Judicial Review of Emergency Administration

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.