The state of exception has come to weaken the rule of law; that is, it has enabled the sovereign to not only increase its political power but to suspend the law itself. This investigation demonstrates how the post–9/11 state of exception (or of emergency, necessity, or martial law) is increasingly used as the basis of contemporary American governance. This form of governance has been intensified since 9/11 by suspending normal rules and procedures and replacing them with extrajudicial measures that unduly jeopardize fundamental freedoms. The first section develops a framework for the state of exception that draws from Giorgio Agamben. It establishes the existence of the state of exception today and describes how the exception is a liminal space devoid of all law. The following section provides evidence as to how the state of exception has entered a self-reinforcing process in the United States since 9/11. It adapts the tendencies of path dependency from Paul Pierson’s increasing returns framework and applies them to the continuation of the state of exception from three presidencies since 9/11 (from Bush to Obama to Trump) to demonstrate how self-reinforcing processes end up prolonging states of emergency that are supposed to be temporary.
Arthur Percy Sherwood , "Tracing the American State of Exception from the George W. Bush, Barack Obama, and Donald Trump Presidencies", (2018) 8:1 online: UWO J Leg Stud 1 <https://ir.lib.uwo.ca/uwojls/vol8/iss1/1>.