The New Emergency Law
Monday, February 23, 2026 | 10:00 – 11:50 a.m. (PT) | Room 134
Author: Elena Chachko, UC Berkeley
Commentator: Hon. Leonard P. Stark, Fed. Cir.
Abstract
“The New Emergency Law”
By Elena Chachko, UC Berkeley
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.
Colloquium Description
Many scholars write about the courts, about judicial process, and about the practice of judging. But what do judges think of this scholarship? Is it correct? Is it helpful? How could it be better? This colloquium on courts and judicial process brings scholars, judges, students, and faculty together to discuss current research projects about courts, judging, and procedure, among other topics. Over the course of the semester, we will discuss six projects. During a typical workshop, an invited scholar will present their work, and a judge of a federal, state, or foreign court will offer commentary on the research. Students and faculty will join in the open discussion that follows.