How Courts Can Protect Democracy From Abuse of Emergency Powers

Elected leaders establishing autocracies often use emergencies, real or imagined, to justify measures that undermine democracy. Justice Robert Jackson’s opinion in the Youngstown case, after discussing the then-recent experience of Hitler using emergency powers to subjugate democracy in Nazi Germany, said that “emergency powers … tend to kindle emergencies,” which provide “a ready pretext for usurpation.” The Supreme Court has not taken concerns about democracy loss seriously in its separation of powers opinion since then, even though Hungary’s Viktor Orbán and Turkey’s Recep Tayyip Erdoğan both used emergency powers as tools to subjugate democracies. Indeed, when Dona

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