When the Exception is No Longer Exceptional: Executive Power, Judicial Deference, and the Constitutional Balance

Abstract

As presidents in the United States declare more emergencies to gain statutory powers—increasingly to address domestic policy issues under the guise of foreign affairs crises—what should the roles of the legislative and judicial branches be? This thesis examines whether the emergency powers architecture of the United States should be more like the Lockean prerogative or the Schmittian state of exceptionalism and how this debate has evolved. The methods used combine doctrinal analysis of Supreme Court precedent, historical analysis of the evolving political situation, and procedural analysis of the shadow docket. I demonstrate that through a series of institutional decisions in an increasingly global and complex environment, the governance architecture for emergency powers has evolved from a Lockean system to a Schmittian one of constant exceptionalism, allowing extraordinary powers to the executive by bypassing legislative deliberation and relying on judicial deference. The thesis recommends a return to a state closer to Lockean, with a set of legislative, judicial, and procedural reforms that should be evaluated in future work.