Emergency powers are not inherently dangerous. They exist so governments can respond to real crises, from pandemics to wars. The danger comes when the guardrails meant to contain those powers are quietly dismantled, and the exception slowly becomes the rule.
In the second episode of the ISSE podcast, co-founder Matt Calvin sits down with Jim Petrila, ISSE advisory board member and director of the Institute’s Legal Action Program. Drawing on a 30-year legal career that includes 25 years in the CIA Office of General Counsel and service at the National Security Council, Jim explains what states of exception are, why ISSE studies them so narrowly, and how courts, Congress, and the executive branch each play a role in either holding the line or letting it slip.
The conversation moves from the Ebola response of 2014 and 2015 to the Roberts Court and the shadow docket, the revival of the Alien Enemies Act, the IEEPA tariffs case, and the steady weakening of the Voting Rights Act. Throughout, Jim returns to a hopeful point: people concerned about the abuse of emergency powers are not alone, and understanding how these mechanisms actually work is the first step toward defending democratic norms.
About Jim
Jim Petrila serves on the ISSE Advisory Board and directs the Institute’s Legal Action Program. He is also an adjunct professor of law at the The George Washington University Law School. His 30-year legal career includes 25 years in the Office of General Counsel at the Central Intelligence Agency, where he managed and oversaw attorneys in the Operations Directorate and advised on counterterrorism and technical collection, as well as service at the National Security Agency and as deputy legal advisor at the National Security Council from 2013 to 2015, where he was legal advisor to the Ebola task force. He holds a JD from the University of Virginia, a master’s in Russian history from Stanford, and a BA in Russian studies from Knox College.
In this episode
Why emergency powers exist in the first place, and why they are not inherently a problem
The line ISSE draws between states of exception and broader democratic erosion, and why ISSE’s 501(c)(3) status keeps its work narrow, academic, and non-partisan
What the Legal Action Program does, including amplifying legal scholarship and creating openings for law students and interns
How dysfunction across all three branches compounds: Congress ceding oversight, the executive stretching thin legal opinions, and the courts validating the result
The Roberts majority and the shadow docket as tools that can let courts act as a “super legislature”
The revival of the centuries-old Alien Enemies Act and the problem of courts “looking behind” a presidential declaration of invasion
Trump v. Hawaii and the IEEPA tariffs case as contrasting examples of judicial deference
The dismantling of the Voting Rights Act and the blurred line between political and racial gerrymandering
Why institutional integrity, and faith in institutions, is the real guardrail
A call to action for law students, scholars, and concerned citizens
Chapters
00:00 — Introduction and Jim’s background
02:01 — Emergency powers and the government’s Ebola response
04:55 — ISSE’s narrow focus on states of exception
11:55 — Inside the Legal Action Program
18:12 — Dysfunction across the three branches
23:52 — The Supreme Court and democratic erosion
25:05 — Immigration enforcement and the deportation pipeline
29:09 — Emergency authorities and the Alien Enemies Act
34:00 — Judicial deference in national security cases
37:27 — The erosion of the Voting Rights Act
41:43 — Tribal loyalty and political hypocrisy
46:06 — The role of institutions in a democracy
50:33 — How to get involved
Resources mentioned
Institute for the Study of States of Exception (ISSE) website.
The Steady State, where Jim also writes.
Ernst Fraenkel, The Dual State
Trump v. Hawaii (2018)
International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701
Alien Enemies Act, 50 U.S.C. §§ 21 to 24
Louisiana v. Callais, the voting rights and redistricting case discussed
Brennan Center, voting rights and gerrymandering research: https://www.brennancenter.org/our-work/research-reports/voting-rights-and-gerrymandering
Steve Vladeck’s writing on the Supreme Court’s “shadow docket”
Get involved
ISSE is actively looking for contributors, and Jim is especially keen to hear from law students and scholars writing on states of exception and emergency authority. If you have a paper or law review article in this space, or simply want to get involved, send us an email to outreach@statesofexception.org. ISSE also hosts monthly Office Hours, a live webinar where the community can dial in and ask questions directly.
