Updated October 9, 2026
State of exception The state of exception is a situation in which a government’s chief executive, by proclamation or order, directs departments, bureaus, or other administrative-branch units under his/her authority to suspend one or more parts of the constitution or legal order for select individuals and/or groups or categories of people. The legal order (or parts of it) is suspended in order to uphold it. The executive justifies the suspension or reduction of legal protections because of actual, or alleged, very severe internal and/or external threats.
Emerged The modern state of exception emerged from the first republican constitutions written by 18th century French revolutionaries. Since then, these types of constitutions, explicitly or implicitly, confer on the executive powers to issue decrees, orders, directives, and the like that have the force of law without the approval of the legislature.
US presidents All US presidents since George Washington, excluding William Henry Harrison (who died shortly after his inauguration), have exercised powers of exception; most obviously, by issuing Executive Orders that have the force of law but do not need Congressional approval. Executive Orders—written by the White House Counsel, federal agencies’ relevant subject-matter experts and lawyers, and Office of Legal Counsel (OLC) in the Department of Justice(DOJ)[1]—instruct federal agencies and officials how to implement, enforce, or prioritize existing law, thereby shaping it,[2] or direct executive-branch agencies and officials how to manage their operations and personnel.[3] The first such order was issued by Washington on June 8, 1789, requiring “the heads of all federal departments . . . to ‘impress me with a full, precise, and distinct general idea of the affairs of the United States.’”[4] T. Roosevelt issued 1,801 Executive Orders, Wilson over 1,800, Coolidge about 1,200, Hoover just over 1,000, FDR (at the time, called “dictator” by his detractors) holds the record with 3,721, Truman issued 907, Obama 276, Biden,162, and Trump 496 (220 in 1st term and, as of Aug 2026, 276 in 2nd), for a grand total of over 14,000 Executive Orders since Washington.
In addition, US presidents since Washington have issued tens of thousands of proclamations, memoranda, and said-to-be-routine administrative orders with the force of law without Congress’s approval. Trump, by August 2026 in his 2ndadministration, issued a total of 332 memoranda and 743 proclamations, with 89 of the later classified as substantive policy actions.[5] The use of memoranda, proclamations, and the like is a frequent, often daily, practice of presidents.
Moreover, since the establishment of the National Security Council in 1947, every president since Truman has issued National Security Directives (NSDs) that have legislative force, even though the legislature, Congress, has not been involved. NSDs are usually addressed to the National Security Council and senior executives in foreign, defense, and intelligence agencies. They embody policy-making guidance rather than specific instructions. According to one estimate, at least 1500 to 2000 NSDs have been issued since1947; most likely, many more because a significant portion of these documents remains classified and undisclosed.[6]
Another instrument of governance by exception are Presidential Emergency Action Documents (PEADs). Classified as “secret” and not subject to congressional oversight, PEADs are draft executive proclamations, messages, or other-named documents prepared for the president “by interagency working groups led by the Department of Justice (DOJ) . . . in coordination with the Federal Emergency Management Agency (FEMA) and the National Security Council (NSC),”[7]and “ready to sign and put into effect the moment” a presidentially-proclaimed emergency is said to exist.[8] PEADs “seem to have originated in the Eisenhower administration,”[9] and aside from their existence, little else is known about them; such as exact date for the first one, actual wording of each, total number, and so on. It’s generally thought that all presidents since Eisenhower either used or amended PEADs and were prepared to use them.
PEADs are “sometimes referred to as ‘secret powers’ of the president,” and although “there were academic articles and books discussing them since the 1980s, explicit public discussion about PEADS in the media did not begin until March 2020 when President Donald Trump said: “‘I have the right to do a lot of things that people don’t even know about.’”[10](Here, Trump sounds like one of the theorists who directly shaped the US Constitution, John Locke: “a good prince . . . cannot have too much prerogative[; i.e.,]. . . . the power to act . . . without the prescription of law, and sometimes even against it.”[11]) Trump’s PEAD secret powers “include suspension of habeas corpus by the executive (not by Congress, as assigned in the Constitution) detention of US citizens suspected of being ‘subversive’ warrantless searches and seizures and the imposition of martial law.”[12]
Presidents also issue signing statements and non-signing (spoken) statements, pronouncements that one or more sections of the law being signed, or verbally commented on, are unconstitutional; therefore, not binding and need not be enforced or obeyed. These statements are drafted collaboratively by the Department of Justice’s Office of Legal Counsel (OLC), the White House Counsel’s Office, and usually in coordination with relevant executive branch agencies and policy staff. By definition, these statements are not powers of exception because they do not formally have the force of law. However, there is evidence that in some instances they do affect agency policy and, in those instances, have the force of law and are powers of exception. Presidential administrations have used signing and non-signing statements that have challenged thousands of sections of legislation.[13]
Executive Orders, National Security Directives, PEADs, signing and non-signing statements, memoranda, and so on are constitutional. Trump is NOT, as Andrew McCarthy claims, “unmoored from the Constitution.”[14]
Nor was the Cheney-Bush administration[15] unconstitutional when Bush declared Cheney’s “War on Terror” on September 20, 2001, nine days after the officially- and history book-named “September 11 ‘attacks;’” actually, “unintended consequences of. . . . American clandestine operations in Afghanistan”[16] and other US actions, such as stationing American troops in Saudi Arabia. The Cheney-Bush war was constitutional even though it included the establishment of the Guantanamo Bay extrajudicial detention camp, torture, warrantless surveillance, and passage of the Patriot Act and the Authorization for Use of Military Force (AUMF) that institutionalized permanent emergency measures.[17]
(Significantly, but parenthetically here because of the need for more research, the state of exception is supported by the unitary executive theory, whose proponents first came to institutional power inside the Reagan administration in the 1980s and attained significant influence during the Cheney-Bush administrations in the 2000s. Moreover, the unitary executive theory has achieved major legal support from the Supreme Court, beginning with rulings in 2020.)
The modern world Nation-states in the modern world of industrialization, electrification, bureaucratization, the Internet, online information, computerization and high tech, globalization, severe ecological crises—coupled with sustained threats from nation-states and non-state actors with inexpensive, lethal off- and online weapons—can only be effectively governed by chief executives with normalized state of exception powers; these powers must be written and implemented by specialized administrative, expert executive-branch units working in symbiotic relationships with high-tech corporations, financial institutions, agribusiness, the pharmaceutical industry, and all other major enterprises. Gerald Gryski—in his aptly titled book, Bureaucratic Policy Making in a Technological Society—explains why the executive branch of modern government, rather than the legislative, is primary, why chief executives and their administrative units dominate: “of all the institutions [branches] of . . . government, the bureaucracy [executive branch] is best suited to devise policies appropriate to the kinds of problems facing society. This policy role is exercised in implementing adopted programs as well as developing programs for possible adoption. . . . [T]he bureaucracy [executive branch] exercises key policy making power, largely due to the tools and skills it has.”[18]
(Significantly, but parenthetically here because of the need for more research, the state of exception is supported by the unitary executive theory, whose proponents first came to institutional power inside the Reagan administration in the 1980s and had significant influence during the Cheney-Bush administration nitration in the 2000s. Moreover, the unitary executive theory
Normalized State of Exception (NSE) Normalized state of exception (NSE) is my name for the governmental and political situation in America and in other “so called democrac[ies],”[19] and—for various durations of time—in most other nations, however named. The state of exception, since the 20th century, has become the norm (the exception is the rule[20]), as executive, police, and military powers are increasingly and permanently integrated into normal law. In NSE government and politics, chief executives and department officials, as well as heads of bureaus, agencies, offices, services, and divisions make optimal use of high tech to advance their culture and political ideology, further increasing the power of the chief executive and executive-branch units for more effective control of society.
Post-Trump I don’t see any Alinsky-type “levers for change,” any Marxist “contradictions,” any regular political or legal actions that can fundamentally alter the US’s post-Trump NSE situation, or NSE governments and politics in other countries. Of course, continuous, well-aligned incremental changes might lead to significant breakthroughs over time.
Here are a few sources to better understand NSE government and politics: Giorgio Agamben, State of Exception(Chicago, 2005); John Ganz, When the Clock Broke: Con Men, Conspiracists, and How America Cracked Up in the Early 1990s (Farrar, Straus, and Giroux, 2024); Laura K. Field, Furious Minds: The Making of the MAGA New Right(Princeton, 2025); Mark Lilla, The Shipwrecked Mind: On Political Reaction (New York Review Books, 2016).
[1] AI Overview Google Search who writes executive orders for the president accessed 9/13/2026
[2] AI Overview Google Search do executive orders shape policy accessed 8/26/2026
[3] AI Overview Google Search what can executive orders do in addition to shaping policy accessed 8/26/2026
[4] Robert Longley, “Executive Orders Definition and Application,” Thoughtco.com (Jun 10, 2025) https://www.thoughtco.com/presidential-executive-orders-3322125 accessed 8/26/2026 See also, “Executive order,” Wikipedia https://en.wikipedia.org/wiki/Executive_order accessed 8/24/2026
[5] AI Overview Google Search how many memoranda and proclamations by trump in 1st administration and in 2nd to date accessed 8/28/2026
[6] AI Overview Google Search estimated total number of national security directives issued since 1947 accessed 8/29/2026; “National security directive,” Wikipedia https://en.wikipedia.org/wiki/National_security_directive accessed 8/29/2026
[7] AI Overview Google Search who prepares presidential emergency action documents (PEADs) for the president accessed 9/13/2026
[8] “Presidential Emergency Action Documents,” Wikipedia https://en.wikipedia.org/wiki/Presidential_Emergency_Action_Documents accessed 9/2/2026
[9] “Presidential Emergency Action Documents,” Wikipedia https://en.wikipedia.org/wiki/Presidential_Emergency_Action_Documents Emphasis added accessed 8/31/2026
[10] “Presidential Emergency Action Documents,” Wikipedia https://en.wikipedia.org/wiki/Presidential_Emergency_Action_Documents accessed 9/3/2026
[11] John Locke, Second Treatise of Government, Chapter XIV Of Prerogative https://www.gutenberg.org/files/7370/7370-h/7370-h.htm#CHAPTER_XIV accessed 9/6/2026
[12] Elizabeth Goitein and Andrew Boyle, “Trump Has Emergency Powers We Aren’t Allowed to Know About,” New York Times (April 10, 2020) https://www.nytimes.com/2020/04/10/opinion/trump-coronavirus-emergency-powers.html accessed 9/3/2026
[13] I will do additional research on signing and non-signing statements (including sources of information) before this blog post becomes a part of my book-in-progress, The Internet+ Age: Definitions, Descriptions and Implications.
[14] Andrew McCarthy, “Trump’s Messy Courtroom Drama,” National Review (Apr 16, 2026) https://www.nationalreview.com/magazine/2026/06/trumps-messy-courtroom-drama/ accessed 8/24/2026.
[15] There are many accounts of Vice President Richard Cheney’s dominance in the George W. Bush administrations, including Barton Gellman, Angler: The Cheney Vice Presidency ((Penguin, 2009); John Nichols, The Rise and Rise of Richard B. Cheney (New Press, 2005), esp. pp. vii-ix, 1-10, 197-224; Shirley Anne Warshaw, The Co-Presidency of Bush and Cheney (Stanford, 2009).
[16] See, for instance, Chalmers Johnson, “American Militarism and Blowbacks: The Cost of Letting the Pentagon Dominate Foreign Policy,” New Political Science 24:1 (2002), p. 21. Emphasis added.
[17] AI Overview Google Search was the george w bush administration a state of exception accessed 9/6/2026
[18] Gerald S. Gryski, Bureaucratic Policy Making in a Technological Society (Schenkman, 1981), pp. 6, 227. On the power of the executive branch, see also: Dwight Waldo, The Administrative State: A Study of the Political Theory of American Public Administration (Routledge, 1948/2006); Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928 (Princeton, 2020); Philip Hamburger, Is Administrative Law Unlawful? (Chicago, 2015); Joseph Postell, Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government (Missouri, 2023)
[19] Giorgio Agamben, State of Exception (University of Chicago, 2005), p. 2.
[20] Giorgio Agamben, State of Exception (University of Chicago, 2005), p. 6.