Institute for the Study of States of Exception - Under Exception, Issue 07, February 13, 2026
UNDER EXCEPTION
It’s closer than you think.
ISSUE 07
February 13, 2026
Dear Readers,
These materials trace how emergency governance is no longer episodic but increasingly routine, spanning contemporary U.S. executive practice, Latin American security regimes, and historical European precedents.
The global events highlight how repeated emergency framing—whether through migration, sanctions, or national security—can shift major policy choices into exceptional legal terrain with weakened oversight.
The academic literature deepens this picture by showing how prolonged emergencies can deliver short-term order or security while steadily eroding civil liberties, democratic legitimacy, and the boundary between law and force.
The books and reviews situate these developments within a longer theoretical and historical arc, emphasizing how exceptions tend to harden into governing paradigms rather than dissolve once crises pass.
Across all sections, the unifying warning is that the normalization of emergency power poses a structural challenge to accountability, rights, and the rule of law—even when exercised through ostensibly legal means.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE ANNOUNCEMENTS
Upcoming Office Hours: Law and the Exception: Towards a New Paradigm: The next ISSE Office Hours session will take place at 1300 Eastern Time on Thursday, February 19, 2026. Join us for a special session with Gian Giacomo Fusco and Przemysław Tacik, authors of Law and the Exception: Towards a New Paradigm (Routledge, 2025). Fusco and Tacik propose a paradigm shift in how we understand states of exception, arguing that exceptionality now extends well beyond formal emergency declarations—as the COVID-19 pandemic demonstrated, legal systems can disguise the exceptional as the normal. Don't miss this conversation about the hidden authoritarian drives within liberal constitutionalism and why rethinking the boundaries of emergency powers matters more than ever.
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
ISSE Explainer: The 2026 U.S. National Emergency Declaration on Cuba (ISSE, January 2026). On January 29, 2026, Donald J. Trump issued an executive order declaring a national emergency regarding Cuba and invoking NEA/IEEPA authorities to create a tariff mechanism that can penalize countries that directly or indirectly supply oil to Cuba. ISSE’s explainer underscores that this is emergency economic power used as extraterritorial coercion—and that its significance lies not only in the Cuba policy itself, but in the broader pattern of serial emergency declarations becoming routine tools of governance.
2025: Trump’s year of ‘emergency’, ‘invasion’ and ‘narcoterrorism’ (Al Jazeera, December 2025). This piece reviews Donald Trump’s repeated use of “emergency” framing in 2025—from a border “invasion” to “narcoterrorism”—to support expansive assertions of executive authority across immigration, trade, and security policy. It presents this emergency rhetoric as a high-stakes legal and political strategy that can move major policy decisions into exceptional terrain and strain ordinary checks and accountability.
ACADEMIC LITERATURE
Bukele’s Leadership: Transforming El Salvador Through Iron Fist Policies and Social Media Power” (Dananjaya, 2025). Research by Muhammad Praditya Dananjaya connects El Salvador’s prolonged “state of exception” under Nayib Bukele—alongside institutions like CECOT—to steep drops in violence alongside mounting civil-liberties and rule-of-law concerns. The article also argues that Bukele’s social-media “digital populism” shifts legitimacy from democratic process to performance, helping normalize exceptional governance.
An Overview of Federal Emergency Powers (New York University Journal of Law & Liberty, July 2022). Patrick J. D. Griffin’s article contends that the U.S. Constitution is best read as permitting broad, flexible federal emergency power, with the most meaningful limits coming from structural checks like separation of powers and the political process. He then flags weaknesses in the statutory emergency framework that can leave extraordinary authority under-constrained in practice.
The “Right” Side of the Law: State of Siege and the Rise of Fascism in Interwar Romania (Fascism: Journal of Comparative Fascist Studies, January 2013). In this article, Cosmin Sebastian Cercel links the post–World War I “state of siege” in Romania to the rise of fascist politics, challenging the idea that fascism’s appeal was primarily “revolutionary” rather than legally mediated. Drawing on Giorgio Agamben and Walter Benjamin, he shows how emergency rule can reorganize the boundary between law and force in ways that make authoritarian governance feel lawful.
The Right to Freedom of Expression of Political Views in the Context of Armed Conflict: Current Human Rights Challenges (Law and Society, January 2025). Research by Olha Balynska and Tetiana Slinko uses Ukraine under martial law to examine how wartime “security” restrictions can narrow political expression, from media blocking to heightened risks for journalists. Grounded in ICCPR Article 19 and ECHR Article 10, the article argues for clearer procedures and stronger independent oversight to keep emergency limits proportionate and accountable.
THE BOOKSHELF
States of Exception: Theory and Practice (Autografia, April 2025). Edited by Antonio Gasparetto Júnior, this volume offers a cross-disciplinary guide to “states of exception,” tracing the concept’s historical development and the ways crisis governance can slip into enduring practices that suspend rights and strain the rule of law. It brings together perspectives from politics, law, history, philosophy, and sociology to clarify the term’s historiography and its contemporary relevance—and the full text is available online.
Book Review by Vik Kanwar: State of Exception by Giorgio Agamben (International Journal of Constitutional Law, July 2006). Kanwar presents State of Exception as a stark warning that “exceptional” measures can become the new normal, and he reads Agamben’s provocation as ethically serious even when it relies on hyperbole and paradox. The review spotlights three pressure points: Agamben’s historical claim about iustitium as the root of emergency practice, public-law scholarship that complicates the book’s “ignored by jurists” framing, and the notable downplaying of Agamben’s earlier “spaces of exception” analysis in favor of a broader ethical thesis.
Law and the Exception: Towards a New Paradigm (Brill, 2021). Edited by Gian Giacomo Fusco and Przemysław Tacik, this volume brings together legal theory, political philosophy, and international law to rethink the “exception” as more than a temporary emergency—mapping the doctrines, institutions, and practices that allow extraordinary measures to become routine. Across its essays, the book tracks how states use crisis logics to redraw the boundaries of legality, rights, and accountability, offering a useful framework for readers trying to diagnose when emergency governance hardens into a permanent paradigm.
ADDITIONAL RESOURCES
It’s Carl Schmitt’s Moment (Democracy: A Journal of Ideas, Summer 2025). In this essay, James Traub argues that Carl Schmitt is newly relevant because contemporary politics increasingly treats crisis as a reason to concentrate sovereign power in decisive executive action. The piece also warns that Schmitt’s appeal is inseparable from the authoritarian implications of “exception” thinking—and from his own role in legitimating Nazi rule.
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