72 Am. U. L. Rev. 143 (2022).
This Article seeks to describe and defend the judicial review of federal agencies’ responses to national emergencies–what I refer to as “emergency administration.” That may prove difficult. Agencies are experts in their respective fields. During emergencies, scholars and policymakers assume that judges will defer to that expertise under the Administrative Procedure Act (APA). On January 13, 2022, the Supreme Court defied that assumption when it blocked the Biden Administration’s workplace vaccine and masking rules. Critics now assume that judges are reviewing emergency administration to constrain regulation. Both assumptions conclude that judicial review is neither sincere nor helpful during crises. As a result, bipartisan members of Congress are introducing new legislation to take control over emergency oversight.
Efforts to rebalance emergency powers are mistaken. Using a unique dataset of the APA cases that arose during the first two years of the COVID-19 pandemic, I show how federal judges invalidated emergency administration that unjustifiably violated the APA in over half of the cases. Agencies carried out much of their emergency administration under presidential control and not, necessarily, their expertise. The trajectory of judicial review during emergencies suggests that judges are becoming increasingly aware of presidential control and its harmful effects on vulnerable populations. Judges’ willingness to uphold the APA’s standards and protections during emergencies has significant implications for current legislative efforts and the balance of emergency powers.
* Assistant Professor, Cornell ILR School & Associate Member of the Law Faculty, Cornell Law School. The Author would like to thank Jack Beerman, Khiara Bridges, Jack Getman, Kati Griffith, Robert Howse, Jeff Rachlinski, Rachel Sachs, Mark Seidenfeld, Jodi Short, Jed Stiglitz, and Christopher Walker for their helpful comments and discussions on early drafts, as well as participants at the 2021 AALS New Voices in Administrative Law and Legislation, the Cornell University Law School faculty workshop, and the Power in the Administrative State workshop. The Author would also like to thank James Pezzullo for his exceptional research assistance and Suzanne Amy Cohen for her tireless efforts to help me navigate Cornell’s library materials. Finally, the Author is grateful to the American University Law Review editorial team for their fantastic help on this piece. Any remaining errors are the Author’s. Nothing in this Article is reflective of the views of any institution within which the Author has worked.