Under Exception, Issue 12
It's closer than you think...
May 17, 2026
Dear Readers,
Over the past several weeks, ISSE participated in a series of international conferences and discussions across Europe focused on emergency governance, constitutional resilience, democratic stability, security, and technological disruption. Moving between conversations with legal scholars, policymakers, security practitioners, technologists, and civil society actors reinforced a central reality: questions surrounding exceptional authority are no longer confined to isolated crises or narrow academic debate. Instead, they increasingly sit at the center of contemporary governance across democratic societies.
What also became clear is that emergency governance today rarely appears solely through dramatic declarations or formally announced states of emergency. Increasingly, exceptional measures emerge incrementally through accelerated legal procedures, executive-driven crisis management, security frameworks, technological systems, administrative flexibility, and institutional practices that gradually reshape the relationship between the state, democratic accountability, and individual rights. In many cases, these changes persist long after the immediate crisis that justified them has faded.
This edition reflects those themes. The materials collected here examine emergency governance across a wide range of contexts, including constitutional crisis management in Central Europe, prolonged states of exception in El Salvador and Hungary, judicial power and democratic legitimacy in the United States, and broader debates surrounding risk, resilience, and constitutional order. Together, they illustrate why sustained comparative analysis on emergency powers, constitutional safeguards, and on the normalization of exceptionality, remains both necessary and urgent.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE Announcements
Upcoming ISSE Office Hours (11:00 Eastern; May 26, 2026): We will be updating our community on our recent attendance at several conferences, and what we learned at each. Those conferences included one entitled "Today's Emergencies and Wars - A Challenge to International Law and Constitutional Frameworks" which took place on May 4–5, 2026, in Sweden and was jointly organized by Uppsala University, the Swedish Defence University, and the International Association of Constitutional Law (IACL). We attended that event following our attendance at Kyiv Defense Tech Week, which was sponsored by Invest in Bravery, among several other groups. We also attended the Copenhagen Democracy Summit on May 12, and the Resilience Conference Copenhagen 2026 focused on defense, cybersecurity, and NATO readiness, which took place the day before. All of these events reinforced how rapidly questions surrounding emergency governance, democratic resilience, technological disruption, security, and constitutional order are converging globally, reinforcing the growing importance and urgency of ISSE’s mission at a moment when exceptional measures are increasingly shaping ordinary governance across democratic societies. During our Office Hours call we will also discuss ongoing litigation before the U.S. Supreme Court, as well as cases likely to reach it, which pertain to our work.
Global Events
A curated selection of recent developments involving emergency powers and constitutional governance.
U.S. Judicial Power and the Normalization of Exceptionality - Louisiana v. Callais (ISSE Analysis; May 2026). The United States Supreme Court’s decision in Louisiana v. Callais has sparked renewed debate over voting rights, judicial authority, and democratic legitimacy in the United States. While supporters argue the ruling constrains race-conscious districting practices, critics contend it will weaken Black political representation and accelerate redistricting changes across several Southern states. From an ISSE perspective, the case also illustrates how emergency-style procedures, compressed timelines, and exceptional governance mechanisms can increasingly shape ordinary democratic processes while remaining formally within constitutional frameworks.
Hungary: New Government Needs to Restore Rule of Law - Suspend Sovereignty Protection Office; End Rule by Decree; Restore Assembly Rights (Human Rights Watch; April 2026). This analysis from Human Rights Watch examines how emergency powers in Hungary evolved from temporary crisis measures into enduring instruments of governance under the leadership of Viktor Orbán. The report traces how migration, pandemic, and security-related emergency frameworks were layered, renewed, and repurposed over time, gradually weakening institutional checks, constraining political competition, and normalizing executive-driven governance within a formally democratic system. For ISSE, Hungary serves as a case study in the normalization of exceptionality. This report serves as one potential roadmap for the country’s new administration as it confronts the challenge of restoring democratic guardrails, rebuilding institutional independence, and unwinding emergency-derived governance structures that have become embedded in ordinary state practice.
Additional Resources
Selected commentary and analysis relevant to the evolving law of emergency powers.
El Salvador at the Crossroads: Crimes against Humanity under the Public Security Policy (Due Process of Law Foundation, et al.; Susana SáCouto, Claudia Martin, Gino Costa, José Guevara, and Santiago Canton; March 2026). This report by an international panel of legal and human rights experts concludes that serious abuses committed under El Salvador’s ongoing state of emergency may rise to the level of crimes against humanity. Examining allegations including arbitrary detention, torture, enforced disappearances, sexual violence, and political persecution, the study argues that emergency powers introduced in 2022 have evolved into a broader restructuring of governance that weakens democratic oversight and concentrates authority within the executive branch. The report’s findings align closely with ISSE’s focus on how prolonged states of exception can erode institutional safeguards, normalize extraordinary measures, and reshape constitutional order over time.
Academic Literature
Recent scholarship examining the theory and practice of emergency governance.
European Journal of Risk Regulation - Special Issue on Constitutional Risk Management in the V4 Countries - Forward (Zoltán Szente & Fruzsina Gárdos-Orosz; European Journal of Risk Regulation; February 2025). This Forward to the special issue of the Constitutional Law-focused European Journal of Risk Regulation examines how successive crises, including terrorism, migration, the COVID-19 pandemic, war, and climate change, have transformed scholarly and constitutional debates surrounding emergency powers and crisis governance across Europe. Drawing on a comparative research project focused on the Visegrad countries (Czech Republic, Hungary, Poland, and Slovakia), the editors explore how constitutional systems authorize exceptional powers, constrain executive authority, and balance democratic governance during periods of sustained crisis. This Substack issue includes the complete special edition: following this Forward, ISSE has also published all seven accompanying articles from the journal’s special issue as standalone entries, providing readers with the full comparative analysis of constitutional crisis management and emergency governance in the V4 countries.
Conceptualising State of Emergency, Constitutional Crisis Management and Their Rule-of-Law Requirements (Zoltán Szente; European Journal of Risk Regulation; July 2025). This article develops the conceptual and theoretical foundations necessary for comparing constitutional crisis management systems across the Visegrad countries. It examines longstanding debates over whether emergencies exist inside or outside the constitutional order, critiques the notion of emergencies as legal “black holes,” and proposes a broader framework for understanding emergency governance and constitutional risk management. The study also outlines key models of emergency regulation and establishes comparative criteria for evaluating how different constitutional systems authorize, constrain, and oversee exceptional powers during periods of crisis.
Emergency Regimes in the European Constitutions – A Comparative Overview (Attila Horváth; European Journal of Risk Regulation; April 2025). This comparative study examines how forty European constitutions regulate emergencies, revealing substantial variation in how states define, authorize, and constrain exceptional powers. While most constitutions contain at least some emergency provisions, the article demonstrates that the scope, specificity, and safeguards associated with emergency governance differ significantly across Europe, particularly regarding war, internal crises, natural disasters, and the restriction of fundamental rights. For ISSE, the analysis highlights the uneven constitutional architecture surrounding emergency powers and underscores the importance of institutional safeguards, legal clarity, and rights protections in periods of crisis.
Emergencies Under Czech Law (Zdenek Kühn; European Journal of Risk Regulation; June 2025). This article traces the evolution of emergency law in the Czech Republic, examining how the country moved from largely neglecting emergency governance after the fall of the Eastern Bloc to gradually developing constitutional mechanisms in response to natural disasters and later the COVID-19 pandemic. The study argues that legal frameworks designed for short-term crises proved inadequate for prolonged emergencies, exposing structural weaknesses when exceptional measures became sustained features of governance rather than temporary responses. For ISSE, the Czech experience illustrates a broader challenge facing constitutional democracies: how to prepare legal systems for enduring and overlapping crises without normalizing emergency rule or weakening democratic safeguards.
From Constitutional Risk Management to Constitutional Risk Management (Emergency Law Misuse) in Hungary (Fruzsina Gárdos-Orosz; European Journal of Risk Regulation; February 2025). This article examines how Hungary’s emergency governance framework evolved from a constitutional mechanism intended to manage crises into what the authors describe as a source of constitutional risk itself. Focusing on the repeated renewal of the country’s “state of danger” between 2020 and 2024, the study argues that prolonged emergency rule enabled unchecked executive lawmaking, weakened judicial oversight, eroded separation of powers, and narrowed human rights protections under the government of Viktor Orbán. For ISSE, the Hungarian case represents a powerful example of how emergency legal regimes can become normalized over time, transforming exceptional governance into an enduring feature of the constitutional order.
Constitutional Challenges in Emergency Governance: An Analysis of Poland’s Reluctance and Regulatory Ambiguities in States of Emergency (Monika Florczak-Wątor; European Journal of Risk Regulation; February 2025). This article examines the constitutional framework governing states of emergency in Poland and explores how emergency powers have been interpreted, invoked, and in some cases avoided by state authorities. The study highlights Poland’s notable reluctance to formally declare constitutional emergencies, including during the COVID-19 pandemic, even while imposing sweeping restrictions on rights and freedoms through alternative legal mechanisms. For ISSE, the article underscores an important dynamic in emergency governance: the risks posed not only by overuse of exceptional powers, but also by the deliberate circumvention of constitutional emergency frameworks to avoid legal and political constraints.
The Consequences of COVID-19 Emergency Risk Mismanagement: The Rise of Anti-Evidence Decision Making in Slovakia (Tomáš Gábriš and Max Steuer; European Journal of Risk Regulation; June 2025). This article examines how the COVID-19 pandemic exposed weaknesses in constitutional risk management in Slovakia, despite the existence of a largely functional emergency governance framework. The study argues that political inexperience, weak commitment to evidence-based decision making, and expanding executive authority during the pandemic contributed not only to institutional strain and rights restrictions, but also to broader political instability and growing distrust in democratic institutions. For ISSE, the Slovak case highlights how emergency mismanagement can reshape political culture itself, creating conditions in which conspiratorial narratives, anti-institutional movements, and hostility toward evidence-based governance gain lasting traction.
Constitutional Risk Management in the V4 Countries – Diverging Practices and the Need for Convergence (Zoltán Svente and Fruzsina Gárdos-Orosz; European Journal of Risk Regulation; July 2025). This concluding article synthesizes the findings of the special issue’s comparative examination of constitutional crisis management across the Visegrád Group countries: the Czech Republic, Hungary, Poland, and Slovakia. While the four states share broadly similar constitutional structures, the study demonstrates that their responses to the COVID-19 pandemic diverged significantly in practice, exposing differing approaches to executive authority, rights restrictions, institutional oversight, and emergency governance. The article ultimately advances a novel and important proposition for constitutional discourse: that greater convergence and harmonization of emergency constitutional frameworks may be necessary to strengthen democratic resilience and improve governance during future transnational crises.
Podcasts and Videos
Discussions and interviews exploring the legal and political dynamics of exceptional authority.
Crimes against humanity in El Salvador? An international query is needed to investigate atrocities - side event at March 11, 2026 UN Human Rights Council Session (Due Process of Law Foundation, et al.; March 2026). This panel discussion, held alongside the March 2026 session of the United Nations Human Rights Council, examines allegations that systematic abuses committed under El Salvador’s ongoing State of Exception may constitute crimes against humanity. Members of the International Group of Experts for the Investigation of Human Rights Violations in the Context of the State of Emergency in El Salvador (GIPES), alongside civil society representatives, discuss findings related to torture, enforced disappearances, sexual violence, and extrajudicial killings carried out under the government’s public security policies. The event highlights growing international concern over the long-term human rights implications of prolonged emergency governance and the challenges of accountability when exceptional measures become entrenched within ordinary state practice.
The Bookshelf
Key texts on emergency powers, exceptionality, and constitutional governance.
Emergency and EU Law: The Case of Covid-19, Climate Change and Migration (Swedish Studies in European Law, Volume 21) (Hart Publishing; Sanja Bogojević and Xavier Groussot; March 2026). This edited volume examines how emergencies reshape the legal and political foundations of the European Union, focusing on Covid-19, migration, and climate change. Drawing on experiences from the 2015 migration crisis and the pandemic, the contributors explore how different European states defined and responded to “emergency” conditions, often with significant implications for free movement, solidarity, and fundamental rights within the EU framework. The volume raises broader questions central to ISSE’s mission, including who should oversee exceptional powers during crises, how proportionality should function under emergency conditions, and whether prolonged crises risk normalizing extraordinary governance measures.
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.