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Brandeis University Law Journal 2023-2024, Volume 11

States of Emergency: The History and Legal Ramifications

Maia Katsnelson88

Emergencies happen globally on a daily basis, underscoring
the pivotal role of governmental responses in managing these
situations. The extent of a government's ability, specifically its
Executive branch, to respond to an emergency can be a
determining factor in disaster mitigation and future
government stability. In the US, the power of the executive
branch has been a longstanding issue, evident in the founders'
aim to limit it and prevent a new monarchy in the Early
Republic. Despite their intentions, this article highlights the
significant increase of executive branch authority during times
of emergencies. To explore the historical and legal foundations
of State of Emergency jurisprudence, this article details how
this concept developed across Europe, but more specifically in
the United States. Lastly, further reforms to the doctrine as it is
practiced in the United States are proposed.

I. Introduction

Pages upon pages of history books describe
catastrophes: wars, disease, famine, and terror. Human
suffering is thereby processed, recounted, cataloged, and
taxonomized. This article addresses what often becomes
occluded in retrospection, namely the immediate response to
emergencies, rather than the eventual outcome. The expansion
of governmental power in the aftermath of a disaster is the
subject of this investigation.

The concept of a “State of Emergency” has existed for
centuries without consensus on the limit of government power

88 Brandeis University Undergraduate, Class of 2026.

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Brandeis University Law Journal 2023-2024, Volume 11

during such times.89 Cornell’s Legal Dictionary defines the
legal concept as “a government declaration stating that because
of some crisis, the normal workings of political and social life
are suspended in the given jurisdiction. A state of emergency
may alter government operations, order specific action by
individuals, and suspend regular civil rights.”90

States of Emergency have recently come to the
forefront of the news cycle due to events such as the
COVID-19 Pandemic, the war in Ukraine, and, most recently,
the October seventh terror attacks by Hamas militants on Israel.
This article addresses how the U.S. and European countries
have grappled with questions such as: what constitutes a State
of Emergency, which constitutional procedures and personal
liberties can a government suspend, and how long can a State
of Emergency last? This article also proposes a mechanism by
which Congress can place necessary limits on executive power
during States of Emergency and proposes narrowing the
definition of the concept.

II. Historical Perspective

A. Europe

Modern invocations of States of Emergency originate
from the legal traditions of democracies in nineteenth-century
Western Europe.91 The concept traces back to the ancient
Roman practice of designating an auctoritas, a dictator, in
times of external attack or rebellion within the republic.92 The
auctoritas had the power to grant or suspend laws and operate

92 Id.
91 Scott P Sheeran, supra note 89.

90 State of emergency | Wex |U.S.Law | LII / Legal Information Institute,
https://www.law.cornell.edu/wex/state_of_emergency (last visited Nov 26,
2023).

89 Scott P Sheeran, Reconceptualizing States of Emergency under
International Human Rights Law: Theory, Legal Doctrine, and Politics, 34.

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Brandeis University Law Journal 2023-2024, Volume 11

outside the potesta (the normal binding power of law).93 In the
eighteenth and nineteenth centuries, European states began to
codify this Roman tradition into modern law.

The French Revolution constituted the most prominent
European event that worked to establish the modern
understanding of States of Emergency. The French
revolutionaries proposed the idea of suspending the
Constitution in response to a great danger.94 Subsequently, in
1848, the Second French Republic created a new article for its
Constitution, which formalized the definition of a “state of
siege.”95 The post-Enlightenment definition was, therefore,
born in a short-lived democratic historical moment.

Historically, States of Emergency have often been
swiftly followed by dictatorships, human rights abuses, and the
breakdown of constitutional government. The twentieth
century saw a proliferation of States of Emergency, especially
during the World Wars.96 Governments worldwide took
extraordinary measures, from rationing to censorship, to
address wartime challenges.97 However, this era also witnessed

97 Id.

96Arend Lijphart, Emergency Powers and Emergency Regimes: A
Commentary, 18 ASIAN SURVEY 401 (1978).

95 The Second French Republic is defined by Britannica as the republic
established after the revolution which lasted from 1848-1852; Agamben,
Giorgio, “The State of Exception” (Kevin Attell trans., Univ. of Chi. Press
2005) (2003). Article 14 of the Constitution granted the government the
power to “make the regulations and ordinances necessary for the execution
of the laws and the security of the State'' and the Acte Additional to the
Constitution first mentioned a “state of siege”; Sheeran, Scott P.
“Reconceptualizing States of Emergency under International Human Rights
Law: Theory, Legal Doctrine, and Politics” Michigan Journal of
International Law, vol. 34, Issue 3, pp. 491-557.

94 Giordanengo, Davide “The State of Exception”, June 21, 2016,
https://www.e-ir.info/pdf/63909.

93 Botha, Marc “Review: Untitled”, Review of: State of Exception by
Giorgio Agamben, Kevin Attell, Oxford Literary Review, vol. 31, No. 2, pp.
255-259.

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Brandeis University Law Journal 2023-2024, Volume 11

State of Emergency misuse, with some regimes using the
doctrine to justify the suppression of political opposition.98

Notably, the breakdown of constitutional government in the
Weimar Republic, Germany 1918, was partly due to the abuse
of States of Emergency declarations.99 Article 48 of the Weimar
Constitution described the emergency powers of the president,
stating that the president protects against great threats with
“measures necessary to reestablish law and order, if necessary
using armed force and including the suspension of a particular
and limited set of rights.”100 The drafters of the Weimar
Constitution attempted to prevent a situation in which a ruler
could take advantage of the State of Emergency laws, but these
attempts failed. Article 48 was invoked approximately 250
times throughout the relatively brief lifetime of the Weimar
Republic.101 Once Adolf Hitler and the Nazi Party rose to
power, they suspended all articles of the Weimar Constitution
pertaining to personal liberties.102 Weimar politicians had made
a major mistake–they had “normalized” emergencies. It was all
the easier therefore for Nazi’s to end Constitutional norms
entirely.

B. The United States

The United States played a key role in establishing
States of Emergency as a feature in the modern rule of law.
Since President Abraham Lincoln’s administration and his
suspension of habeas corpus during the Civil War, U.S. history

102 Id.

101 Sheeran, Scott P. “Reconceptualizing States of Emergency under
International Human Rights Law: Theory, Legal Doctrine, and Politics”
Michigan Journal of International Law, vol. 34, Issue 3, pp. 491–557.

100 The Reich Constitution of August 11th 1919 (Weimar Constitution) with
Modifications, PSM DATA,
http://www.zum.de/psm/weimar/weimar-vve.php.

99 Id.
98 Id.

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Brandeis University Law Journal 2023-2024, Volume 11

is riddled with instances of Executive use of emergency
powers.103

The Alien and Sedition Acts of 1798 were a defining
moment in the codification of emergency powers. Although a
formal State of Emergency was not declared at the time, the
United States stood on the brink of the Quasi-War with France,
a limited naval conflict centered on American trading rights.104

The Federalist government of the time, afraid the
Democratic-Republic criticism of Federalist policies would
endanger the war effort and that ‘aliens’ who were subjects of
foreign enemies would sympathize with the French during the
conflict, passed four laws known as the Alien and Sedition
Acts.105 The president at the time, John Adams, criminalized
criticism of his party through these acts, specifically through
The Sedition Act.106 Freedom of the press was the main
freedom curtailed by the Sedition Act which stated that: “if any

106 The Alien and Sedition Acts (1798) | Constitution Center,
https://constitutioncenter.org/the-constitution/historic-document-library/deta
il/the-alien-and-sedition-acts-1798 (last visited Dec 6, 2023); Avalon
Project - An Act in Addition to the Act, Entitled "An Act for the
Punishment of Certain Crimes Against the United States,
https://avalon.law.yale.edu/18th_century/sedact.asp (last visited Dec 6,
2023).

105 Alien and Sedition Acts (1798), National Archives (2021),
https://www.archives.gov/milestone-documents/alien-and-sedition-acts (last
visited Dec 6, 2023).

104 The Quasi-War with France (1798 - 1801), USS Constitution Museum,
https://ussconstitutionmuseum.org/major-events/the-quasi-war-with-france/
(last visited Dec 6, 2023).

103 Habeas corpus ad subjiciendum | Wex |U.S.Law | LII / Legal Information
Institute, https://www.law.cornell.edu/wex/habeas_corpus_ad_subjiciendum
(last visited Nov 28, 2023)., defined as ““that you have the body to submit
to” in Latin. It is also known as the “Great Writ” and is a writ that is
directed to someone detaining another person to inquire as to the legality of
the detention; Declared National Emergencies Under the National
Emergencies Act | Brennan Center for Justice,
https://www.brennancenter.org/our-work/research-reports/declared-national-
emergencies-under-national-emergencies-act (last visited Nov 28, 2023).

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Brandeis University Law Journal 2023-2024, Volume 11

person shall write, print, utter or publish [...] any false,
scandalous and malicious writing or writings against the
government of the United States, [...], or to excite against them,
or either or any of them, the hatred of the good people of the
United States, or to stir up sedition within the United States,
[...] shall be punished by a fine not exceeding two thousand
dollars, and by imprisonment not exceeding two years.”107 This
is a clear restriction of First Amendment free speech and an
expansion of executive power during a time of national
emergency, although it was not considered as such by President
Adams in 1798. These Acts and the subsequent Sedition Act
Trials led to a sharp increase in criticism of the Federalist Party
and contributed to their defeat in 1800.108 When Thomas
Jefferson won the presidency in 1800, the Acts expired and he
pardoned those convicted under them.109

There were other instances in the past 200 years which
include the suspension of habeas corpus under President
Lincoln, the Espionage Act of 1917 and the amendment to Title
I of the Act - the Sedition Act of 1918 which curtailed free
speech rights during war-time.110 Additionally, President
Franklin Delano Roosevelt declared an Unlimited National
Emergency in May of 1941.111

111 Radio Address Announcing an Unlimited National Emergency. | The
American Presidency Project,
https://www.presidency.ucsb.edu/documents/radio-address-announcing-unli
mited-national-emergency (last visited Feb 11, 2024).

110 Espionage Act of 1917 and Sedition Act of 1918 (1917-1918) |
Constitution Center, National Constitution Center – constitutioncenter.org,
https://constitutioncenter.org/the-constitution/historic-document-library/deta
il/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918 (last visited
Feb 11, 2024).

109 The Alien and Sedition Acts (1798) | Constitution Center, supra note
106.

108 Alien and Sedition Acts (1798), supra note 105.
107 Id.

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In 1976, the U.S. Congress passed the National
Emergencies Act (NEA), which created a time limit on existing
declared States of Emergency.112 It also included termination
methods for a State of Emergency, such as the “automatic
termination of national emergency upon its anniversary every
year, if the President does not act to renew it.”113 The NEA
aimed to formalize the process of declaring and renewing the
State of Emergency.114

III. Legal Framework

A. Constitutional Provisions

Modern constitutions often contain provisions for States
of Emergency.115 For instance, the U.S. Constitution allows for
the suspension of habeas corpus “when in Cases of Rebellion
or Invasion the public safety may require it.”116 This principle
was called into question in 2001 after the terror attacks on
September eleventh, 2001. On November twelfth, 2001,
President George W. Bush issued a military order to protect the
United States from terrorist attacks, terrorists, or those in any

116 U.S.Const., Article 1, Section 9.

115 States of Emergencies: Part I, HARVARD LAW REVIEW,
https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/
(last visited Mar 5, 2024). “Over 90% of constitutions in force today include
emergency clauses that allow the government to step outside of the ordinary
constitutional framework and to take actions that would not otherwise be
permitted.”

114 Michael Greene, National Emergencies Act: Expedited Procedures in the
House and Senate, February 21, 2023.

113 Emergency powers | Wex | US Law | LII / Legal Information Institute,
https://www.law.cornell.edu/wex/emergency_powers (last visited Nov 26,
2023).

112 50 USC Ch. 34: NATIONAL EMERGENCIES,
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi
on=prelim (last visited Nov 26, 2023).

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way affiliated or suspected to be affiliated with Al-Qaeda.117

The government could detain and try those suspected of being
affiliated with Al-Qaeda without applying “the principles of
law and the rules of evidence generally recognized in the trial
of criminal cases in the United States district courts.”118 This
order led to a landmark case, Hamdan v. Rumsfeld, in 2006,
which raised questions about the limits on Executive power.119

In the case, Salim Ahmed Hamdan was captured by
militia forces in Afghanistan and turned over to the U.S.
military, after which he was transferred to the Guantanamo Bay
military detention center.120 In April of 2004, Hamdan
petitioned for a writ of habeas corpus in federal district court.
However, before the court could rule on his petition, a military
tribunal designated him as an enemy combatant.121 The district
court granted Hamdan’s petition and ruled that he must be
allowed a hearing to determine his status as a prisoner of war
under the Third Geneva Convention before he could be tried by
a military tribunal.122 This decision was reversed by the Circuit
Court of Appeals for the District of Columbia with the
rationale that the Geneva Convention could not be enforced by
federal courts and that the military tribunals were authorized by
Congress and were therefore not unconstitutional.123

The Supreme Court held, in a 5-3 decision, that the
Bush Administration’s attempt to try a prisoner of war (the
plaintiff) by a military commission was outside the bounds of

123 Id.
122 Id.
121 Hamdan v. Rumsfeld, supra note 119.

120 Peter J. Spiro, Hamdan v. Rumsfeld. 126 S.Ct.2749, 100 Am. J. Int. Law
888 (2006).

119 Hamdan v. Rumsfeld, Oyez, https://www.oyez.org/cases/2005/05-184
(last visited Nov 28, 2023).

118 Id.

117 President Issues Military Order,
https://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011
113-27.html (last visited Nov 26, 2023).

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executive powers and violated the constitutional rights of the
plaintiff.124 This decision imposed a clear limit on emergency
executive authority. However, this constraint was soon
disregarded when Congress passed the Military Commissions
Act (MCA) in 2006, eliminating the right of habeas corpus to
prisoners at Guantanamo Bay and other detainment facilities.125

B. Powers Granted to Government during Emergencies

The United States Constitution does not detail any
extraordinary executive powers in times of emergency or war.
However, many scholars believe that the Framers implied these
powers by creating an Executive Branch that is more efficient
than the Legislative Branch.126 For this reason, Congress
passed the NEA, granting the president 123 statutory powers
during a declared emergency—ensuring that during a national
emergency, decisions could be made quickly and efficiently to
protect the nation.127 Seven years later, the Supreme Court's
decision in Immigration and Naturalization Service v. Chadha
emphasized a check to emergency executive power by restating
the traditional position that Congress can not veto an
administrative decision with a majority vote, a two-thirds

127 Executive Powers Are a National Emergency - Harvard Political Review,
https://harvardpolitics.com/executive-powers-emergency/ (last visited Nov
26, 2023).

126 Emergency powers, supra note 113.

125 Legal Resources | Intelligence Committee,
https://www.intelligence.senate.gov/laws/military-commissions-act-2009-tit
le-xviii-national-defense-authorization-act-fiscal-year-2010 (last visited
Nov 28, 2023).

124 Office of the Solicitor General | Hamdan v. Rumsfeld - Brief (Merits) |
United States Department of Justice, (2014),
https://www.justice.gov/osg/brief/hamdan-v-rumsfeld-brief-merits (last
visited Nov 27, 2023); Hamdan v. Rumsfeld, United States Reports, June 29,
2006; NCC Staff, “  Hamdan v. Rumsfeld: Applying the Constitution to
Guantánamo prisoners”, June 19, 2017.

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majority is required in order to override executive power.128

Although this ruling established a greater balance between
Executive and Legislative powers, it still did not impose a
significant enough limit of Executive power. This “legislative
veto” that was reinforced for the NEA following the Chadha
decision, has led to a situation where it is nearly impossible to
collect enough votes to block declarations of emergencies.129

Individual states in general have their own separate
laws relating to States of Emergency. In times of crisis, the
governor has the power to declare a State of Emergency, at
which point executive powers are increased. However, state
legislatures generally have relatively strong checks on
executive power, even in exigent circumstances.130 For
example, state laws on executive authority cannot be changed
by an executive order, and legislatures can create firm limits on
executive power.131 These widespread checks demonstrate that
bulwarks against growing executive power are a crucial

131 Id.

130 Legislative Oversight of Emergency Executive Powers,
https://www.ncsl.org/about-state-legislatures/legislative-oversight-of-emerg
ency-executive-powers (last visited Nov 26, 2023).

129 Trust the Process: How the National Emergency Act Threatens
Marginalized Populations and the Constitution—And What to Do About It,
N.Y.U. REVIEW OF LAW & SOCIAL CHANGE (2020),
https://socialchangenyu.com/harbinger/trust-the-process-how-the-national-e
mergency-act-threatens-marginalized-populations-and-the-constitution-and-
what-to-do-about-it/ (last visited Mar 5, 2024).

128 Immigration and Naturalization Service v. Chadha, United States
Reports, June 23, 1983. This case called into question a section of the
Immigration and Nationality Act which allowed either House of Congress
to suspend the deportation rulings of the U.S.Attorney General. The
Constitutional question was whether the separation of powers doctrine was
violated by authorizing a veto of executive power from only one House of
Congress. The decision was 7-2, the Court held that the Immigration and
Nationality Act did in fact violate the Constitution. The consequences of
this were that Congress essentially needed a two-thirds majority to override
executive power because a simple majority in both Houses would be vetoed
by the President.

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component of preserving the necessary balance of power
between the arms of the government of a constitutional
republic.

IV. Proposed Reforms

During times of crisis, a fine line must be walked by the
Executive branch as to the extent of its powers. However,
without proper limits and regulations on Executive emergency
powers, there is no guarantee that the Executive branch will
limit its powers.

“As long as the two elements [law and life] remain
correlated yet conceptually, temporally, and
subjectively distinct ... their dialectic [...] can
nevertheless function in some way. But when they tend
to coincide in a single person, when the state of
exception, in which they are bound and blurred
together, becomes the rule, the juridico-political system
transforms itself into a killing machine.”132

The dangers of an unlimited government cannot be
understated. Our current system allows for a situation in which
the president seizes considerable power under the guise of
protecting the nation against an emergency.133 To address this
problem, Congress ought to create a set definition, and/or
series of conditions, for declaring a State of Emergency. This
would remedy the potential concern that the Executive branch
can declare an emergency during a non-emergent situation.
However, defining such a broad concept is a difficult feat and
Congress would have to create and pass a law that defines and

133 Executive Powers Are a National Emergency - Harvard Political Review,
supra note 127.

132 Agamben, Giorgio, “The State of Exception” (Kevin Attell trans., Univ.
of Chi. Press 2005) (2003), 86.

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narrows emergency powers. Some disasters are completely
unexpected and cannot be anticipated in such a way. In such a
case, there should be a condition that Congress must approve
of the determination of a State of Emergency. This would
prevent unnecessary renewals of States of Emergency and
ensure that our rulers cannot take liberties with emergency
powers.

V. Conclusion

A potentially dangerous situation is created when the
Executive Branch is granted an exceeding amount of power
during any national emergency. The argument that this
discretion increase is necessary as it expedites a usually
lengthy decision-making process during circumstances in
which time is often finite, willfully ignores the threat of
unrestrained presidential power. Regardless of conditions,
unchecked executive power is a threat to democracy.

Delineating between necessary and superfluous power
in times of calamity is a difficult job, but one the American
legislature must take head-on, considering the history of
rampant abuse of emergency executive power.134 The 100-plus
powers granted to the president during a declared State of
Emergency include giving the president the power to deploy
U.S. troops to any foreign country, take over domestic
communications, and seize American bank accounts.135 These
powers are enormously broad and, without proper oversight,

135 Elizabeth Goitein, Joseph Nunn, “Emergency Powers”, Brannan Center
for Justice,
https://www.brennancenter.org/issues/bolster-checks-balances/executive-po
wer/emergency-powers.

134 States of Emergencies: Part I, HARVARD LAW REVIEW,
https://harvardlawreview.org/blog/2020/04/states-of-emergencies-part-i/
(last visited Mar 5, 2024).

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can easily be abused by over-ambitious politicians.136 Although
the NCA exists as a sort of safeguard, it is not strong enough to
place adequate restrictions on emergency executive
powers—mainly because it fails to define what qualifies as an
emergency.137 The NCA grants a president the power to declare
a State of Emergency simply by signing an executive order.
Although the law creates a semi-time limit for these powers, it
allows the president to renew the State of Emergency status
indefinitely.138

The checks and balances put in place by the founding
fathers must be protected from erosion. Separation of powers is
key to maintaining a limited executive branch, without which
there is a danger of dictatorial power. The current legislative
framework, while designed with the intention of swift and
decisive action in times of crisis, also fails to ensure an
equilibrium between executive agility and legislative oversight.
Such a balance is crucial not only for safeguarding democratic
principles, but also for maintaining public trust in
governmental institutions. The development and
implementation of stricter guidelines and definitions of States
of Emergency would serve as a vital step toward mitigating the
risk of abuse. The ultimate goal should be the creation of a
framework that allows for the effective management of crises
while simultaneously protecting the democratic freedoms and
liberties of the United States.

138 50 USC Ch. 34: NATIONAL EMERGENCIES,
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter34&editi
on=prelim (last visited Nov 26, 2023).

137 Id.

136 Trust the Process: How the National Emergency Act Threatens
Marginalized Populations and the Constitution—And What to Do About It,
supra note 129.

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