This article discusses the content and causes of emergency powers in democratic states. It makes two main contributions. First, it introduces the Democratic Emergency Powers dataset, which codifies formal rules of institutional change during periods of emergency for all democracies from 1800 to 2012. These data are important because often state institutions in times of emergency differ dramatically from those in times of relative peace, and this influences government decision-making during times of crisis. I discuss the collection process and develop a measure of the latent strength in each of these emergency provisions. Second, this article examines the determinants of emergency power strength in democratic nations cross nationally. I find that previous and current conflict experience influence emergency power provision and strength, but also that domestic determinants have an impact on the types of instruments states institutionalize for times of emergency.

Introduction In the past decade, states of emergency have been declared in Ecuador (2010), France (2015), Belgium (2015), Turkey (2016), the Philippines (2016), and the United States (2019), in response to terrorist violence, coup attempts, and domestic disturbances. These seemingly undemocratic events find homes in the laws of many democratic states, as from 1800 to 2012, 80 democracies—over half of all democratic country-years during this period—formally instituted “emergency power” provisions specifying a shift in the institutional structure of the nation during times of crisis. Examining each of these cases demonstrates how the effects of these emergency powers can be quite dramatic and long lasting, particularly the frequency of their abuse (Rooney, 2019). However, outside early theoretical work (Rossiter, 1948), we know very little about the causes and consequences of these powers. In this article I introduce the Democratic Emergency Powers (DEP) dataset, which codifies the formal rules regarding states of emergency in democracies across time, including the circumstances in which states of emergency can be declared, how long they last, the state’s institutional structure during the state of emergency, and the extent and limitations of the powers granted to the state’s leader to combat the crisis. Using Bayesian factor analysis, I develop a measure of the latent strength of the power of the executive in each emergency provision. I then empirically examine the origins of these powers. Elements that lead to an expectation of future turmoil, such as a history of violent political conflict or a looming international threat, increase the likelihood that states adopt stronger emergency powers. Additionally, states enact stronger emergency provision when they posses elements that exacerbate a time of emergency, such as features of the state that could increase grievance or decrease the government’s control during times of crisis. These data allow the empirical examination of emergency provisions in democratic states, and provide the first quantitative analysis of their causes.

A database of emergency provisions Emergency provisions are legal acts that empower the government to take actions beyond its standard procedures in times of grave crisis, such as an external conflict, domestic rebellion, or natural disaster. Tracing their origins to the Roman Republic (Rossiter, 1948), emergency provisions are common institutional features of democratic states with a variety of constitutional arrangements, and have been adopted consistently with the spread of democracy. Each provision is designed to overcome restraints on necessary action during periods of national distress. However, emergency provisions widely vary in terms of the power that states grant to the executive to combat a period of crisis. Each emergency provision highlights the extraordinary nature of the threat to the democratic order and national survival. Yet how states choose to combat this threat is often very different. This variation is evident in the required cause of an emergency, ranging from armed aggression against the nation (Moldova, 1994) to any apparent threat of public danger (Serbia, 2006). It is even more prominent in the range of powers granted to the leader of the nation, where some provisions do little to shift the balance of power between consulting government actors such as the President and Prime Minister (Portugal, 1976), and others grant the state leader the power to act above all others to do what is “strictly necessary to repel the aggression” (Columbia, 1992, Article 212). To understand the importance of emergency powers, it is therefore vital to capture this variation in strength. To this end, I have developed the DEP dataset. The data cover all states scoring 6 or higher on Polity’s composite Polity2 score for each year from 1800 to 2012 (Marshall and Jaggers, 2001). Under this criteria, 113 states are democratic for at least 1 year, from which there are 147 individual constitutions and over 500 potentially relevant amendments and legislative acts for democratic states. Examination of these documents provides 172 unique emergency power provisions. For each provision, I first apply a simple coding procedure to categorize each emergency provision according to their dominant sources of variation. I first assess when a formal state of emergency can be declared according to each document. This includes first whether the democracy legally provides for a state of exception and what government actors or bodies can formally declare the state of emergency. I then code a series of indicators of the specific circumstances—such as external attack, war, foreign aggression, civil conflict and upheaval, and natural disaster—under which actors may declare a state of emergency. I document changes to the traditional institutional order during a period of emergency, coding a series of indicators of the level of formal power diverted to the effective leader in times of emergency, using information on the effective leader for each state from Archigos (Goemans, Gleditsch and Chiozza, 2009). These measures of formal power indicate whether the power to declare an emergency belongs to the effective leader or some other political actor, or requires consultation between the leader and outside actors. I then code whether the effective leader can make use of additional powers in times of emergency and assessed the nature of these powers, regarding clarity, whether they allow the leader to take measures outside of a military scope, and whether they grant the ability to make policy declarations. Lastly, I code measures that indicate the number of prospective and retrospective checks on actions taken during an emergency, as well as formal limitations on how long policies declared during an emergency and emergencies themselves may last. This provides a series of binary, ordinal, and count measures coded such that higher values indicate greater empowerment for the leader during an emergency, To convert these factors into a measure for statistical analysis, I use Bayesian factor analysis for mixed data to derive a measure of latent emergency power strength for each document using Markov Chain Monte Carlo methods.1 In factor analytic models, the observed measures corresponding to the elements within constitutional provisions are assumed to be intercorrelated because they are driven by the same latent construct—emergency empowerment.2 Each dimension is related to the strength of the powers granted to the executive in times of emergency, but it is not obvious to what extent they contribute to strength. The measurement model leverages the variation in indicators across each individual case to model both the relationship between each indicator and the latent construct and the resultant estimate of the latent strength for each emergency power provision (Benson and Clinton, 2014). Rather than focusing on how each indicator contributes to emergency power strength, I note only that they validate expectations, and focus on the individual estimates.3 The procedure provides a continuous measure of emergency power strength for each emergency power provision in each year, ranging from -1.02 to 1.64, with mean 0 and a standard deviation of 1.4 Of the 172 legal documents in the sample, 117 begin during a democratic year, whereas 55 are holdovers from a period of non-democracy. Much of the variation in these data is cross-national (between standard deviation: 0.80). Indeed, 65% of democracies have stable emergency provisions over time, with 22% seeing one change, and only 13% having more than two emergency provisions. However, such change can be quite dramatic (within standard deviation: 0.52). To provide one example, emergency power strength in Sri Lanka ranges from -1.02 in 1957 to 1 in 1981, covering nearly the entirety of the range of emergency power strength.

Emergency power origins Although there are few direct accounts of the decision to adopt emergency powers, historical accounts of constitution-making in democracies suggest elements that influence the decision to adopt emergency powers. In this section, I explore these determinants in greater depth for democratic states from 1950–2012 using the DEP data. I model each of the predictors first as determinants of legal changes to the constitutional order and then as a determinant of emergency power provision using a Heckman selection model. I explore first the inclusion of emergency powers, for which I code all states that install formal emergency powers as 1 and all states with no formal emergency powers as 0. Second, I explore emergency power strength, where I use the full emergency power strength variable. The first determinant of executive emergency power is the strength of the executive in times of peace. Leaders that face particularly strong domestic constraints on their actions during peacetime require greater freedom of action to overcome emergency situations, especially in the case of states with a strong separation of powers and complex governments (Rossiter, 1948). Emergency powers historically result from the desire to break deadlock, and thus systems with a greater potential for institutional gridlock should be likely to prescribe stronger emergency powers. I include two measures of institutional arrangements during peacetime. I first account for the possibility that a greater number of veto points in a system leads framers to institute stronger emergency powers using POLCONIII (Henisz and Zelner, 2002). Because the balance of power in government at the time of constitutional reform might likewise influence the provision of emergency powers (Negretto, 2013), I include a measure of legislative fractionalization (Henisz and Zelner, 2002). Framers often grant emergency powers when the nation’s standard democratic institutions have proven unable to combat domestic discord. In drafting the Venezuelan Constitution of 1961, constitutional framers, like those many in nascent democracies, recalled memories of the nation’s previous experience with autocracy and its long history of domestic coups and military intervention in the government (Manrique, 1988). I test for how the quality of a state’s domestic political institutions reflects the probability of the breakdown of the normal government order in three ways. First, because democratic constitutions often specify emergency action to battle coup d’états and civil discord, I include the count of previous coup d’états in a state (Powell and Thyne, 2011). Second, states with stronger democratic institutions may be less vulnerable to internal or external conflict. As a result, I include each state’s Polity score to account for the vulnerability of peace time institutions to crisis (Marshall and Jaggers, 2001). Lastly, states that face persistent change in domestic institutions may be particularly unstable and unable to combat emergency situations. As a result, I include a measure of the occurrence of a regime change (a three-point change in Polity score), in the previous 3 years. Framers of democratic institutions also grant emergency powers to the executive due to the high stakes of international conflict. States may consider stronger emergency powers a necessity when previous conflict drives expectations of future conflict, or because a culture of conflict drives both past and future disputes. Spurred on by the memory of World War I and World War II, the constitutional framers in France in 1958 believed the constraints on the executive had undermined his ability to enact necessary policies in the face of an existential threat (Foyer, 1988). France’s constitutional process thereby granted immense power to the president in times of emergency to ensure such calamity would not recur. I measure conflict as the count of previous militarized interstate disputes involving the state up to the given year (Sarkees and Wayman, 2010). States may also consider adopting emergency powers in response to a particular threat. States often engage in interstate rivalries, continuous conflicts with the same opponent in which each conflict makes makes future conflict more likely (Colaresi and Thompson, 2002). Such rivalries lead to the rational expectation of future disputes, and the state may thus be more likely to enact emergency powers. Greece’s long-held rivalry with Turkey over Cyprus demonstrated the government’s consistent inability to gain the upper hand on their opponent (Tsatsos, 1988). Framers of the Greek Constitution of 1975 therefore sought strongly to enact provisions to ensure future governments would have the power necessary to prosecute future disputes with Turkey. I therefore include a measure for the presence of an interstate rivalry (Thompson and Dreyer, 2011). States should be equally concerned about factors that might make future internal discord more likely or dangerous. States with larger populations may fear they will be unable to control the population in an emergency, and provide greater power to the executive for such contingencies (Collier and Hoeffler, 2002). I include a measure of the natural log of the state’s population (World Bank, 2007). States may craft emergency power provisions based on their expectations of future financial burdens or collapse, which can exacerbate periods of crisis or may themselves be emergencies. To account for this, I include a measure of the health of the state’s economy, as captured by the natural log of the democracy’s gross domestic product (GDP) per capita (Gleditsch, 2002). I also include a measure of material capabilities using the Composite Index of National Capability (CINC) scores (Singer, Bremer and Stuckey, 1972), because states with stronger material capabilities should have more resources to combat or prevent emergencies (Fearon and Laitin, 2003). I present all results using state-clustered standard errors and include cubic splines for the number of years the state has been democratic to account for democratic institutional duration dependence, and for the number of years since constitutional change, as predictors of formal legal changes. Table 1 displays the results for emergency powers, whereas the results for legal change are included in the online appendix. Table 1. Determinants of new emergency powers. View larger version Looking at Model 1, I first note that 60% of the changes to the constitutional order include the provision of emergency powers, whereas 40% do not. I find that previous international conflicts are a strong predictor of emergency power provision, whereas rivalry exerts no impact on emergency power provision. This suggests it is not the external rival that drives emergency power adoption, but rather the expectation of future conflict driven by experience. Previous internal conflict is a substantively and statistically strong predictor of emergency power adoption. Combined with the positive and significant effect of regime change, this shows that states with significant or recent experience with internal discord are likely to provide for future crises. Political institutions in times of peace demonstrate a mixed relationship. Although political institutions captured by polity and veto points demonstrate no relationship, legislative fractionalization makes adopting emergency provisions less likely, perhaps because the fractured groups are unwilling to grant strong power to a single individual. Population size and GDP per capita exhibit no relationship with emergency power provision. Material capabilities, however, are a strong predictor of emergency power adoption. Model 2 captures the predictors of emergency power strength. Whereas several of the substantive conclusions remain the same, others change dramatically. Previous coups remain a strong predictor of emergency power behavior. However, although previous militarized interstate disputes were a strong predictor of emergency power adoption, they exhibit no relationship with emergency power strength. Instability as marked by a regime transition in the previous three years, although fundamental to the adoption of emergency powers, does not make emergency powers stronger. Although material capabilities do not predict emergency power strength, the size of the state’s population does, as larger states may require greater tools to handle a period of extreme crisis. The only other variable that reaches traditional levels of significance is legislative fractionalization, which again has a negative effect on emergency power provision.

Conclusion In sum, this project provides several important contributions to the study of international relations and comparative politics. The primary contribution is the systematic collection of emergency provisions in democracies across time. I codify the emergency provisions in the constitutions and legislation of 113 democracies from 1800 to 2012, including all changes or amendments, and measure emergency power strength. Additionally, I demonstrate how state level factors contribute to the decision to grant emergency powers and find that the determinants of emergency power provision and emergency power strength are only partially in agreement. A history of external conflict predicts emergency power provision, but expectations about internal turmoil seem to predict the strength of these powers to a much larger degree. These data provide an important source of comparative institutional variation for democratic states that recent history suggests is increasing in importance. Further, this institutional variation may have an impact on any number of foreign or domestic policy outcomes, such as human rights, counter terror, disaster preparedness, and domestic political competition. The possibilities stretch across many areas of study and encompass a variety of potential methodologies.

Acknowledgements I would like to thank D. Scott Bennett, Brett Benson, Tyson Chatagnier, Josh Clinton, Matthew DiLorenzo, Cindy Kam, Brenton Kenkel, David Lewis, James Lee Ray, Gabriel Negretto, Ken Schultz, Hye Young You, the Brennan Center for Justice, the editorial team, and two anonymous reviewers for their valuable feedback and assistance.

Declaration of conflicting interest

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article. ORCID iD

Bryan Rooney https://orcid.org/0000-0003-4314-4699 Supplementary materials

The supplementary files are available at http://journals.sagepub.com/doi/suppl/10.1177/2053168019892436. The replication files are available at http://thedata.harvard.edu/dvn/dv/researchandpolitics.

Notes 1.

As opposed to an additive index, such a method does not depend on an arbitrary determination of how individual factors relate to the underlying latent strength. 2.

Although theoretically there may be sub-dimensions to emergency power strength, the factors align clearly along one dimension, with an Eigenvalue of 5.63, which accounts for 62% of the variance in the explanatory variables. No other factor accounts for a significantly large portion of the variance. 3.

The factor loadings are contained in the online appendix. The Kaiser-Meyer-Olkin Measure of Sampling Adequacy for this set of variables is 0.8, indicating at least one shared dimension between the variables. 4.

These are identifying restrictions. 5.

I show only constitutional emergency powers in this figure to improve visual clarity.

Carnegie Corporation of New York Grant

This publication was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.