August 23, 2026
Dear Readers,
This edition of Under Exception reflects an important reality about exceptional governance: today’s most consequential expansions of state authority often occur outside formally declared states of emergency. Across the articles collected here, readers will encounter emergency powers exercised through ordinary statutes, executive discretion, judicial interpretation, digital infrastructures, military deployments, and evolving constitutional practices. Together, they illustrate why understanding states of exception requires looking beyond moments of obvious crisis to examine how extraordinary authority becomes embedded within the ordinary operation of government.
This month also reflects the growing breadth of the Institute’s work. Alongside new ISSE research and scholarship from our Fellows, we continue to curate leading academic literature, institutional analysis, podcasts, books, and global developments that advance understanding of emergency governance from multiple disciplinary perspectives. We are especially pleased that this work was recently highlighted by the Financial Times, reflecting the growing recognition that rigorous, nonpartisan research on emergency powers and constitutional governance has become increasingly important.
As always, thank you for reading, sharing our work, and supporting the development of this growing community of scholars, practitioners, policymakers, journalists, and engaged citizens committed to understanding one of the defining constitutional challenges of our time.
Ed Bogan
Founder, Institute for the Study of States of Exception
ISSE Announcements
Upcoming ISSE Office Hours (tentatively planned for Thursday, September 17, 2026): Our September “Office Hours” discussion topic will focus on our research into how emergency powers could be used to disrupt an election.
Legal Analysis
Legal Scholarship and analysis exploring the constitutional, statutory, and judicial dimensions of emergency governance.
Deference Should Follow Expertise, Not Pretext: Anthropic v. Department of War and the Case for Squaring Trump v. Hawaii with Department of Commerce v. New York (Yuvraj S. Tuli; Just Security; August 2026). ISSE Research Fellow Yuvraj S. Tuli examines the unresolved tension between judicial deference to executive national security judgments and the courts' responsibility to identify when those justifications are merely pretextual. Using recent litigation involving Anthropic and Supreme Court precedents including Trump v. Hawaii and Department of Commerce v. New York, he proposes a framework that distinguishes genuine operational security judgments from the use of national security authorities as instruments of political retaliation or other collateral purposes.
DC Crime Isn’t an “Emergency,” but Normalizing Troops in U.S. Streets Is (Joseph Nunn; Brennan Center for Justice; August 2026). Joseph Nunn argues that routine urban crime does not satisfy the constitutional logic of an emergency and warns that the prolonged deployment of National Guard troops in Washington, D.C., risks normalizing the military's role in civilian law enforcement. He contends that the greatest danger lies not only in the deployment itself, but in the gradual acceptance of extraordinary military measures as an ordinary feature of domestic governance.
Sovereign Presidential Lawfare in the Populist Context (Michał Stambulski; Legal Ethics; June 2026). Through the Polish Kamiński and Wąsik case, Michał Stambulski develops the concept of "sovereign presidential lawfare," examining how constitutional presidential prerogatives can be used to reshape the relationship between the executive and the judiciary without formally changing the constitutional order. Drawing on Carl Schmitt's distinction between commissarial and sovereign power, the article argues that exceptional executive authorities can gradually transform constitutional governance through legally grounded but structurally significant interventions, offering an important framework for understanding executive aggrandizement in contemporary democracies.
From Crime to Constitutional Crisis: The Legality of El Salvador’s State of Exception (Alex Jacobs; Emory International Law Review; 2026). Alex Jacobs examines whether El Salvador’s repeatedly renewed State of Exception remains lawful under the Salvadoran Constitution and the country’s international human rights obligations, distinguishing between the emergency’s arguably justified origins in extreme gang violence and its continued use after crime levels fell dramatically. The article argues that emergency powers initially adopted to confront a genuine security crisis have evolved into a prolonged system of rights derogation that can no longer be justified by necessity, raising broader concerns about the normalization of exceptional authority and the erosion of rule-of-law constraints.
Institutional Perspectives
Commentary, reports, and analysis from think tanks, research institutions, NGOs, and other organizations examining emergency powers, constitutional governance, and democratic resilience.
A Polish Warning for Post-Orbán Hungary: ‘We’ve Been Here Before” (Wojciech Cieśla; OCCRP; April 2026). Drawing on Poland's experience after eight years of democratic backsliding, investigative journalist Wojciech Cieśla reflects on the institutional challenges Hungary faces following the electoral defeat of Viktor Orbán and argues that democratic restoration is far more difficult than democratic erosion. Rather than celebrating political transition alone, the article emphasizes the long-term work of rebuilding independent courts, public media, and constitutional institutions after years of executive consolidation, offering an important comparative perspective on the enduring legacy of authoritarian governance.
The Unbearable Weight of Capture: The Shift of Peaceful Data to a Latent Weapon of War (Janos Mark Szakolczai; European Sociologist; July 2026). Drawing on the concepts of capta (information taken rather than given) and the state of exception, Janos Mark Szakolczai argues that data collected during periods of apparent peace can later be repurposed as instruments of surveillance, coercion, and warfare when political conditions change. By connecting historical examples with contemporary debates over AI, biometric systems, predictive policing, and military technologies, the article highlights how exceptional governance can become embedded within digital infrastructures, raising profound questions about privacy, sovereignty, and the long-term political consequences of information capture.
Five Years After Saied’s Power Grab, Tunisia Is Isolated and Unmoored (Sabina Henneberg and Sarah Yerkes; The Washington Institute; July 2026). Five years after President Kais Saied's 2021 consolidation of power, Sabina Henneberg and Sarah Yerkes assess how Tunisia's democratic reversal has evolved into a broader pattern of political repression, institutional weakening, economic stagnation, and international isolation. The article examines how emergency powers initially justified as temporary responses to crisis became the foundation for durable authoritarian governance, while also considering what role international partners might still play in supporting democratic actors and long-term constitutional recovery.
Academic Literature
Recent scholarship examining the theory, politics, philosophy, history, and practice of emergency governance.
Populism through the case of South Korea under President Yoon Suk Yeol’s administration (2022-2025) (Ta Thi Nguyet Trang and Dang Thuy Linh; Social Sciences & Humanities Open; 2026). Using South Korea’s 2024 martial law crisis as a case study, Ta Thi Nguyet Trang and Dang Thuy Linh propose a new typology distinguishing "tamed" from "radical" populism, arguing that populist movements can evolve from constitutionally constrained political mobilization into forms that seek to override democratic institutions through extraordinary executive action. The article examines how emergency powers may emerge not only in response to external crises but also from political narratives portraying ordinary democratic opposition as an existential threat, while highlighting the crucial role of courts, constitutional institutions, and civic mobilization in resisting the normalization of exceptional governance.
Digital Preparedness: A New Modality of Governance (Kjetil Rommetveit, Ana Delgado, and Niels Van Dijk; Digital Society; July 2026). Drawing on Norway's digital response to the Covid-19 pandemic, Kjetil Rommetveit, Ana Delgado, and Niels Van Dijk introduce the concept of "digital preparedness" to explain how emergency governance can permanently reshape data infrastructures, regulatory frameworks, and state capacity long after an immediate crisis has passed. The article argues that exceptional measures introduced during emergencies increasingly become embedded within ordinary governance, raising important questions about the relationship between emergency powers, digital technologies, privacy, and the evolving architecture of the modern state.
The Bookshelf
Books and book chapters exploring emergency powers, exceptionality, constitutional governance, and related questions of law, politics, and history.
Carl Schmitt in the Middle East: Unstable Decisionism and the Failure of Political Orders (Samuel Mace; Palgrave Macmillan; August 2026). ISSE Senior Fellow Samuel Mace critically reexamines Carl Schmitt's theory of decisionism through the political experience of the modern Middle East, arguing that regimes built upon exceptional authority often generate long-term instability rather than durable political order. By applying Schmitt's ideas to contemporary Middle Eastern governance, the book offers a significant contribution to scholarship on sovereignty, emergency powers, authoritarianism, and the practical consequences of decisionist forms of political rule.
Podcasts & Videos
Podcasts, interviews, lectures, and discussions exploring the legal and political dynamics of exceptional authority.
A Vast Accumulation of Corpses: Necropolitic. (Blood Work podcast; 2026). his two-hour episode of the Blood Work podcast examines Achille Mbembe's influential concept of necropolitics, tracing its development from his seminal 2003 essay through his later book while situating the theory within broader debates about sovereignty, colonialism, violence, and the political production of death. By exploring necropolitics as an extension of (and departure from) Michel Foucault's concept of biopolitics, the discussion provides a rich introduction to one of the most important theoretical frameworks for understanding how modern states exercise power through exceptional forms of governance.
ISSE in the News
Media coverage, interviews, commentary, and public appearances featuring ISSE and our scholars
Financial Times Features ISSE’s Research on Emergency Powers (Financial Times; August 10, 2026). In its August 10, 2026 international edition, the Financial Times featured the Institute for the Study of States of Exception in a front-page article examining debates over executive power, democratic guardrails, and how the potential use of emergency authorities could affect constitutional governance in the United States. ISSE's contribution to the article explained the Institute's ongoing nonpartisan research into emergency powers, including its work assessing the legal authorities that could be invoked during a future U.S. election-related crisis, illustrating the growing public interest in understanding exceptional 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.