Paul A. Diller (Willamette University – School of Law) has posted Gubernatorial Decreemaking versus Emergency Administrative Rulemaking: Lessons from the Covid Pandemic (Tennessee Law Review, Volume 93 (forthcoming 2026)) on SSRN. Here is the abstract:
Governors’ broad exercise of emergency power for an extended period of time during the COVID-19 pandemic was unprecedented in United States history. Looking back with the hindsight of five years, however, the means by which governors exercised their power was perhaps not as novel as it initially seemed. Governors’ robust use of powers delegated by state emergency law was actually not so different — conceptually, at least — from the longstanding authorization in most states for agencies to make emergency or temporary rules. Both processes exempt the rulemaker from notice-and-comment requirements, a crucial component of the rulemaking process. A key difference, however, is that gubernatorial decrees in many states come with no temporal limitation, whereas strict time limits attach to emergency administrative rules in almost all states. Moreover, emergency administrative rules are subject to “arbitrary and capricious” judicial review in many states, whereas gubernatorial decrees are not, at least as a technical matter.
This paper compares gubernatorial decrees to emergency administrative rules and explores how their similarities and differences should inform judicial review of each. Working from the assumption that the judiciary should observe a hierarchy of deference among governmental actions, the article argues that gubernatorial decrees’ lack of public input makes them least deserving of such deference. Although emergency administrative rules also lack public input in their formation, they are subject to arbitrary-and-capricious review in many states and tighter timelines for expiration than gubernatorial decrees in most states. At the least, even if a hierarchy of judicial deference is unappealing to those concerned with an increasingly aggressive “juristocracy,” an exploration of the differences between decrees and emergency administrative rules highlights areas of potential law reform to correct flaws in each and better synthesize these two conceptually overlapping tools of rulemaking.