The State of Exception, Sovereignty, and the National Emergencies Act

“The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2013, the national emergency with respect to the terrorist threat.”

–      President Barack Obama, 10 September 2013[2]

On 10 September 2013, President Barack Obama quietly extended the “state of emergency” in the United States for the twelfth year since the 9/11 terrorist attacks on the World Trade Center and Pentagon.  This “state of emergency” is essentially a state of exception in Schmittian terms.   By declaring a national emergency, the president reveals himself as the sovereign and establishes the Greek tradition of iustium or suspension of the law.  Yet as we shall see, the state of exception is viewed differently by Carl Schmitt, the term’s master carpenter, and Giorgio Agamben, its contemporary theorist.

The goal of this paper is to compare these two thinkers, separated by nearly eight decades.  Obviously any analysis so brief as this cannot pay worthy tribute to the works of these two philosophers; however, it is my hope to at least deliver a sufficient précis that readers will take away the main theses and sentiments and appreciate how the theory of the state of exception applies to present day.   To that end, in an effort to achieve both brevity and conceptual clarity, this paper will focus primarily on Schmitt’s 1922 publication, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwag translation, University of Chicago, 2005 edition) and Agamben’s 2003 essay, The State of Exception (Kevin Attell translation, University of Chicago, 2005 edition).

Political Theology and the State of Exception

“Sovereign is he who decides on the exception.”[3]

For Schmitt, the sovereign is one who lies dormant, neither sleeping nor entirely active, unknown and unidentified during the normalcy of the juridical order.  While rules and laws can govern over routinized normal conditions, “all law is ‘situational law’.”[4]  Exceptions will arise, which can neither be predicted nor “circumscribed factually and made to conform to a performed law”[5]. It is in this state of exception, which “can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like” that the sovereign reveals himself.[6]  Because the exception “is not codified in the existing legal order,”[7] it demands a decision. Only the sovereign is capable of making such a decision.

Accordingly, Schmitt’s sovereign exists in the indistinct boundary between the normal juridical order and the state of exception, between the norm and the decision.   When the state of exception arises, the sovereign reveals himself by means of making such decisions, outside the bounds of the law, so as the preserve the law.  In suspending the law, effectively establishing the Roman tradition of iustium, the sovereign is able to decide, rule on the exception, and create the necessary conditions for the return to juridical order.

This differs from the sovereign defined by Jean Bodin, perhaps one of the term’s earliest philosophers, in his work Six Books of the Commonwealth. While Bodin sees the sovereign as absolute, indivisible, and eternal, for Schmitt the sovereign is sempiternal – manifested at the state of exception and receding to a minimum at some uncertain point in the future when normal juridical rule is restored.  Because the moment of the restoration of juridical rule is uncertain, we can consider the sovereign to rule into some indefinite period in the future.

Sovereign as Dictator

For Schmitt, the state of exception is a personalized dictatorship, wholly juxtaposed to the impersonal Weberian rational-legal authority that arose out of the Protestant Reformation.  Whereas the normal juridical order can operate based on established norms and laws, engaging in endless discussion without decision, Schmitt contends that in the state of exception, a decision is paramount for state survival and only the sovereign has the authority to decide. The suspension of the juridical order is justified by the exception and the existential threat it poses to the state.  In the state of exception, the sovereign has “principally unlimited authority, which means the suspension of the entire order” and therefore “[the] decision frees itself from all normative ties and becomes in the true sense absolute”.[8]  While the state remains, the norm is suspended and in question.  The ultimate decision of the sovereign during the state of exception is whether to restore the suspended constitution or to fashion a new juridical order.

As Agamben has appropriately pointed out, an understanding of the sovereign in Political Theology requires a basic conceptualization of Schmitt’s two notions of dictatorship as described in his 1921 essay, On DictatorshipCommissarial Dictatorship is “a state of law in which the law is not applied, but remains in force”[9] and “which has the aim of defending or restoring the existing constitution.”[10]  Conversely, Sovereign Dictatorship “(in which the old constitution no longer exists and the new one is present in the ‘minimal’ form of constituent power) represents a state of law in which the law is applied, but is not formally in force;”[11] and “it aims at creating a state of affairs in which it becomes possible to impose a new constitution.”[12]

The State of Exception as the Rule

For Agamben, this confounding of the state of exception with dictatorship is a dangerous fallacy, permitting the exception to become the rule.   Indeed this is the first conclusion drawn from his “genealogical investigation of the iustitium”.[13]  He contends,

“The state of exception is not a dictatorship (whether constitutional or unconstitutional, commissarial or sovereign) but a space devoid of law, a zone of anomie in which all legal determinations – and above all the very distinction between public and private – are deactivated.”[14]

Accordingly, the state of exception, which is the suspension of the juridical order in toto, cannot be classified as a dictatorship, which in fact is a form of juridical order.  It stands as something entirely of its own, and yet, connected to the juridical order vis-à-vis their interwoven fates.

This confounding of dictatorship with the state of exception has had a profound effect on the physiognomy of the modern state.  Since the First World War, the line between the exception and the norm has been narrowed.  For our purposes, it is worth quoting Agamben at length on this:

“As long as the two elements remain correlated yet conceptually, temporally, and subjectively distinct (as in republican Rome’s contrast between the Senate and the people, or in medieval Europe’s contrast between the spiritual and the temporal powers), their dialectic – though founded on a fiction – can nevertheless function the same 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, then the juridico-political system transforms itself into a killing machine.”[15]

Thus, Schmitt’s commissarial dictator becomes the sovereign dictator, waging a “legal civil war” in a modern totalitarian state, “that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system.”[16] The normative notions of law-breaking, law-enforcing, and law-preserving actions become blurred, or in actuality cease to exist because the state of exception is one of suspended law.  Only after the resumption of the juridical order can these actions be considered for their normative characteristics.  This naturally makes the permanence of the state of exception (by transforming it into the rule) all the more appealing.   As a result, “the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states, including so-called democratic ones.”[17]

Thus it is not likely that Agamben would be surprised by the memorandum entitled “Continuation of the National Emergency Message” that President Barack Obama quietly issued to the US Congress on 10 September 2013.  Nor is it likely that he would find it strange for this letter to go unnoticed by most of the American and global press.  The National Emergency Act of 1976 – which essentially creates a state of exception whereby the US president can “seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens”[18] – sought “to loosen what has been artificially and violently linked”[19].  Yet the fact that since 1976 the emergency order has been implemented 33 times with little debate, indicates that this law has failed to disentangle the norm from the decision. On the one hand, Obama’s memorandum marks the president as sovereign and the continued of state of exception in the US.  On the other, the lack of attention and discussion surrounding the order implies that indeed the norm has been replaced by the decision as the norm.

For Agamben, the state of exception has indeed become permanent.  The outlook for the future is bleak.  “From the real state of exception in which we live, it is not possible to return to the state of law [stato di diritto], for at issue now are the very concepts of ‘state’ and ‘law’.”[20] For him, the only hope is that the countermovement, working to separate the juridical order from the state of exception continues to “rage, rage against the dying of the light.”[21]


[1] Presentation paper for POT 6505: Politics and Theory, Professor Dietmar Schirmer, University of Florida, Gainesville, FL; 18 September 2013

[2] Obama, Barack. 2013 (10 September). Letter – Continuation of the National Emergency Message.” Office of the Press Secretary of the White House, accessible at: http://www.whitehouse.gov/the-press-office/2013/09/10/letter-continuation-national-emergency-message.

[3] Schmitt, Carl. 1922 (2005). Political Theology: Four Chapters on the Concept of Sovereignty.  George Schwab (translation). Chicago: University of Chicago, p.5.

[4] Ibid, p.13.

[5] Ibid, p.6.

[6] Ibid.

[7] Ibid, p.6.

[8] Ibid, p.12.

[9] Agamben, Giorgio. 2003 (2006). State of Exception.  Kevin Attell (translation). Chicago: University of Chicago, p.36.

[10] Ibid, p.32.

[11] Ibid, p.36

[12] Ibid, p.33.

[13] Ibid, p.50.

[14] Ibid.

[15] Ibid, p.86.

[16] Ibid, p.5.

[17] Ibid, p.2

[18] Reylea, Harold C. 2001 (September 18). “National Emergency Powers.” CRS Report for Congress, Order Code 98-505 GOV. Washington: Congressional Research Service, Library of Congress, accessible at: http://fpc.state.gov/documents/organization/6216.pdf.

[19] Ibid, p.87.

[20] Ibid, p.87.

[21] Thomas, Dylan. 1951. “Do not go gentle into that good night.”

One Reply to “The State of Exception, Sovereignty, and the National Emergencies Act”

  1. This is a great blog!!! And your essay is awesome:) I am going to develop the concept of the state of exception and Schmitt & Agamben’s ideas (except Agamben’s Chapter 6 -_-) into my final paper.

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