Under Exception, Issue #13
It's closer than you think...
June 7, 2026
Dear Readers,
This month’s issue is dedicated to one of the most consequential constitutional debates currently unfolding in the United States in real time: Unitary Executive Theory. While the Institute for the Study of States of Exception is a global platform examining emergency powers and exceptional governance around the world, we will occasionally devote focused attention to a single issue when developments suggest it may have broader implications for constitutional governance, institutional accountability, and the distribution of power within democratic systems more broadly. The U.S. Supreme Court’s pending decision in Trump v. Slaughter, together with the increasingly prominent role that Unitary Executive Theory has played in contemporary legal, political, and administrative debates, makes this an especially appropriate moment for such a deep dive.
The materials collected in this issue approach the subject from multiple perspectives. Some examine the historical foundations of Unitary Executive Theory and challenge commonly cited understandings of the constitutional founding. Others explore its doctrinal development in American jurisprudence, its application to contemporary disputes involving independent agencies and executive authority, and its relationship to broader questions of administrative governance. Several contributions place the debate in comparative perspective, examining how the concentration of executive authority has operated in other democratic systems and what lessons those experiences may hold for contemporary constitutional democracies.
This issue also reflects a core feature of ISSE’s approach: we are interested not only in formally declared emergencies, but also in the ways exceptional authority can emerge through and embed within ordinary institutions, legal doctrines, bureaucratic practices, and constitutional interpretation. Whether one views Unitary Executive Theory as a necessary mechanism for democratic accountability, an inevitable feature of modern governance, a threat to traditional checks and balances, or some combination of these, the theory raises important questions about the relationship between executive power and constitutional constraint. Those questions are increasingly relevant not only to the United States, but to broader global discussions about democratic resilience, institutional independence, and the evolving structure of modern governments. We hope this collection contributes to a deeper understanding of the debate and provides useful context for the legal and political developments that are likely to follow in the months ahead.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE Announcements
Upcoming ISSE Office Hours (11:00 Eastern; June 18, 2026): This month’s discussion will examine the constitutional theory and practical implications of Unitary Executive Theory, one of the most consequential debates in contemporary American governance. Drawing on the articles, scholarship, book reviews, and ISSE analyses featured in this issue, we will explore the historical origins of Unitary Executive Theory, competing interpretations of presidential power, and the theory’s relationship to administrative governance, emergency authority, and constitutional accountability. Particular attention will be given to the Supreme Court’s pending decision in Trump v. Slaughter, a case that could significantly reshape the relationship between the presidency and independent federal agencies, with implications extending far beyond the Federal Trade Commission and into broader debates about executive power, institutional independence, and the future structure of the American administrative state.
Global Events
A curated selection of recent developments involving emergency powers and constitutional governance.
Why Is the Weaponization Report so… Normal? (Kate Gilbert, Lawfare; May 2026). In this essay for Lawfare, Kate Gilbert examines the Department of Justice’s first “Weaponization Working Group” report and argues that its significance lies less in its conclusions than in the bureaucratic form through which those conclusions are presented. Rather than focusing solely on partisan conflict, the article explores how institutional procedures, investigative frameworks, and claims of administrative neutrality can normalize extraordinary assertions of political authority while preserving the appearance of ordinary governance. For ISSE, the essay raises important questions about how expansive interpretations of Unitary Executive Theory may reshape executive authority, institutional independence, and traditional constitutional guardrails through incremental changes embedded within routine state practice.
A Threat to the Constitutional Order (Peter J. Wallison; American Enterprise Institute; April 2026). In this op-ed, Peter Wallison examines the Supreme Court’s pending consideration of Trump v. Slaughter, a case that could significantly expand presidential authority over independent federal agencies and further institutionalize expansive interpretations of Unitary Executive Theory. The article argues that allowing presidents to remove officials from independent regulatory agencies absent malfeasance would fundamentally alter the traditional balance between Congress and the executive branch by placing large portions of the administrative state under direct presidential policy control. For ISSE, the piece highlights how profound shifts in executive authority can emerge not through formal emergency declarations, but through judicial reinterpretations of constitutional structure that gradually reshape institutional independence, administrative governance, and the distribution of power within democratic systems.
Additional Resources
Selected commentary and analysis relevant to the evolving law of emergency powers.
ISSE Explainer: When Executive Power Becomes Exceptional - Unitary Executive Theory as a State of Exception (ISSE analysis; January 2026). This ISSE explainer (which we previously posted in January but are reposting this month given the rest of the new content) examines how the most expansive interpretations of Unitary Executive Theory can transform exceptional authority from a temporary response to crisis into a permanent feature of constitutional governance. Using recent disputes involving security-clearance revocations and the attempted federalization of National Guard units, the analysis explores claims that certain presidential actions are categorically insulated from judicial review and external constraint. From an ISSE perspective, the significance of these developments lies not simply in the scope of presidential power, but in the possibility that exceptionality may become embedded within constitutional interpretation itself, creating enduring zones of executive discretion that operate beyond traditional legal and institutional guardrails.
The Imaginary Unitary Executive (Jed Handelsman Shugerman; Lawfare; July 2020). In this historical and constitutional analysis, Jed Shugerman challenges one of the central foundations frequently invoked in support of modern Unitary Executive Theory: the so-called “Decision of 1789,” which is often cited as evidence that the First Congress endorsed broad presidential removal powers. Drawing on original legislative records and overlooked historical sources, the article argues that the historical record is far more ambiguous than contemporary courts have acknowledged and that early Congresses accepted a greater role for legislative constraints on executive authority than recent Supreme Court decisions suggest. For ISSE, the piece highlights how competing interpretations of constitutional history can shape contemporary understandings of executive power, institutional independence, and the extent to which democratic systems maintain effective checks on increasingly centralized forms of governance.
Academic Literature
Recent scholarship examining the theory and practice of emergency governance.
The Unitary Executive Theory in Comparative Contrast (David M. Driesen; University of California, College of Law San Francisco Law Journal; November 2020). In this comparative analysis, David Driesen examines the debate over Unitary Executive Theory through the experiences of Hungary, Poland, and Turkey, arguing that the concentration of executive control over key state institutions has often served as a pathway toward democratic erosion and autocratic governance. The article shows how efforts to subordinate prosecutors, electoral authorities, media regulators, and other independent bodies to executive control can weaken accountability, distort political competition, and undermine the rule of law while preserving the formal appearance of constitutional government. For ISSE, the study offers an important comparative perspective on contemporary debates over presidential power, highlighting how institutional centralization can gradually transform democratic systems and reinforcing the importance of safeguards that preserve autonomy, oversight, and constitutional restraint.
The Bound Executive: Emergency Powers During the Pandemic (Tom Ginsburg and Mila Versteeg; International Journal of Constitutional Law; June 2021). Drawing on a global survey of more than one hundred countries, this article challenges the common assumption that emergencies inevitably produce unconstrained executive power and the collapse of ordinary checks and balances. The authors demonstrate that during the COVID-19 pandemic, courts, legislatures, and subnational governments frequently played active roles in overseeing, constraining, and shaping executive responses, producing a model of emergency governance that was often more Madisonian than Schmittian. For ISSE, the study offers an important counterpoint to narratives of inevitable executive dominance, showing that institutional guardrails can remain effective during crises and that the structure of an emergency itself may significantly influence the degree to which executive authority becomes exceptional or remains constitutionally bounded.
The Unitary Executive: Past, Present, Future (Cass R. Sunstein and Adrian Vermeule; The Supreme Court Review; 2020). In this influential review essay, Cass Sunstein and Adrian Vermeule examine the constitutional foundations, historical development, and future trajectory of Unitary Executive Theory, focusing particularly on debates over presidential removal authority and the status of independent agencies. The article explores competing interpretations of landmark Supreme Court decisions such as Myers v. United States and Humphrey’s Executor, assessing whether the Constitution requires direct presidential control over executive officials or permits Congress to create institutions insulated from political influence. For ISSE, the piece provides an important window into the legal and theoretical arguments driving contemporary efforts to expand executive authority, while highlighting the broader constitutional questions surrounding administrative independence, democratic accountability, and the concentration of governmental power.
James Madison and the Emergency Powers of the Legislature (Clement Fatovic; Constitutional Studies; January 2016). This piece challenges the common assumption that emergency powers are inherently executive in nature by examining how James Madison understood the role of legislatures during periods of crisis. Drawing on debates from the Revolutionary era and early republic, Fatovic argues that Madison developed a concept of “legislative prerogative,” under which elected assemblies could occasionally undertake extra-legal measures in extraordinary circumstances as a safer alternative to permanently expanding governmental power. For ISSE, the article offers an important historical counterpoint to modern theories that concentrate emergency authority in the executive branch, highlighting alternative constitutional traditions that emphasize legislative responsibility, accountability, and restraint in times of emergency.
Podcasts and Videos
Discussions and interviews exploring the legal and political dynamics of exceptional authority.
The Unitary Executive Theory with Mark Rozell (Bill of Rights Institute, Scholar Talks series; June 2022). In this discussion, political scientist Mark Rozell explores the historical origins, constitutional foundations, and contemporary implications of Unitary Executive Theory, drawing on themes from his book Unitary Executive Theory: A Danger to Constitutional Government. The conversation examines arguments for and against expansive presidential control of the executive branch, including debates over executive accountability, administrative independence, congressional oversight, and the growing use of presidential “czars” and other mechanisms that can concentrate authority within the White House. For ISSE, the interview provides an accessible introduction to one of the most consequential constitutional debates shaping contemporary governance and raises broader questions about the relationship between executive power, institutional checks, and democratic accountability.
The Bookshelf
Key texts on emergency powers, exceptionality, and constitutional governance.
The Executive Unbound: After the Madisonian Republic (Eric A. Posner and Adrian Vermeule; Oxford University Press; June 2011). Few books have had a greater influence on contemporary debates over executive power than The Executive Unbound, in which Eric Posner and Adrian Vermeule argue that the Madisonian system of checks and balances no longer serves as the primary constraint on executive authority and has been replaced by a system in which politics, public opinion, and institutional realities shape presidential power. The book presents one of the most consequential defenses of executive-centered governance in modern constitutional scholarship and remains highly relevant to ongoing debates surrounding Unitary Executive Theory, administrative governance, emergency powers, and constitutional accountability. To encourage broader engagement with these arguments, ISSE has also included three reviews of the book—from John Samples (Law & Liberty), Graham Dodds (Law and Politics Book Review), and Benjamin Kleinerman (Lawfare)—which collectively explore the book’s implications for constitutional government, the rule of law, and the future of democratic constraints on executive power.
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.
It would have been helpful if you had defined Unitary Executive Theory at the beginning of the article. My personal opinion is that it is contrary to democracy and leads to tyranny. Tyranny wrapped up in Supreme Court decisions and an enormous amount of rationalization.
Wow 🙌🏽😔 Lots here, for the USA and for Ukraine especially. Now.