Under Exception, Issue 11
It's closer than you think...
April 29, 2026
Dear Readers,
From ongoing litigation before the U.S. Supreme Court to the operationalization of emergency frameworks in places like El Salvador, the boundary between temporary necessity and sustained governance continues to blur.
This edition brings together a set of developments that reflect that trajectory from multiple angles. We examine how courts are being asked to assess the procedural and factual foundations of executive action, how states are preparing for crisis governance in advance, and how emergency frameworks can intersect with other policy domains, including migration, security, and economic regulation. At the same time, the academic literature included here highlights the structural and theoretical dimensions of these developments, from fragmentation in multi-level systems to the normalization of exceptional authority.
As always, ISSE remains focused on identifying where emergency powers depart from their stated purpose and where safeguards (legal, institutional, or political) are tested or eroded. We aim to provide a platform that not only tracks these developments globally, but also situates them within a broader framework of constitutional governance, accountability, and the long-term implications of exceptionality.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE Announcements
Upcoming ISSE Office Hours (date/time TBD; targeting May 21, 2026): We will announce the topic and confirm scheduling details in early May. The current plan is to hold the session on Thursday, May 21, with a focus on a range of ongoing cases before the U.S. Supreme Court, as well as cases likely to reach it. Final details will be shared next week.
Global Events
A curated selection of recent developments involving emergency powers and constitutional governance.
United States – Temporary Protected Status Termination Cases Test the Limits of Executive Power and Due Process (Jim Petrila, Legal Action Program Director, ISSE, April 2026). This article examines two major cases testing the termination of Temporary Protected Status (TPS) and the limits of executive discretion in U.S. immigration policy. As the U.S. Supreme Court prepares to hear arguments on Syria and Haiti designations, the litigation raises fundamental questions about whether statutory procedures and due process protections are being meaningfully applied. For ISSE, the cases highlight how emergency-adjacent authority can be used to produce large-scale legal consequences, with the Court’s decision likely shaping the balance between executive power and procedural constraint well beyond immigration law.
Republic of Estonia Government Office announces ILVES 2026 (LYNX 2026), one of Estonia’s largest crisis exercises (Government of Estonia, April 2026). This announcement highlights Estonia’s upcoming ILVES 2026 nationwide crisis exercise, a large-scale effort to test coordination across government, private sector, and civil society in responding to complex security threats. The exercise reflects a model of “comprehensive defense,” emphasizing rapid decision-making, information integrity, and continuity of essential services under conditions of disruption. For ISSE, it offers a useful example of how states prepare for crisis governance in advance, raising important questions about how such preparedness frameworks may shape, enable, or constrain the exercise of emergency powers in practice.
US/El Salvador: Deportees Forcibly Disappeared - Human Rights Watch (Human Rights Watch, March 2026). This report from Human Rights Watch documents cases of Salvadoran deportees from the United States who have been detained in El Salvador under conditions that may amount to enforced disappearance. Many individuals are reportedly held without access to counsel, judicial review, or information about their whereabouts, within the context of El Salvador’s ongoing state of emergency. For ISSE, the report illuminates how emergency frameworks, especially when combined with cross-border policy decisions, can create zones of diminished accountability where basic procedural protections are effectively suspended.
Additional Resources
Selected commentary and analysis relevant to the evolving law of emergency powers.
One Emergency After Another - Lawfare (Ben Diamond, April 2026). This piece from Lawfare examines the growing normalization of emergency powers in U.S. governance, drawing on Justice Robert Jackson’s warning that such authorities can “kindle emergencies” rather than simply respond to them. It highlights recent uses of statutes like IEEPA and other emergency tools to advance domestic policy goals, often in contexts where the underlying crisis is contested. For ISSE, the analysis points to a broader shift toward routinized emergency governance and the increasing importance of judicial scrutiny as a check on executive overreach.
U.S. Democratic Backsliding in Comparative Perspective - Carnegie Endowment for International Peace (McKenzie Carrier and Thomas Carothers, August 2025). This article analyzes democratic backsliding in the United States in comparative perspective, situating recent developments alongside cases such as Hungary, India, and Türkiye. It identifies a pattern of executive aggrandizement marked by efforts to consolidate control within the executive branch, weaken institutional checks, and constrain civil society. For ISSE, the analysis reflects how the expansion of executive authority, often justified in crisis or emergency-adjacent terms, can accelerate structural shifts in governance even where formal democratic institutions remain intact.
Academic Literature
Recent scholarship examining the theory and practice of emergency governance.
Crisis Management Extremes in Multi-Level Systems: Bosnia and Herzegovina (Maja Sahadžić, Publius, the Journal of Federalism, April 2026). This paper examines crisis management in Bosnia and Herzegovina’s highly fragmented, multi-level governance system, focusing on the 2014 floods and the COVID-19 pandemic. It finds that overlapping territorial and ethnic structures often hinder coordination, with substate entities exercising unilateral authority that limits collective response capacity. For ISSE, the analysis highlights how structural fragmentation can shape the exercise of emergency authority, constraining effective governance while creating conditions in which crisis responses may become uneven, contested, or locally driven.
States of Emergency in the Visegrad Group Countries (Anna Czyż, Polish Political Science Yearbook, March 2026). This paper analyzes the legal frameworks and political use of states of emergency across the Visegrad Group countries, comparing both formal regulations and real-world application. It finds a lack of a coherent regional model, with significant variation in how emergency powers are deployed and justified in response to perceived threats. For ISSE, the study highlights how emergency regimes can diverge from their formal legal purpose, particularly where they evolve into instruments for consolidating executive authority, as seen most clearly in Hungary.
Trump 47 and the Judicial Burdens of Presidential Unilateralism (Jasmine Farrier, PS: Political Science & Politics, April 2026). This paper examines the surge in presidential unilateralism in the U.S. during Trump’s second term and the resulting strain placed on the federal judiciary. It highlights how expansive interpretations of statutory and constitutional authority have generated extensive litigation, testing the capacity of courts, particularly the U.S. Supreme Court, to act as an effective check. For ISSE, the analysis points to the limits of judicial review in constraining executive power, especially when broad authorities have already been delegated and emergency-style decision-making becomes embedded in governance.
Human Rights in The Context of the State of Emergency: The Balance Between National Security and Fundamental Freedoms (Mihai Ștefănoaia, Proceedings of The International Conference on Social Sciences in the Modern Era, September 2025). This paper examines the tension between national security and fundamental rights during states of emergency, drawing on international law and comparative case studies. It analyzes how legal frameworks such as the European Convention on Human Rights and the ICCPR permit temporary derogations, while emphasizing principles like proportionality, legality, and non-discrimination. For ISSE, the paper highlights the persistent risk that emergency measures, once normalized, can erode democratic oversight and weaken the long-term protection of civil liberties.
Podcasts and Videos
Discussions and interviews exploring the legal and political dynamics of exceptional authority.
Emergency powers: Presidents unleashed? - Miller Center (University of Virginia Miller Center, April 2026). This video highlights a recent Miller Center conference examining the evolution and limits of U.S. presidential emergency powers in light of recent U.S. Supreme Court rulings and increased use of national emergency declarations. The discussion situates modern emergency governance within a broader institutional context, pointing to congressional dysfunction, judicial doctrine, and the long-term expansion of executive authority. For ISSE, the analysis within reflects how emergency powers have shifted from exceptional tools to routine instruments of governance, raising sustained concerns about their impact on constitutional balance and democratic accountability.
The Bookshelf
Key texts on emergency powers, exceptionality, and constitutional governance.
The End of Law - Political Theology and the Crisis of Sovereignty (Routledge, Mårten Björk and Tormod Johansen, December 2025). This book examines the foundations and limits of legal authority through a politico-theological reading of Gustav Radbruch, H. L. A. Hart, and Ernst-Wolfgang Böckenförde, each of whom grappled with the relationship between law, morality, and state power within the context of maintaining public order. It explores the tension between legal validity and moral legitimacy, arguing that law can remain formally valid while becoming substantively unjust. For ISSE, the analysis speaks directly to the deeper crisis of sovereignty and the conditions under which legal systems risk losing their normative grounding while continuing to exercise authority.
ISSE in the News
Recent interviews, commentary, and appearances involving the Institute.
Permanent Emergency: States of Exception and Democratic Erosion - ISSE speaks at King’s College London’s Centre for Statecraft & National Security (King’s College London, April 2026). ISSE representatives recently participated in a panel at King’s College London examining the global normalization of states of exception and their implications for democratic governance. The discussion brought together legal, operational, and academic perspectives to explore how emergency powers are used, when they become corrosive, and what constraints are necessary to preserve democratic legitimacy. This event reflected a major part of our core mission: advancing interdisciplinary analysis of how exceptional measures shape political systems, international order, and long-term governance trajectories.
About ISSE
The Institute for the Study of States of Exception tracks and analyzes the use and misuse of emergency powers around the world, providing research and analysis on how exceptional authority shapes modern governance.