Under Exception, Issue #15
It's closer than you think...
August 01, 2026
Dear Readers,
This month’s collection explores an increasingly important feature of contemporary emergency governance, and that is how exceptional authority is often exercised without the formal declaration of a constitutional emergency. Across many democratic systems, governments now rely on standing statutory authorities, specialized legal frameworks, administrative procedures, and institutional practices that expand executive discretion while leaving the ordinary constitutional order formally intact. Understanding these quieter forms of exceptional governance has become just as important as studying the declaration of states of emergency themselves.
Several of the articles in this issue examine this evolution from different perspectives. We analyze recent uses of statutory emergency authorities in India, Spain, and the United States, each illustrating distinct ways governments mobilize extraordinary powers through existing legal frameworks. Other pieces explore how emergency governance reshapes institutions over time, from the Supreme Court’s expanding use of its emergency docket to the long-term constitutional consequences examined by the EMERGE Project, democratic recovery efforts in Hungary, and the changing governance of displaced populations in Europe and Turkey. Together, these studies demonstrate that emergency powers often leave institutional legacies long after the immediate crisis has passed.
This issue also turns to the deeper constitutional principles that have shaped debates over exceptional authority for centuries. We revisit the enduring figure of Cincinnatus as a symbol of temporary and self-limiting emergency power, while new scholarship on democratic backsliding in East Asia highlights both the resilience and the vulnerabilities of constitutional systems confronting polarization, foreign interference, and executive overreach. We also feature a thoughtful debate among John Yoo, William Galston, and Ilya Somin on the constitutional foundations of the unitary executive, one of the most consequential questions in contemporary American constitutional law.
Taken together, these contributions reinforce a central theme of ISSE’s work: states of exception are not defined solely by dramatic declarations of emergency or visible constitutional rupture. They increasingly emerge through ordinary legal mechanisms, administrative practice, institutional evolution, and historical accumulation. Understanding how exceptional powers become embedded within constitutional systems, and how democratic societies preserve accountability while responding to genuine crises, remains one of the defining constitutional challenges of our time.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE Announcements
Improvements to the website: We’ve been busy behind the scenes. Please take a look at our newly updated About ISSE, Mission, Vision & Principles, What is a State of Exception?, and Our Team pages for recent updates and improvements including a more complete depiction of the Institute’s roster and our activities. We’ve also made some format changes to our articles we hope you will find appealing. Comments are always welcome.
Upcoming ISSE Office Hours (tentatively planned for Thursday, August 20, 2026): Our August “Office Hours” discussion topic will be shared very soon.
Global Events
A curated selection of recent developments involving emergency powers and constitutional governance.
Delhi Renews Preventive Detention Authority Under India’s National Security Act (ISSE, July 2026). As of July 7, 2026, Indian authorities have renewed the delegation of preventive detention powers under the National Security Act, allowing designated officials to order detention without ordinary criminal charges during a period of heightened political sensitivity following nationwide protests. The case illustrates how extraordinary executive powers can be exercised through standing statutory authorities rather than formally declared constitutional emergencies, highlighting an increasingly important form of embedded exceptionality within ordinary governance.
Spain Activates National Civil Protection Emergency for Major Wildfires (ISSE; July 2026). On July 23, 2026, Spain activated an Emergency of National Interest for the first time in response to a wildfire crisis, temporarily centralizing national coordination of disaster response as fires spread across multiple autonomous communities during an intense heat wave. The declaration illustrates how democratic governments can reallocate operational authority through existing statutory emergency frameworks while leaving the constitutional order and ordinary civil liberties intact, highlighting an increasingly important model of emergency governance in an era of climate-driven disasters.
United States invokes Tariff Act Emergency Authority to Facilitate Moroccan Phosphate Fertilizer Imports (ISSE; June 2026). On June 29, 2026, President Trump invoked a little-known emergency authority under the Tariff Act of 1930 to temporarily suspend certain trade remedies on phosphate fertilizer imports from Morocco in response to global supply disruptions affecting American agriculture. ISSE examines this rarely used statutory emergency mechanism and explains how it differs from broader national emergency declarations, illustrating the growing role of sector-specific emergency powers in addressing supply chain and economic crises.
Additional Resources
Selected commentary and analysis relevant to the evolving law of emergency powers.
Cincinnatus and the Constitutional Ideal of Temporary Power (ISSE; July 2026). The Roman statesman Cincinnatus has long symbolized the constitutional principle that extraordinary powers should be exercised only when genuinely necessary and relinquished once the crisis has passed. His enduring legacy illustrates one of the oldest and most important safeguards of constitutional government: that emergency authority derives its legitimacy not only from necessity, but from its temporary character.
EMERGE: Rethinking Emergency Across Europe Through Legal History (Ghent University; ongoing). The EMERGE Project at Ghent University examines how emergency powers have shaped European constitutional orders, legal institutions, and political cultures over the past century, challenging the assumption that emergencies leave no lasting constitutional legacy. The project demonstrates how exceptional governance can become embedded within ordinary legal systems, offering important historical context for understanding the evolution and normalization of emergency powers today.
The Supreme Court is Moving More Cases into the Shadows (Ashleigh Maciolek; Brennan Center for Justice; July 2026). This analysis by Ashleigh Maciolek at the Brennan Center for Justice examines the Supreme Court's increasing reliance on its emergency, or "shadow," docket, noting that for the first time the Court resolved more substantive matters through expedited emergency procedures than through its traditional merits docket. The piece raises broader questions about how institutional procedures originally designed for exceptional circumstances can gradually become normalized within ordinary constitutional governance.
Academic Literature
Recent scholarship examining the theory and practice of emergency governance.
Can Péter Magyar Restore Hungary’s Democracy? (Kim Lane Scheppele; The Journal of Democracy; July 2026). Following Péter Magyar's decisive electoral victory over Viktor Orbán, Kim Lane Scheppele examines the formidable legal and institutional obstacles to restoring constitutional democracy after sixteen years of executive consolidation, institutional capture, and prolonged emergency governance. The article explores the challenge of de-exceptionalization—the difficult process of dismantling entrenched systems of exceptional governance and rebuilding democratic institutions capable of resisting future authoritarian relapse.
Urban Governance of the Displaced and Emergency Rules (Ayşe Çaglar; Journal of Race, Ethnicity and the City; June 25, 2026). Drawing on case studies from Vienna, Austria, and Nusaybin, Turkey, Ayşe Çaglar examines how emergency laws governing displaced populations reshape authority between municipal and national governments, often expanding executive control over urban governance long after an immediate crisis begins. The article demonstrates that emergency powers frequently transform not only the governance of displaced populations but also the institutional distribution of authority itself, creating durable changes in how cities, states, and executive power interact.
The Danger of Democratic Backsliding in East Asia (Christopher Carothers; The Journal of Democracy; July 2026). Beginning with South Korea’s failed December 2024 martial law declaration, which was rapidly reversed through legislative resistance and public mobilization, Christopher Carothers argues that Japan, South Korea, and Taiwan remain resilient democracies while exhibiting distinct warning signs of erosion: overcentralized power in Japan, severe polarization in South Korea, and sustained Chinese interference in Taiwan. The article shows both how democratic institutions can withstand an acute abuse of emergency power and how quieter patterns of norm violation, institutional manipulation, and partisan control can continue to weaken constitutional governance over time.
Podcasts & Videos
Discussions and interviews exploring the legal and political dynamics of exceptional authority.
Competing Perspectives on the Unitary Executive Theory (American Enterprise Institute; June 2026). In this discussion hosted by the American Enterprise Institute, John Yoo, William Galston, and Ilya Somin examine competing constitutional theories of executive power, separation of powers, independent agencies, war powers, and the original understanding of Article II against the backdrop of major Supreme Court cases concerning the unitary executive. The panel explores enduring questions about the constitutional limits of presidential authority and how competing interpretations of executive power continue to shape American constitutional governance.
About ISSE
The Institute for the Study of States of Exception is a U.S.-based 501(c)(3) nonprofit organization that tracks and analyzes the use and misuse of emergency powers around the world, providing research and analysis on how exceptional authority shapes modern governance.