#1. Legislative History
No. 1 Art. 185 Cst. adopted the Federal Council's emergency law competence from the old Federal Constitution and further developed it. The Message on a new Federal Constitution of 20 November 1996 emphasized that the emergency law competence «only comes into play in extraordinary situations» when «public order, internal or external security are seriously disrupted or directly threatened» (BBl 1997 I 418). The constitutional legislator thereby sought to explicitly anchor the rule of law limits of emergency law.
No. 2 In contrast to the old Federal Constitution, Art. 185 para. 3 Cst. introduced for the first time an express constitutional basis for independent emergency ordinances. The time limit requirement was included as a rule of law barrier to prevent emergency law from becoming a permanent arrangement. Para. 4 codified parliamentary control over troop deployments as a democratic corrective.
#2. Systematic Classification
No. 3 Art. 185 Cst. is located in Section 3 of Title 5 (Federal Council) and defines its core competences in the security sphere. The provision stands in systematic connection with Art. 173 para. 1 lit. a and b Cst. (Federal Assembly competences in security matters), Art. 184 Cst. (foreign policy competences) and Art. 186 Cst. (relations between Confederation and cantons).
No. 4 The emergency law competence according to para. 3 complements the ordinary legislative competences of the Federal Assembly (Art. 163 ff. Cst.) and urgent federal legislation (Art. 165 Cst.). It differs from the cantonal general police clause in that it represents a written constitutional competence (→ Art. 36 Cst., → Art. 57 Cst.).
#3. Elements of the Offence / Normative Content
No. 5 External security (para. 1) encompasses the protection of Switzerland from military and non-military threats from abroad, including terrorism, cyber attacks and hybrid threats. Independence refers to state sovereignty, neutrality to Switzerland's position under international law (→ Art. 173 para. 1 lit. a Cst.).
No. 6 Internal security (para. 2) covers the protection of the constitutional order, public safety and order as well as the protection of the population from serious dangers. The concept is to be understood broadly and according to BGE 137 II 431 also encompasses economic stability and the protection of the financial market as a foundation for classic police goods.
No. 7 The emergency law competence according to para. 3 presupposes four cumulative requirements:
- Protected interest: public order or internal/external security
- Serious disruption: occurred or directly threatening (temporal and substantive urgency)
- Subsidiarity: no suitable legal measures available
- Proportionality: measures must be necessary to cope with the disruption
No. 8 The time limit requirement is mandatory. The time limit must correspond to the expected duration of the threat situation. A subsequent extension is possible, but requires a new situation assessment (BGE 147 I 333).
No. 9 The troop deployment competence (para. 4) enables rapid action in security policy crises. The quantitative (4000 members) and temporal (3 weeks) thresholds trigger the Federal Assembly's convocation obligation, but not an approval requirement for the deployment itself.
#4. Legal Consequences
No. 10 Based on para. 1 and 2, the Federal Council can act within the framework of the ordinary legal order, including the enactment of implementing ordinances (Art. 182 para. 2 Cst.). These measures are subject to the general rule of law principles.
No. 11 Emergency ordinances according to para. 3 can derogate existing statute law, but not constitutional law. According to BGE 147 I 333 they enjoy «constitutional immunity» in the initial phase of a crisis, which is however temporally limited. Later adjustments are subject to full constitutional judicial control.
No. 12 Emergency law orders are in principle challengeable, unless the guarantee of access to the courts (Art. 29a Cst.) has been exceptionally suspended. The courts examine the constitutionality of emergency ordinances as a preliminary question (BGE 147 V 423).
#5. Disputes
No. 13 Scope of emergency law competence: While Häfelin/Haller/Keller/Thurnherr (Bundesstaatsrecht, 10th ed. 2020, No. 1624 ff.) advocate a restrictive interpretation, other commentators plead for flexible handling of novel threats. The St. Gallen Commentary (Schweizer, SGK BV, 4th ed. 2023, Art. 185 No. 8) takes a mediating position.
No. 14 Constitutional immunity: The doctrine is divided regarding the scope of the constitutional immunity developed in BGE 147 I 333. Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 48 No. 12) criticizes the concept as too far-reaching, while Biaggini (BV Kommentar, 2nd ed. 2017, Art. 185 No. 7) defends it as necessary flexibility in crisis times.
No. 15 Economic emergencies: It is disputed whether Art. 185 para. 3 Cst. also covers purely economic crises. According to the majority view (Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, No. 3485; different opinion Müller, Kommentar zu Art. 185, in: Ehrenzeller et al., St. Galler Kommentar, Art. 185 No. 15), economic emergencies are only covered if they threaten public order.
#6. Practice Notes
No. 16 When invoking Art. 185 para. 3 Cst., the Federal Council must concretely present and document the threat situation. Mere reference to an abstract danger is insufficient. Subsidiarity must be proven through careful examination of existing legal foundations.
No. 17 Emergency ordinances are to be limited to what is absolutely necessary. Structural legal changes or the creation of new administrative competences are in principle reserved to the ordinary legislator. The time limit should be chosen short and renewed if necessary, rather than providing long deadlines from the outset.
No. 18 Parliamentary control mechanisms also apply to emergency law. The competent committees are to be informed early (Art. 7a GOGA). In the case of long-lasting crises, a transition to urgent federal law according to Art. 165 Cst. is recommended.