Emergency Powers and the Rule of Law: When "Temporary" Becomes Forever

Emergency powers are supposed to be exceptional. So why are over 40 US national emergencies still active? And what happens when the exception becomes the rule?

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Here's an uncomfortable fact: as of 2025, more than 40 national emergencies remain active in the United States. Most involve foreign sanctions under the International Emergency Economic Powers Act. Some have been running for decades.

Critics argue this has created what scholars call a "permanent state of emergency"—where exceptional powers meant for crises become business as usual. And this isn't just an American problem. It's happening globally, raising a fundamental question: can the rule of law survive when the exception swallows the norm?

The Ancient Problem (That Never Went Away)

Emergency powers aren't new. The Romans had a whole system for it. When invasion or insurrection threatened, the Senate would instruct the consuls to appoint a dictator. But here's the clever bit: the emergency power was limited in three ways—geographically (only affected areas), personally (clear division between friend and enemy), and temporally (six months maximum, couldn't exceed the consul's term).

The Romans understood something modern democracies seem to have forgotten: emergency powers are dangerous. They need strict limits. Otherwise, as the old saying goes, nothing is more permanent than a temporary government programme.

The Modern Reality: Emergency Powers on Autopilot

Today, 93% of constitutions have emergency provisions allowing temporary departures from ordinary law. That sounds reasonable—until you see how it works in practice.

Take Peru. It ratified the International Covenant on Civil and Political Rights in 1978 and has submitted derogation notifications almost every year since March 1983. That's over 40 years of "temporary" emergency. At what point does temporary become permanent?

Or consider Hungary, where parliament granted the Prime Minister the ability to rule by decree indefinitely during the pandemic. Even after parliament requested an end to the practice, the government passed a bill allowing declaration of a "state of health emergency" at any moment—with indefinite rule by decree.

"Temporary" is doing some very heavy lifting there.

The Renewal Trap

Part of the problem is how emergency declarations actually work. The US National Emergencies Act requires the President to assess annually whether to extend an emergency. But as some experts note, this renewal process has become "pro forma"—a rubber stamp rather than genuine reassessment.

Professor Sanford Levinson describes this as "constitutional norms in a state of permanent emergency"—where exceptional measures become so routine they fundamentally alter how government operates, without anyone officially acknowledging the shift.

When Courts Defer (And When They Don't)

Judicial oversight is supposed to be the check on emergency power abuse. Courts review whether measures remain justified and comply with constitutional standards. Sometimes this works brilliantly. Other times? Not so much.

The problem is judicial deference. When executives frame issues as national security threats, courts often give them enormous leeway. The Supreme Court upheld Japanese American internment in Korematsu v. United States (1944), citing wartime necessity—a decision now widely regarded as one of the Court's worst moments.

As one University of Miami analysis notes, judicial branches often give too much deference during emergencies, especially when "governments seem to be in a perpetual state of emergency because of fearmongering and manufactured emergencies."

The solution? Courts need to "lessen the degree of deference to the executive and legislative branches during emergencies." Easier said than done when judges worry about second-guessing security assessments.

The International Law Framework (That Doesn't Quite Work)

International human rights law tries to regulate emergency powers through strict conditions. Derogations must be publicly declared, limited in scope, proportionate, and subject to oversight. Certain rights—like freedom from torture—are non-derogable under any circumstances.

But here's the rub: as Oxford Public International Law notes, "practice reveals that the resort of States to emergency powers is far wider than that allowed under human rights conventions." Many states proclaim emergencies without following required procedures. Many more resort to emergency powers without declaring emergencies at all—creating de facto states of emergency invisible to international oversight.

And "in numerous cases, states of emergency are not temporary situations, but have become entrenched in the domestic legal order."

The Inter-American Court of Human Rights has been explicit: temporary derogation is only permissible in serious emergencies, with temporariness inherent to the requirement of proportionality.

Interestingly, the European Court of Human Rights explicitly rejected the requirement that emergencies be temporary. Which either shows flexibility or reveals a massive loophole, depending on your perspective.

The COVID Test Case

The pandemic provided a global test of emergency powers. Results were... mixed.

Fifteen states submitted emergency derogations to international human rights bodies, mostly from Eastern Europe and Latin America. As research in the International Journal of Constitutional Law found, these regions have "experienced democratic backsliding in recent years, and the decline in democracy worsened during the COVID-19 outbreak."

Meanwhile, many Asian and African states didn't invoke constitutional emergency powers, despite facing severe health crises. Why? "[R]ecent memories of emergency powers being used to suppress rights and freedoms discouraged governments" from going down that path.

Which raises an uncomfortable question: are emergency powers tools for managing crises, or opportunities for power grabs dressed up as necessity?

The Creeping Normalisation Problem

The real danger isn't dramatic coups. It's normalisation. When societies move from one crisis to another—terrorism, pandemic, climate disasters, economic shocks—emergency governance risks becoming the default.

Surveillance expanded after 9/11? Still there. Movement restrictions during COVID? Some remain. Expanded executive authority during the financial crisis? Never quite went away.

Each emergency leaves residue. Measures introduced as temporary become entrenched. Powers granted for one purpose get repurposed for others. Over time, the line between emergency governance and ordinary administration blurs until you're not sure which side you're on anymore.

The Accountability Gap

Emergency frameworks typically concentrate power in executive hands, reducing transparency and limiting legislative scrutiny. As Simon Chesterman notes in his work on the UN and emergency powers, whereas states traditionally invoke emergencies to justify stretching the rule of law, for international organisations "the existence of an emergency is a prerequisite to invoking the rule of law at all."

This creates what researchers call "IO exceptionalism"—emergency powers that "have a tendency to normalize and become permanent features of the institution."

The Reform Dilemma

Reformers propose various fixes: requiring explicit congressional approval after fixed durations, limiting statutory authorities triggered by emergencies, enhancing judicial review, clarifying what counts as legitimate derogation versus ordinary limitation of rights.

But there's a counterargument. Flexibility is essential in a world of unpredictable threats. Excessive legal rigidity could cost lives. Sometimes governments need to act fast.

As scholars note, there's a fundamental tension between the need for "dispatch" in emergencies and democratic deliberation. Neither Alexander Hamilton's argument that emergency powers must be unconstrained nor Carl Schmitt's claim that "sovereign is he who decides on the exception" offers satisfying answers.

The Uncomfortable Truth

The rule of law is tested not during normal times, but during crises. How states use—and relinquish—emergency powers reveals whether legal limits are genuine safeguards or merely aspirational.

International law doesn't prohibit emergency powers. It demands they remain exceptional. The challenge is ensuring necessity doesn't become a permanent justification.

Because here's what nobody wants to admit: we might already be there. When over 40 emergencies run simultaneously for decades, when renewal is automatic, when extraordinary powers become ordinary tools of governance—at what point do we stop pretending these are exceptions?

Emergency powers were designed for exceptional circumstances. The Romans knew to limit them to six months. We've somehow convinced ourselves that "temporary" can last forty years.

The rule of law requires that government operate within legal constraints, that power be accountable, that exceptions remain exceptional. When everything is an emergency, nothing is. And when temporary measures become permanent, the exception hasn't just become the rule—it's become the entire system.