The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance.[1] The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.”[2]
Few legal scholars have embraced Schmitt’s
theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule,
the John H. Watson, Jr. Professor of Law at
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