I. Introduction: The Paradox of Emergency and Governance
Emergency powers represent a unique and often contentious aspect of modern governance. They are defined as the authority granted to executive officials to operate beyond normal legal constraints in response to urgent threats that cannot be effectively addressed through ordinary legislative or administrative procedures.1 This authority, which can be derived from constitutional provisions, statutory delegations, or even claims of inherent sovereign right, becomes a critical tool for states facing existential threats such as natural disasters or pandemics.3 At its core, the use of these powers embodies a profound paradox: the very act of suspending democratic norms and legal procedures is often deemed necessary to protect the state and its citizens from an acute danger.5
This tension is especially pronounced in federal systems, where power is constitutionally dispersed between a central government and sub-national entities. Federalism, with its inherent checks and balances and division of responsibilities, can appear ill-suited for the rapid, decisive action often required in a crisis.3 This report undertakes a comprehensive comparative analysis of how different federal systems—specifically the United States, Canada, Australia, and Germany—have navigated this paradox, drawing on recent legal decisions and scholarly commentary. By examining the constitutional frameworks, inter-governmental relations, and judicial oversight in each country, this report aims to dissect the use and potential for abuse of extraordinary executive powers and their long-term implications for the federal balance.
II. The Theoretical and Legal Foundations of Emergency Authority
A. The Executive’s Structural Advantage and the Constitutional Predicament
The executive branch is inherently built for emergencies. Unlike a legislature that operates on a calendar and requires deliberation, the executive is always in session, possesses a vast institutional knowledge base, and can act with the speed and decisiveness necessary to address a fast-moving crisis.3 This structural advantage makes it the de facto first responder of government. However, this capacity for swift action presents a fundamental challenge to constitutional design, particularly in a system like that of the United States.
The framers of the U.S. Constitution, informed by their experience with an overweening British monarchy and mistrustful of unchecked power, deliberately omitted an explicit emergency regime.7 The Constitution itself does not expressly grant the President emergency powers, even in times of war. This constitutional silence was intentional, stemming from a belief that providing an express path to exceptional powers would encourage their use and “tend to kindle emergencies”.8 Consequently, U.S. presidents, though they have on occasion claimed inherent constitutional powers—sometimes leading to what scholars view as historic abuses, such as the internment of Japanese Americans—have predominantly relied on statutory delegation from Congress to gain extraordinary authority.3
B. The National Emergencies Act and the Erosion of Oversight
In the United States, this reliance on statutory delegation is most visible in the National Emergencies Act (NEA) of 1976. This law was enacted to reassert checks and balances after decades of unchecked emergency declarations, some of which had been in effect since the 1930s.1 The NEA’s design was procedural: it requires the President to formally declare an emergency, justify the invocation, and report to Congress on its actions and costs. Critically, it mandated the automatic termination of an emergency unless the President formally renewed it each year.1
Paradoxically, the very mechanism designed to curb executive overreach has instead facilitated the normalization of a “de facto constant state of emergency”.1 The requirement for annual renewal, intended to ensure legislative re-evaluation of temporary powers, has instead become a routine administrative formality. Presidents, regardless of party, regularly renew decades-old emergency declarations—a practice that blurs the distinction between a genuine, acute crisis and a long-standing foreign policy objective.2 As of 2025, over 40 national emergencies remain in effect, with many tied to economic sanctions that have persisted for decades.1 This institutionalized renewal process weakens the conceptual meaning of an “emergency” and provides a deep reservoir of power that an executive can access for purposes unrelated to an acute threat. Recent examples, such as the invocation of emergency authority to fund a border wall or unilaterally forgive student loans, demonstrate how these normalized powers can be used to circumvent the standard legislative process for political aims.2 The procedural cure has, over time, become a mechanism for the quiet and persistent expansion of executive power.
III. Comparative Case Studies in Federal Response to Crisis
A. The United States: A System of State-Led Public Health with Federal Backstop
The constitutional division of power in the U.S. is distinct. Under the Tenth Amendment, states retain “police powers” to manage public health and safety within their borders, a principle affirmed by nearly 200 years of Supreme Court precedent.10 This legal foundation explains why governors, not the President, held the authority to issue stay-at-home orders, impose quarantines, and close businesses during the COVID-19 pandemic.11 Historical rulings, such as
Gibbons v. Ogden (1824) and Compagnie Francaise (1902), clearly delineate this state-led authority, with Chief Justice John Marshall writing that quarantine laws are a portion of the “immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government”.10
The federal government’s role during the pandemic was, therefore, limited but essential. It acted as a coordinator, providing a financial and logistical backstop and using specific statutory powers, such as the Public Health Service Act and the Defense Production Act, to manage international travel and procure essential medical supplies.1 This division of labor, however, led to significant challenges and judicial scrutiny. The U.S. Supreme Court, in several landmark rulings, served as a critical check on federal executive overreach. The Court blocked both the OSHA vaccine-or-test mandate and the CDC’s eviction moratorium, reasoning that these actions were “significant encroachment[s]” of federal power into the public health domain reserved for states.12 The court’s decisions were not a rejection of federal power in a crisis, but a strict enforcement of the principle that an executive agency’s actions must be clearly and explicitly authorized by Congress.12 By demanding statutory precision, the judiciary ensured the executive could not use a crisis to unilaterally expand its powers into domains that the Constitution reserves for state authority.
B. Canada: A Collaborative Framework with a High-Threshold Federal Act
Canada’s constitutional and legislative framework for emergencies is distinct, marked by its modern Emergencies Act of 1985. This law was designed to replace the draconian War Measures Act and includes robust parliamentary oversight, requiring a high threshold for invocation.13 For the federal government to declare a national emergency, the situation must “exceed the capacity or authority of a province to deal with it”.14 Furthermore, the executive must consult the provinces before invoking the Act, and Parliament can vote to revoke the proclamation within seven days, providing a critical democratic check.13
During the COVID-19 pandemic, this framework proved effective. The federal and provincial governments operated largely in a collaborative manner, with the federal government focusing on financial support and procurement while provinces used their own public health legislation to implement restrictions.13 The federal
Emergencies Act was never invoked to address the pandemic. However, its use to quell the “Freedom Convoy” protests in 2022 led to a landmark legal challenge. The Federal Court’s ruling in Canadian Frontline Nurses was a powerful affirmation of the rule of law and the principle of provincial primacy.15 The court found that the government’s decision to invoke the Act was “unreasonable” and
ultra vires (beyond its powers) because the statutory threshold had not been met.15 The court determined that provinces still had the capacity to manage the situation with their own laws, even if they were unwilling to do so.15 The ruling also found that specific measures, such as freezing protestors’ assets and criminalizing peaceful assembly, violated Canada’s Charter of Rights and Freedoms.15 This decision demonstrates a critical form of judicial oversight: the court’s review extended not just to the substance of the measures, but to the initial declaration of the emergency itself. This high-bar judicial scrutiny prevents the executive from unilaterally lowering the threshold for what constitutes a national emergency.
C. Australia: State Primacy and Deferential Judicial Review
In Australia, a federal system composed of six states and two territories, primary responsibility for public health rests with the sub-national governments.18 During the pandemic, the states exercised these powers to impose lockdowns, close businesses, and enforce border closures.18 The Commonwealth government’s role was limited, using powers under the
Biosecurity Act 2015 to manage international borders and provide resources.18 The executive created an ad-hoc “National Cabinet” of federal, state, and territory leaders to coordinate the response, which largely operated through “executive fiat” and with minimal parliamentary oversight.5
The Australian High Court’s response to legal challenges was characterized by a high degree of deference to state authority. In Palmer v. Western Australia, the court upheld Western Australia’s hard border closure against a constitutional challenge based on Section 92, which mandates that “trade, commerce, and intercourse among the States… shall be absolutely free”.19 The court ruled that the state’s quarantine measures were a valid exercise of power in a public health emergency, affirming the state’s authority even when it impinged on a foundational constitutional freedom.19 Similarly, in
Gerner v. Victoria, the High Court unanimously rejected a claim that Victoria’s lockdowns infringed on an “implied freedom of movement”.20 The court found no constitutional basis for such a right and held that accepting the plaintiff’s claim would place an “unjustified limitation on legislative and executive power”.20 The Australian judiciary’s posture underscores a decentralized model of crisis management where the courts show remarkable deference to sub-national governments’ use of their police powers, even when those powers are used to impose unprecedented restrictions on individual liberties.
D. Germany’s Cooperative Federalism: A Case for Rights-Based Oversight
Germany’s federal system, known for its “administrative federalism,” places primary jurisdiction for public safety and disease prevention with the 16 states (Länder).21 The federal government and states largely coordinated their response through common guidelines based on the federal
Infection Protection Act.21 This cooperative approach was tested when the federal government later introduced the “Federal Emergency Brake,” a statute that allowed it to impose direct restrictions, bypassing state implementation powers.23
In response to legal challenges, the German Constitutional Court acted as a guardian of fundamental rights. The court’s approach was distinct from the others; it did not invalidate the legal framework itself but instead focused on the application of the measures. The court granted interim measures in cases where local authorities had imposed blanket bans on protests and religious gatherings, forcing them to conduct a contextual, rights-based review.24 For example, the court ruled that a city violated the freedom of assembly by imposing a general ban on protests, rather than considering whether the protest could be held with appropriate social distancing measures.24 This insistence on proportionality and a balancing of rights with public health goals demonstrates that judicial review can be effective without wholesale invalidation. The court acted as a “guard rail,” ensuring that while the state’s response was decisive, it did not lead to a blanket suspension of civil liberties.
Table 1: Comparative Frameworks for Emergency Powers in Federal Systems
| United States | Canada | Australia | Germany | |
| Primary Legal Basis | Statutory (National Emergencies Act, Public Health Service Act) | Statutory (Emergencies Act) | State/Territory Legislation | Statutory (Infection Protection Act) |
| Constitutional Basis | Tenth Amendment (State police powers), Commerce Clause | Peace, Order, and Good Government (POGG), Charter of Rights and Freedoms | Section 92 (Trade/Intercourse), Section 51 (Quarantine) | Basic Law (Articles 35, 91) |
| Threshold for Federal Invocation | Presidential declaration; procedural requirements via NEA | High threshold; must “exceed capacity or authority of a province” | Limited federal power; ad-hoc National Cabinet for coordination | States have primary jurisdiction; Federal government can intervene under specific, high-threshold conditions |
| Key Judicial Rulings | NFIB v. OSHA, Biden v. Missouri (blocking federal mandates) | Canadian Frontline Nurses (finding invocation “unreasonable” and ultra vires) | Palmer v. Western Australia, Gerner v. Victoria (upholding state measures) | Constitutional Court rulings (requiring proportionality and contextual application) |
| Federal-State Dynamic | State-led public health with federal backstop; frequent political tension | Cooperative, with federal powers as a last resort | State primacy in public health and law/order | Administrative federalism; states implement federal law |
| Primary Check on Executive | Judicial review of statutory authority and congressional reporting | Judicial and parliamentary review of both invocation and specific measures | Judicial review of constitutional infringement | Judicial review of rights-based application of measures |
| Recent Concerns | Normalization of emergencies, use of powers for non-crisis aims | Unreasonable invocation of high-threshold Act | Broad state-level lockdowns and border closures | Centralizing measures like the “Federal Emergency Brake” |
IV. Cross-Cutting Themes and Insights
A. The Judiciary as the Ultimate Arbiter
The comparative analysis reveals that in each federal system, the judiciary emerged as the ultimate and most consequential arbiter of executive power during a crisis. While legislatures, with their slow and deliberative processes, are institutionally ill-equipped to provide swift oversight in an emergency, the courts have consistently served as a bulwark against executive overreach.3 However, the approach and effectiveness of this judicial review varied significantly. The Canadian court set a high bar for the very decision to declare an emergency, the U.S. Supreme Court enforced strict adherence to statutory delegation, the Australian High Court deferred to state authority, and the German Constitutional Court insisted on a rights-based, proportional application of the law. This confirms that the judiciary’s role is not a monolithic one, but rather is shaped by the unique constitutional design and legal culture of each country.
B. The Legislative Challenge: A Crisis of Oversight
A pervasive theme across all case studies is the structural weakness of the legislative branch in a crisis. The inherent slowness of parliamentary deliberation, combined with the need for rapid action, often leads to the delegation of broad, “ex ante” powers to the executive.3 This institutional dynamic was starkly illustrated by the sidelining of Parliament in Australia through the creation of the ad-hoc National Cabinet, which operated without formal legislative oversight.5 This pattern highlights a critical vulnerability in modern democratic systems: in moments of crisis, the legislative branch’s role can be diminished, allowing for the concentration of power in a single executive body. This erosion of legislative relevance poses a long-term risk to the foundational principle of separation of powers.
C. The Normalization of Emergency: A Global Concern
The most significant and concerning long-term implication is the global trend toward the normalization of emergency governance. What begins as a temporary, necessary measure risks becoming a permanent feature of the political landscape. The U.S. experience with its decades-long, routinely renewed emergency declarations provides a cautionary tale. The legal framework, intended to ensure accountability, has instead fostered a deep pool of executive authority that can be used for purposes far beyond a genuine crisis.1 This trend creates a dangerous causal loop: public fear in a crisis leads citizens to accept extraordinary measures, granting executives broad powers. Once these powers are institutionalized, they can be used for non-emergency objectives, further blurring the line between the exceptional and the everyday and making it easier to invoke them in the future.25 This risks a permanent erosion of the rule of law and civil liberties, where the temporary becomes an entrenched feature of governance.
V. Towards a More Resilient Federal Balance
The COVID-19 pandemic and other recent crises have exposed the inherent vulnerabilities of federal systems when confronted with an urgent, widespread threat. While the need for swift executive action is undeniable, so is the imperative to preserve the constitutional balance of power. The temporary expansion of executive authority, if left unchecked, can permanently alter the constitutional landscape, entrenching executive dominance and weakening parliamentary oversight.
To build a more resilient federal balance, constitutional and statutory reforms are necessary. Inspired by the Canadian model, legal frameworks should be strengthened to include a higher, non-discretionary threshold for declaring a state of emergency, ensuring that such a declaration is justified only when a sub-national government truly lacks the capacity to respond.25 Legislative oversight must also be enhanced, moving beyond simple, pro forma renewal votes to substantive, mandatory re-evaluations of ongoing emergencies.1 Finally, judicial review must be robust enough to challenge not only the substance of a regulation but also the initial decision to declare an emergency, as demonstrated by the Canadian Federal Court’s landmark ruling.15
VI. Conclusion
The modern era of recurring crises has demonstrated that emergency powers, while a necessary tool, contain an inherent paradox that challenges the foundational principles of federalism. The comparative analysis reveals that while no single system is perfect, a resilient federal balance in a crisis is not merely a matter of a well-defined legal framework, but also a function of a political and judicial culture willing to enforce checks on power. The Canadian experience shows that a high-threshold statute combined with vigilant judicial review can prevent executive overreach. The U.S. and Australian experiences highlight the importance of the constitutional division of labor, with the U.S. judiciary acting as a guardian of statutory limits and the Australian courts deferring to a well-established state-level primacy. The German case illustrates the power of rights-based proportionality in judicial review. Ultimately, the most profound threat to the rule of law is the normalization of the exceptional. If left unchecked, the temporary powers assumed in a crisis can lead to a permanent and corrosive concentration of power, a slow but steady erosion of the very democratic principles they were intended to protect.
