By McCarthy Johnson, Staff Editor Volume 40
I. When Emergency Becomes Normal
Justified by necessity and defended as indispensable tools for democratic survival, emergency powers are among the most familiar and unsettling features of constitutional governance. Although framed as temporary interruptions of constitutional normalcy, emergency regimes have proven to be remarkably durable; they are not confined to any single constitutional tradition and often outlast the crises that gave rise to them.
To address this issue, this post argues that the endurance of emergency powers is best understood not primarily as a failure of political will or judicial courage, but as a problem of constitutional design. Constitutional systems devote far more attention to deciding how emergencies can be declared than to how they must end. An exploration of how different democracies vary in their attempts to address exiting emergencies will clarify that the problem is not that emergency powers are inherently incompatible with this system of government, but that constitutions are systematically under-designed to effectively deal with a return to normalcy.
II. Temporariness as a Constitutional Assumption
Foundationally, the legal justification for emergency powers is that emergencies are temporary in nature and the expansion of powers helps bring an end to the event and ultimately preserve the state. Emergency authority has long been framed as exceptional in both scope and duration. Its legitimacy derives not from its consistency with ordinary legal practice, but from its promise that a just ruler will act in the “communal interest” of the state at all times and relinquish their broadened powers once the crisis subsides.
The asymmetry between entry and exit of emergency powers in modern constitutional design is highlighted in the fact that emergency provisions explicitly announce who, when, and how an emergency can be declared, but they fail to sufficiently address how they should end. This difference in treatment creates what could be called an “exit problem,” where emergency declarations are legally structured but continue indefinitely due to open-ended renewal standards. Further, safeguards imposed to prevent such abuse have failed. For example, in the United States, controls on emergency regimes have devolved into routine presidential renewal, limited legislative constraint, and judicial deference. The result: states of emergency that are needlessly prolonged and utilized to bypass ordinary democratic accountability.
Central to this story is constitutional under-design, where democracies assume reversion without institutionalizing it. Without proper constitutional guarantees and procedural safeguards, branches of government are powerless to declare an end. Emergency governance perpetuates, and temporariness begins to operate more as a promise than a constraint. Reframing permanent emergency as a constitutional design problem helps answer the question of whether constitutional systems are equipped to compel the relinquishment of emergency powers when they are abused. Comparative experiences in France and Israel suggest that they are often not.
III. Permanent Emergency Case Studies
A. France: From Exceptional Measure to Ordinary Law
In the wake of terrorist attacks on France in 2015, French president, Francois Hollande, declared a state of emergency relying on the statutory provisions of Public Law 55-385. Originally imposed for 12 days, the state of emergency would continue to be renewed for another two years, expiring in 2017. During this time, a new set of anti-terror laws were passed expanding the powers of police and intelligence agencies by allowing restrictions on movement, religion, privacy, and assembly. These measures had a disproportionate effect on Muslims.
Then, on the eve of the emergency laws’ expiration in 2017, the French Parliament converted several of them into permanent law. More specifically, Parliament preserved warrantless movement restrictions, forced closure of religious establishments, and perimeter controls. Formally, the emergency ended. However, its logic endured within ordinary law by terminating in form rather than substance and leaving behind a constitutional paradox. Additionally, although the Conseil d’Etat, France’s supreme administrative court, affirmed that the highest level of scrutiny applied to such measures, an analysis of court decisions reveals a lower standard was frequently applied to nearly half of the measures.
All in all, France’s illustration of the exit problem is one where the normalization of emergency authority depends less on the continuous renewal of the emergency than its incorporation into an ordinary statute. In blurring the distinction between crisis governance and regular administration, the identification and reversion to pre-emergency baselines becomes complicated.
B. Israel: Emergency as a Constitutional Baseline
Israel, in comparison to France, demonstrates a different dynamic of permanent emergency via continuous formal renewal. Since Israel’s inception in 1948, a national state of emergency has existed and has been regularly extended by the Knesset and Government of Israel. Justification for this extension includes the preservation of directives that are conditioned on the existence of a state of emergency and the view that Israel has been in a constant state of war. This framework has allowed for the promulgation of emergency regulations such as administrative detentions, suspension of Supreme Court rulings, and open-fire policy for Israeli Defense Force (IDF) soldiers.
Over time, emergency has become a “state of mind” in Israel as it remains a perpetual aspect of normal political life primarily in the use of emergency mechanisms for issues unrelated to national security. Despite the Israeli Supreme Court imposing limitations on the use of emergency regulations and dampening its impact on human rights through the Bill of Judicial Rights, the emergency declaration itself has not functioned as a meaningful constraint on its permanence. As a result, emergency mechanisms perpetuate the political conditions that allow for renewal to become routine rather than exceptional.
However, it would be a mistake to believe that the continuity of Israel’s emergency regime signals a lack of constitutional regulation. Aside from judicial oversight, under Sections 38 and 39 of the Basic Laws, the Knesset can annually declare and renew states of emergency while the government can make emergency regulations that last for three months unless extended by the Knesset. What would otherwise be a moment of constitutional reassessment has steadily diminished, becoming part of the structural backdrop as renewal has grown increasingly routine and predictable.
Together, France and Israel’s distinct pathways to establishing regimes of permanent emergency reveal that the difficulty is not in its declaration, but rather in the design of credible mechanisms to compel its end.
IV. Rethinking Emergency Design
A partial counterexample to the experiences of France and Israel can be found in Germany’s approach to exiting. While not immune from critique, the framework contained in Germany’s Basic Laws reflects a conscious effort to formally address scope and duration. Particularly, there is not a catch-all provision for declaring a state of emergency, as there are four different states of emergency that can be declared, each subject to formal legislative approval and explicit requirements. Further, the termination of an emergency primarily rests within the authority of the Bundestag with the consent of the Bundesrat but is also subject to temporal constraints.
Germany’s practice highlights possible areas of reform that can better institutionalize reversion. First, the inclusion of sunset clauses would impose an automatic expiration date on emergency legislation. While these clauses alone are not a “silver bullet,” when coupled with strengthened legislative oversight and judicial review, they may prove to be an effective mechanism in preventing the normalization of emergency measures. Altogether, these kinds of reforms could treat temporariness as a structural design feature rather than a mere rhetorical promise, thereby actualizing the goals of emergency powers. Ultimately, reform reinforces the idea that emergency powers need not disappear from democratic constitutions.
V. Emergency Powers as a Design Question
Rarely are emergencies declared with the intention to be indefinite, but their perpetuity gradually becomes an inevitable consequence of routine renewals, legislative codification, and judicial tolerance. Set against Germany’s more structured framework, the permanent emergency regimes of France and Israel suggest that this pattern is not accidental but reflective of a constitutional asymmetry between the careful design of emergency declaration and insufficient structure of their termination. By reframing the problem as constitutional under-design, the debate shifts from democratic backsliding to identifying predictable incentives for treating temporariness as self-enforcing. Ultimately, to preserve the legitimacy of emergency authority, its entry and exit must be addressed with the same care. Otherwise, exceptional powers risk becoming ordinary tools of governance.