Institute for the Study of States of Exception - Under Exception, Issue 06, January 22, 2026
UNDER EXCEPTION
It’s closer than you think.
ISSUE 06
January 22, 2026
Dear Readers,
Across courts, constitutions, and crises, this issue examines how exceptional power is increasingly asserted not through declared emergencies, but through ordinary legal and political mechanisms. From recent U.S. judicial efforts to place limits on expansive claims of executive authority, to the use of force abroad without clear legal justification, the materials highlighted here trace how the “exception” can be embedded within routine governance—shielded from review, normalized through practice, and justified after the fact.
Our featured conversations and scholarship deepen this inquiry, exploring the historical roots of emergency rule, the dangers of its permanence, and the ways accountability erodes when extraordinary measures lose clear temporal, legal, or moral boundaries. Together, these pieces reflect ISSE’s core concern: that safeguarding the rule of law today requires recognizing not only dramatic invocations of emergency, but also the quieter legal shifts that allow exceptional power to endure.
Looking ahead, ISSE will soon transition delivery of these biweekly summaries to Substack, making it easier for readers to follow, share, and engage with our work.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE ANNOUNCEMENTS
Upcoming Office Hours: The next ISSE Office Hours session will be at 1300 Eastern Time on Thursday, February 19, 2026. To join the Office Hours mailing list, sign up at https://www.statesofexception.org/officehours. We will send the Google Meet meeting details to all list members in advance of the meeting. As always, please feel free to send any suggestions for Office Hours discussion topics to officehours@statesofexception.org.
GLOBAL EVENTS
Judicial Limits on Exceptional Executive Power: Two Recent U.S. Court Decisions. Two late-December U.S. court decisions temporarily checked claims of extraordinary executive authority, including a ruling blocking enforcement of a security-clearance revocation and a Supreme Court decision letting an injunction stand against federalizing National Guard units for deployment under 10 U.S.C. § 12406. ISSE highlights that neither dispute hinged on a declared emergency; instead, both reflect an effort to shield entire domains of presidential action from judicial review, embedding the “exception” in ordinary constitutional interpretation.
ISSE Explainer: When Executive Power Becomes Exceptional—Unitary Executive Theory as a State of Exception. ISSE examines how recent disputes over security-clearance revocations and the attempted federalization of National Guard units illuminate a maximalist “unitary executive” theory that would place whole categories of presidential action beyond meaningful legal review. This article explains how the theory can operate as a state of exception without any declared emergency, by baking extraordinary discretion into constitutional interpretation itself.
ISSE Statement on the U.S. Capture of Nicolás Maduro. ISSE finds that the January 3 U.S. military operation that seized Nicolás Maduro and his wife represents a significant departure from established international legal constraints on the use of force. The statement notes that non-recognition does not confer authority to act militarily and that, absent Security Council authorization, self-defense, or Venezuelan consent, the operation violates the U.N. Charter—highlighting the risks of normalizing exceptional executive action.
PODCASTS & VIDEOS
State of Emergency, with Dr. Maciej Wilmanowicz (Common Sense Generation, November 2024). In the first episode of this two-part interview, Dr. Wilmanowicz traces the modern “state of emergency” to Roman models of exceptional authority and the justification of salus populi and necessitas. He then explores the paradox of “legalizing” emergency powers in liberal democracies—where governments often avoid formal declarations (including during COVID-19), fueling constant regulatory change and blurring who decides when exceptional measures are justified and who can hold power to account.
Permanent State of Exception, with Dr. Maciej Wilmanowicz (Common Sense Generation, November 2024). In the second half of this two-part interview, Dr. Wilmanowicz unpacks Giorgio Agamben’s claim that modern societies increasingly live in a “permanent state of exception,” where emergency measures become the norm rather than the temporary response. The episode traces how public compliance can shift into questioning as proportionality becomes clearer, and it connects today’s “legislative inflation” and debates over the common good, immigration, and liberal-democratic self-preservation to the deeper moral question of individual responsibility within authoritarian drift.
ACADEMIC LITERATURE
The threshold of emergency: sovereign power, constitutional change and the spectre of Civil War in 1938 Romania (Cercel, 2025). In this piece, Cosmin Cercel argues that emergency powers often operate less as a temporary suspension meant to restore “normality” and more as a legal–political practice that can transform constitutional order. Using Romania’s 1938 shift into King Carol II’s royal dictatorship as a case study—grounded in archival material from Corneliu Zelea Codreanu’s trial and related proceedings—this article traces how prolonged emergency measures helped recast foundational categories in criminal and constitutional law and paved the way for authoritarian rule.
Unconstitutional States of Emergency (Bjørnskov et al., 2022). Using a new dataset of 853 emergency declarations across constitutional systems, the authors identify 115 as unlawful—cases where emergency practice diverged from constitutional rules. They find that autocratic governments are more likely than democratic governments to violate constitutional emergency provisions, and that requiring second-chamber approval is associated with a higher likelihood that an emergency declaration is unconstitutional.
Governance of emergency powers and accountability in Indonesian disaster management (Ayuni et al., 2025). This paper evaluates Indonesia’s disaster-management regime against core emergency-law principles and finds that extraordinary authority is weakly constrained—especially through limited legislative involvement, thin oversight, and unclear time limits that enable repeated extensions. The authors recommend tightening statutory deadlines and strengthening accountability mechanisms, including clearer oversight and budgeting controls.
ADDITIONAL RESOURCES
The colonial origins of the ‘permanent state of exception (International Affairs Blog, June 2021). This piece examines how successive U.S. presidents have increasingly relied on emergency powers, creating a “ratchet effect” in which exceptional authority expands over time and rarely fully recedes. The analysis explores how this pattern erodes public trust in institutions and weakens constitutional checks by normalizing executive discretion in times of crisis.
EU Crises and Emergencies: What’s in a Name? — EmergEU Working Paper Series (November 2025). This working paper distills an interdisciplinary Maastricht University-hosted workshop on how the EU defines “crisis” and “emergency”—and why those labels matter for governance, legitimacy, and integration trajectories. It underscores a core legal tension: unlike many national systems, the EU Treaties contain no general emergency clause, pushing the Union toward a patchwork of emergency competences and flexible uses of ordinary Treaty bases.
“The Schmittian inheritance” (Engelsberg Ideas, December 2025). Daniel Johnson traces the renewed political afterlife of Carl Schmitt’s critique of parliamentary democracy—especially the claim that “the sovereign is he who decides on the exception”—in today’s debates over sovereignty, executive power, and the constraints of international law. The essay warns that ideas once used to justify emergency rule in Weimar Germany are resurfacing across contemporary illiberal movements and “strong leader” politics.
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