffs—framed as national security responses to fentanyl trafficking and trade deficits—could raise over $2 trillion in import taxes over the next decade. The outcome will determine whether such sweeping trade actions fall within the President’s emergency authority or encroach on Congress’s constitutional power to levy taxes and duties.
The IEEPA Tariffs Are Based on Pretext (Lawfare, October, 2025). In April, President Trump declared the U.S. trade deficit a national emergency and imposed the highest tariffs in a century under the International Emergency Economic Powers Act (IEEPA). With three courts having ruled the move unlawful and a Supreme Court appeal pending, legal scholars are questioning the basis of the declaration. Writing for Lawfare, Stratos Pahis argues that the trade deficit does not constitute an “unusual and extraordinary threat” and that the case offers an opportunity to clarify limits on presidential economic powers.
PODCASTS & VIDEOS
Lawfare Daily: Bob Bauer and Liza Goitein on Emergency Powers Reform (Lawfare Daily, September 2024). In this Lawfare Daily episode, Bob Bauer and Liza Goitein join host Kevin Frazier to examine the scope of presidential emergency powers under the National Emergencies Act, IEEPA, and the Insurrection Act. The discussion explores bipartisan efforts to reform these authorities and restore congressional oversight.
Can Emergency Powers Be Leveraged to Create Change Beyond a Crisis? (Berkeley Law Voices Carry, December 2024). In this Voices Carry episode, Professors Katerina Linos and Elena Chachko discuss their paper “Emergency Powers for Good,” arguing that emergency authorities—often linked to overreach—can also drive legitimate and lasting reform. The conversation highlights ongoing scholarly debate, including critiques and responses in the Yale Journal on Regulation and Lawfare.
ACADEMIC LITERATURE
Emergency Powers for Good (William and Mary Law Review, October 2024). In this article, Berkeley Law Professors Elena Chachko and Katerina Linos argue that emergency powers—typically viewed as threats to the rule of law—can under certain conditions be harnessed for legitimate and transformative reform. Comparing U.S. and EU cases, they outline a framework emphasizing transparency, consensus, and non-discrimination as safeguards for the responsible use of such powers.
Locke and the State of Exception: Towards a Modern Understanding of Emergency Government (de Wilde, October 2010). Marc de Wilde traces the modern “state of exception” back to John Locke’s theory of emergency prerogative, arguing that today’s constitutional orders still wrestle with the same tension between necessity and abuse. His analysis highlights how efforts to defend democracy through exceptional powers can, paradoxically, endanger it.
The United Nations and States of Exception (Szymanski, 2010). Charles F. Szymanski examines how international law seeks to restrain the use of states of exception—and whether the United Nations itself operates beyond such limits. The article explores how emergency powers, both within nations and international institutions, risk undermining the very legal orders they aim to protect.
States of Exception and Their Targets: Racialized Groups, Activists, and the Civilian Population (Codaccioni, 2020). Vanessa Codaccioni traces France’s long history of emergency rule from the Algerian War to the present, revealing how states of exception have disproportionately targeted racialized groups, activists, and civilians. She situates these practices within both colonial and metropolitan traditions of repression, showing how exceptional powers have become normalized across French governance.
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