David Landau (Florida State University – College of Law) has posted Judging Emergencies (105 Texas Law Review __ (forthcoming 2026)) on SSRN. Here is the abstract:
Presidents have increasingly leaned on emergency statutes to enact their policy goals. President Trump across his two terms has wielded emergency provisions to enact tariffs on nearly every country, deploy the National Guard to U.S. cities, construct a wall on the Southern border, summarily deport alleged members of Venezuelan drug gangs, and restrict the entry of foreign nationals. Scholars argue that recent invocations of emergency power are pretextual or abusive. They worry that courts will be insufficiently assertive in policing their use, but the judiciary has in fact already struck down many recent attempts to wield emergency power. The issue is not whether courts will review uses of emergency power, but how they ought to do so. This article shows that courts have focused primarily on whether the statute being wielded delegates the precise power or instrument used by the president. This powers-based approach threatens to hamstring presidents when they have legitimate need for emergency power, while also leaving the door wide open to abuse. It should be supplanted by two more productive and fundamental questions well-known in comparative and international law: (1) Is there actually an emergency? and (2) Is the proposed response proportional to that emergency? A reorientation along these lines is already visible in lower-court decisions, plausibly rooted in existing statutory language, and could be enhanced by common-sense statutory changes. Eliminating the major questions doctrine in emergency powers cases would also restrain the excesses of the powers-based approach and clear space for more effective judicial review.
Highly recommended.