Elena Chachko (UC Berkeley School of Law) has posted The New Emergency Law (95 George Washington Law Review, forthcoming 2027) on SSRN. Here is the abstract:
The last three presidential administrations invoked delegated emergency authority in novel and expansive ways with substantial domestic effect. Key executive actions like the imposition of global tariffs, removal under the Alien Enemies Act, deployment of the military to major American cities, the construction of a border wall, tech platform regulation, and COVID-19 response relied on statutory emergency authority. Courts have traditionally deferred to presidential actions based on statutory emergency delegations, and conventional wisdom maintains that the Supreme Court has largely sided with the President on questions of executive power. Yet this Article argues that the extensive litigation provoked by Presidents Biden and President Trump’s emergency actions marks a significant shift in judicial review of statutory emergency powers. Emergency powers creep and domestication have led the courts to scrutinize executive reliance on emergency statutes closely and impose substantial limits on executive authority in real time. This Article also proposes and defends an “authority-matching” canon. The canon requires the executive to rely on specific statutory authority when available instead of broad, nonspecific emergency statutes. The Article argues that an “authority-matching” canon aligns with a longstanding contextual approach to statutory interpretation that accounts for statutory structure. It is a better way to constrain reliance on broad delegated emergency powers than alternatives like the major questions doctrine. And it puts a thumb on the scale against the executive end-running statutory constraints by relying on broad emergency authority, while preserving the President’s ability to act in true emergencies Congress did not legislate for. As presidents leverage and even manufacture emergencies to trigger a sprawling web of expansive delegated powers, the judiciary can harness ordinary statutory construction tools to channel executive action through more constrained non-emergency routes.
Highly recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum