Unconstitutional States of Emergency

Christian Bjørnskov, Stefan Voigt and Mahdi Khesali

The Journal of Legal Studies, 2022, vol. 51, issue 2, 455 - 481

Abstract: Nine of 10 modern constitutions contain explicit emergency provisions describing who can declare a state of emergency (and under what conditions) and the additional powers the government enjoys under a state of emergency. As states of emergency typically allocate additional powers to the executive, they lend themselves easily to abuse and provide political incentives to declare emergencies. In this paper, we analyze the conditions under which government behavior under a state of emergency deviates from constitutional provisions and a gap between de jure provisions and de facto behavior thus results. In a novel data set comprising 853 emergency declarations, 115 are identified as unlawful. We find that autocratic governments are more likely than democratic governments to violate the constitution. The requirement that a second chamber approve the emergency declaration is associated with a higher likelihood of its being unconstitutional.

Date: 2022
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Working Paper: Unconstitutional States of Emergency (2021)
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