Unscarcity Notes

Emergency Protocol Design: The 90-Day Limit with 30-Day Cooling Period

Emergency Protocol Design: The 90-Day Limit with 30-Day Cooling Period How mathematical constraints can prevent emergencies from becoming permanent tyranny --- Why Emergencies Kill Democracy History...

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Emergency Protocol Design: The 90-Day Limit with 30-Day Cooling Period

How mathematical constraints can prevent emergencies from becoming permanent tyranny

Why Emergencies Kill Democracy

History offers a sobering lesson: democracies rarely die from external conquest. They die from within, often under the guise of emergency measures designed to protect them. The emergency that never ends has become the most reliable pathway from freedom to autocracy.

The Pattern of Democratic Erosion

Consider the mathematics of emergency creep. In 2020, as many states of emergency were declared around the world during the first wave of the COVID-19 pandemic as there were in the entire previous decade. By March 2020, 93 countries had invoked emergency powers—equivalent to all states of emergency declared globally since the 1980s combined. According to research from the University of Gothenburg and Stockholm University covering 180 countries, states of emergency were most common among countries with weak democratic systems, rather than in either strong democracies or outright autocracies.

This vulnerability is not accidental. Emergency powers target the institutions that normally constrain executive action: legislative oversight, judicial review, constitutional protections, and public deliberation. When these constraints lift “temporarily,” the political incentives to restore them evaporate. The executive gains power; returning that power requires voluntary sacrifice of advantage. Human nature rarely cooperates.

The Normalization Thesis

The Pandemic Backsliding Index (PanDem) created by the Varieties of Democracy Project found that approximately 80% of all countries violated democratic standards during COVID-19, predominantly through authoritarian practices—and the single most common violation was the lack of time limits on emergency measures.

This data confirms what political theorists call the “normalization thesis”: emergency powers, once granted, tend to become permanent features of governance rather than temporary departures from it.

The Permanent Emergency: France 2015-2017

France’s response to the November 2015 Paris attacks provides a textbook case study. President François Hollande declared an immediate state of emergency as the Bataclan crisis was still unfolding. Under French law, this exceptional measure was supposed to last for 12 days.

Instead, it was extended five times, lasting 719 days—almost two years.

The emergency granted authorities exceptional powers: the ability to search any premises without judicial oversight, house arrests ordered by the Minister of the Interior rather than courts, restrictions on movement and assembly determined by prefects rather than law. More than 4,300 raids were conducted. Yet less than 1% of home searches between November 2015 and February 2016 resulted in charges of terrorist activity. According to the UN special rapporteur on human rights and counterterrorism, “the French Muslim community is the one that has been mainly targeted by exceptional measures.”

When the state of emergency finally ended in November 2017, it was replaced not by restoration of normal legal protections, but by the Sécurité Intérieure et Lutte contre le Terrorisme (SILT) Act—which made many emergency powers permanent parts of ordinary law. Critics warned the legislation would “contaminate the rule of law and the justice system as a whole.”

Ten years after the Paris attacks, observers describe France as living in a “permanent state of emergency.” The temporary became eternal. The exception became the rule.

The Vollmachten Problem

Switzerland’s own history illuminates the danger with unusual clarity. During the First World War, on August 3, 1914, the Federal Assembly transferred unlimited authority to the Federal Council through a Vollmachtenbeschluss (full powers decree), enabling the executive to take “all measures necessary” for national security.

This emergency regime persisted long after the immediate crisis. During the Second World War, Switzerland again implemented full powers governance—the Vollmachtenregime—which lasted from 1939 until 1952, requiring a popular vote to finally force the executive to relinquish emergency powers seven years after the war ended.

The lesson is unmistakable: even in Switzerland, with its deep traditions of federalism, direct democracy, and constitutional restraint, emergency powers prove extraordinarily difficult to claw back once granted.

The Swiss Model

Despite—or perhaps because of—its historical experience with emergency overreach, Switzerland has developed one of the most sophisticated frameworks for constraining crisis governance. Understanding this model reveals both the possibilities and the limitations of constitutional safeguards.

The Constitutional Framework

The Swiss Constitution does not actually contain explicit provisions regulating states of emergency. Instead, emergency powers derive from two key articles:

Article 185(3): The Federal Council may issue ordinances and administrative acts to counter existing or imminent threats of serious disruption to public order, internal security, or external security.

Article 184(3): The “sister provision” covering measures relating to foreign policy, including border controls.

This design reflects a crucial insight: the absence of explicit emergency provisions may be safer than their presence. Rather than creating a pre-authorized pathway to expanded executive power, Switzerland requires emergency actions to operate within the existing constitutional framework, with the Federal Council bound by the principle of proportionality even during crises.

The Epidemics Act Tiered Response

Switzerland’s approach to public health emergencies demonstrates sophisticated calibration. The Epidemics Act of 2012 distinguishes three distinct situations:

  1. Normal Situation: Standard public health operations under existing law
  2. Special Situation: Enhanced coordination with specific authorities activated
  3. Exceptional Situation: Article 7 permits the Federal Council to “order the necessary measures for the whole country or for individual parts of the country”

Each level requires different justifications and unlocks different powers. The framework creates friction—you must formally escalate through defined thresholds rather than jumping immediately to maximum authority.

Mandatory Parliamentary Review

If the Federal Council adopts measures to deal with extraordinary circumstances, it must submit the resulting ordinances to parliament within six months. This is not merely a notification requirement; parliament can modify or revoke executive measures, restoring legislative supremacy over emergency policy.

The Subsidiarity Principle

Even in crisis, Switzerland maintains structural constraints through subsidiarity. The Federal Council can call up military personnel of maximum 4,000 militia for three weeks to safeguard security. A larger number or longer duration requires parliamentary authorization. For deployments within Switzerland, cantonal police forces must be exhausted first—the military is genuinely a last resort, not a first response.

The Referendum Check

Ordinances and decrees issued during extraordinary circumstances are not subject to mandatory or facultative referendum. This acknowledges the need for rapid response. But this exemption is narrow and temporary—the underlying emergency framework itself remains subject to direct democratic accountability through Switzerland’s referendum system.

Mathematical Constraints

The failures of emergency governance are not primarily failures of good intentions. They are failures of system design—specifically, the absence of mathematical constraints that make extension harder than termination.

The Asymmetry Problem

Under most emergency frameworks, extending emergency powers requires less political effort than ending them:

  • Extension: Executive signs renewal, citing ongoing threat
  • Termination: Requires affirmative legislative action, often against executive opposition

This asymmetry produces predictable results. The United States provides a vivid example: the National Emergencies Act of 1976 was designed to restore checks and balances after decades of open-ended emergency declarations. When passed, four national emergencies dating back as far as 1933 remained in effect.

Congress included three safeguards:

  1. Emergency declarations would automatically expire after one year unless the President renewed them
  2. Congress could terminate declarations through a “legislative veto”
  3. Congress would meet every six months during emergencies to consider termination

All three safeguards proved impotent. Renewing declarations requires nothing more than the President’s signature. The Supreme Court struck down legislative vetoes as unconstitutional in 1983. And the six-month review meetings became perfunctory exercises. As of 2024, dozens of national emergencies remain active, some decades old.

The Constitutional Arithmetic

More effective frameworks flip the mathematical defaults:

Germany: General sunset provision of six months for emergency legislation. After six months, powers automatically expire unless affirmatively renewed through full legislative process.

India: Emergency declarations “shall cease to operate at the expiration of one month” unless approved by resolutions of both Houses of Parliament. Following the 1975-1977 Emergency under Indira Gandhi, the 44th Constitutional Amendment specifically replaced “internal disturbance” with “armed rebellion” as grounds for emergency—raising the threshold for invocation.

Spain: Three escalating levels (state of alarm, state of emergency, state of siege), each requiring different parliamentary approval thresholds and granting different degrees of power. The architecture creates graduated responses rather than binary on/off switches.

Scotland’s COVID Response: The Coronavirus (Scotland) Act included a sunset clause with automatic expiry after six months. Extensions required parliamentary vote, with a maximum possible duration of 18 months regardless of circumstances. The law embodied the principle that even genuine emergencies have endpoints.

The 90-Day Principle

Analysis of successful emergency frameworks suggests an optimal initial duration: approximately 90 days (roughly three months).

This duration is long enough to:

  • Mount a meaningful response to genuine crisis
  • Gather information about the actual nature and scope of the threat
  • Develop non-emergency legal frameworks if needed

But short enough to:

  • Require early deliberation about continuation
  • Prevent normalization of emergency measures
  • Maintain public and legislative attention on the exception

The key is that 90 days forces an early decision point. If the emergency is genuine and ongoing, renewal requires making the case during a period when attention remains focused. If the emergency has passed or never truly justified the response, the default returns to normal governance without requiring anyone to actively dismantle accumulated power.

The Cooling Period Innovation

Time limits alone are insufficient. France’s emergency lasted 719 days through five extensions—each extension was a separate legislative act, yet the pattern of renewal became routine. The problem was not absence of time limits but absence of discontinuity.

Why Renewal Becomes Automatic

When emergency powers approach expiration, the executive faces a choice: let them lapse or seek renewal. The political calculus almost always favors renewal:

  • Letting powers lapse looks “soft” on the threat
  • No politician wants to be blamed if something goes wrong after relaxing vigilance
  • The emergency apparatus itself lobbies for continuation
  • Extension is framed as mere continuation of current policy, not new decision

Without structural intervention, renewal becomes the path of least resistance.

The Cooling Period Concept

A cooling period introduces mandatory discontinuity between emergency periods. Rather than allowing indefinite consecutive renewals, the system requires a gap—a period during which emergency powers are not in effect—before they can be reinvoked.

The proposed structure:

  • Maximum emergency duration: 90 days
  • Mandatory cooling period: 30 days
  • After cooling period: Emergency can be redeclared if conditions warrant

This design changes the political calculus fundamentally:

Without cooling period: “Shall we extend the current emergency?” (Answer is almost always yes)

With cooling period: “Shall we return to emergency status after experiencing normal governance?” (Answer requires active justification)

The Deliberation Window

The 30-day cooling period serves multiple functions:

  1. Information Gathering: Society experiences governance without emergency powers, generating evidence about whether they are actually necessary

  2. Institutional Recovery: Legislative oversight, judicial review, and civil society checks recover their normal functioning, enabling genuine assessment rather than rubber-stamping

  3. Public Attention: The explicit ending and potential restarting of emergency becomes a visible public event, subject to democratic deliberation rather than quiet administrative extension

  4. Political Courage: Leaders who believe emergency powers should not return have a natural moment to make that case, rather than opposing “mere extension”

Mathematical Properties

The 90/30 structure creates specific mathematical constraints:

  • Maximum emergency time in any 120-day period: 90 days (75%)
  • Maximum emergency time in any year: Approximately 274 days (75%)
  • Number of deliberation events per year of ongoing crisis: At least 3

Compare this to systems without cooling periods:

  • Maximum emergency time: 365 days (100%)
  • Number of deliberation events: 0 (if renewals are automatic) or 12 (if monthly, but without discontinuity forcing genuine reconsideration)

The cooling period also prevents what might be called “emergency arbitrage”—declaring a new emergency immediately after the previous one expires to circumvent time limits. Any redeclaration must survive the 30-day test of governance without emergency powers.

Historical Analog: The Dictator’s Term

Ancient Rome’s dictatorship offers a partial precedent. The dictator served for a maximum of six months or until the crisis ended, whichever came first. After resignation, the former dictator faced potential legal liability for actions taken during tenure—a structural incentive for restraint.

The system worked for centuries. Cincinnatus famously resigned his dictatorship after only 16 days in 458 BCE. But the Roman framework lacked a cooling period between dictatorships. When Sulla created an indefinite dictatorship in 82 BCE, and later Caesar accepted perpetual dictatorship in 44 BCE, no structural mechanism forced a pause for reflection.

The cooling period concept addresses this gap: not just limiting duration, but requiring discontinuity.

Implementation Blueprint

Translating the 90-day limit with 30-day cooling period from theory to practice requires addressing declaration procedures, constitutional embedding, oversight mechanisms, and edge cases.

Declaration Requirements

Threshold Specification
The system must define what qualifies as an emergency warranting extraordinary powers. The temptation is vague language—“threat to national security” or “public emergency”—which enables expansive interpretation.

More robust frameworks require specific criteria:

  • Armed rebellion (India’s post-1978 standard)
  • Concrete and immediate threat to specified protected objects (Swiss doctrine)
  • Tiered thresholds for different levels of response (Spanish model)

The Unscarcity framework should specify that emergency declaration requires:

  1. Identification of specific, concrete, and immediate threat
  2. Explanation of why existing non-emergency legal frameworks are insufficient
  3. Definition of success criteria (what conditions would indicate the emergency has ended)
  4. Enumeration of specific powers being activated (not blanket authorization)

Supermajority Declaration
If possible, declaration should require supermajority approval—not mere majority. This raises the threshold for invocation while still permitting response to genuine crisis. The Hungarian case (where ruling party’s two-thirds majority enabled indefinite decree powers) suggests this safeguard alone is insufficient, but it adds friction.

Sunset Embedded in Declaration
The 90-day limit should be automatic and constitutional, not dependent on inclusion in each declaration. The declaration activates the countdown; nothing stops it except reaching zero.

During the Emergency Period

Concurrent Powers, Not Replacement
Emergency powers should operate alongside normal governance, not replace it. Legislature continues meeting. Courts remain open. The emergency authorizes additional executive actions; it does not suspend other branches.

Real-Time Reporting
All actions taken under emergency authority should be reported to the legislature within 48 hours. This is not post-hoc review; it is concurrent transparency. The French experience shows that lack of real-time information enables discriminatory and disproportionate action.

Judicial Access
Emergency measures affecting individuals must remain subject to judicial review. Switzerland’s principle that “the Federal Council is bound by the Constitution, especially by the principle of proportionality even in the event of emergency measures” should be explicit and enforceable.

Prohibition on Constitutional Amendment
Following widespread constitutional practice, emergency periods should prohibit amendments to the constitutional framework itself. The goal is preserving the constitutional order, not changing it.

The Cooling Period

Automatic Activation
When the 90-day limit is reached, the cooling period activates automatically. No legislative vote required. No executive proclamation. The emergency simply ends, and the 30-day cooling period begins.

No Emergency Powers During Cooling
The defining feature of the cooling period is the absence of emergency authority. Normal governance applies. If a genuine crisis continues, society experiences it under normal legal frameworks, generating evidence for the redeclaration debate.

Redeclaration Requirements
After the cooling period expires, redeclaration is possible but must satisfy:

  1. New declaration process (same requirements as original)
  2. Review of previous emergency period (what was done, was it effective, was it proportionate)
  3. Explanation of why normal governance proved insufficient during cooling period
  4. Renewed specification of success criteria

Edge Cases and Objections

“What about genuine ongoing emergencies?”
The system allows redeclaration after the cooling period. If threat is genuine, the case for redeclaration will be strong. The cooling period tests whether the emergency is real or has become administrative convenience.

“Enemies will exploit the cooling period”
Adversaries already know democratic societies have constraints. The predictability of 90/30 timing is less dangerous than the unpredictability of autocratic drift. Moreover, many emergency powers become security theater rather than genuine protection—the cooling period tests which measures actually matter.

“90 days is too short for complex emergencies”
The limit is on extraordinary powers, not on government response. Normal legal frameworks can address most situations. If 90 days proves genuinely insufficient, the redeclaration mechanism exists—but with deliberation, not automaticity.

“30-day cooling is too long”
The duration can be calibrated, but it must be long enough to:

  • Allow institutional recovery
  • Enable genuine deliberation
  • Generate evidence of governance without emergency powers

Less than two weeks is likely insufficient; more than two months may be unnecessarily restrictive. The 30-day figure represents a reasonable balance.

Constitutional Embedding

For the 90/30 framework to function as designed, it must be embedded at the constitutional level, not merely statutory. Statutory provisions can be overridden by subsequent legislation—as France demonstrated when emergency powers were made permanent through ordinary law.

Constitutional embedding should include:

  1. Maximum duration specified in constitutional text
  2. Cooling period specified in constitutional text
  3. Prohibition on constitutional amendment during emergency
  4. Explicit preservation of judicial review
  5. Automatic termination without need for affirmative action

The goal is creating what constitutional scholars call “self-enforcing” provisions—rules that operate through structural design rather than depending on political will for implementation.

Conclusion

Emergencies are real. Genuine crises require rapid, coordinated response. No serious framework for governance can ignore this reality.

But the history of democracy teaches that emergency powers pose existential danger to the constitutional order they purport to protect. From Weimar Germany’s Article 48 to Hungary’s COVID decrees, from France’s 719-day “temporary” measures to America’s indefinitely extended national emergencies, the pattern repeats: powers granted temporarily become permanent; exceptions become rules; democracies hollow out from within.

The 90-day limit with 30-day cooling period represents an attempt to break this pattern through mathematical constraints rather than political will. By forcing discontinuity—requiring society to experience normal governance before redeclaring emergency status—the framework creates structural resistance to emergency normalization.

This is not a perfect solution. No constitutional mechanism can fully compensate for a society determined to abandon its principles. As scholars note, “constitutional collapse often does not arise merely from the existence of formal emergency powers; it also requires an executive willing to exploit them without regard for custom and compromise.”

But institutional design matters. The Roman Republic survived centuries with its limited-term dictatorship; it fell when those limits were breached. Switzerland’s direct democracy forced relinquishment of wartime powers that the executive would never have voluntarily surrendered. Structural constraints buy time for democratic accountability to function.

The Unscarcity framework proposes a civilization designed for permanence—for multi-generational thriving rather than short-term optimization. Such a civilization requires governance structures that can survive their own emergencies. The 90-day limit with 30-day cooling period offers one such structure: emergency powers that remain genuinely temporary because the system makes permanence mathematically difficult.

References

This article supports Chapter 3 of the Unscarcity manuscript, which examines the Federated Civic Mesh and emergency governance design.

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