"Emergency Oversight" by Catherine Baylin Duryea

Alternate Title

Emergency Oversight

Catherine Baylin Duryea, St. John's University School of LawFollow

Abstract

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e. price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes arising out of these domestic economic programs. The ECA took a minimalist approach to oversight of agency decisions; it intervened to protect individual rights only so far as it could do so without impairing the overall regulatory scheme. The court embraced the view that its responsibility was to protect constitutional rights and guard against wartime inflation. The Supreme Court fully endorsed the approach of the ECA. This vision of courts and agencies working in harmony during a crisis stands in stark contrast to their contemporary relationship.

This Article makes two significant contributions. The first is a descriptive analysis of the relationship between administrative agencies and courts with respect to price control and rationing during WWII. That relationship, described in detail here for the first time, provides a valuable historical comparison for the contemporary era, where the courts similarly found themselves navigating expansive economic regulation in the context of national emergencies. During COVID, the court took a far more interventionist, restrictive approach towards limiting agency action. That tees up the second contribution of the paper, which is to raise the normative question: Is it desirable for courts to strictly limit administrative responses to national emergencies? The historical comparison cannot provide an answer, but it highlights another, more collaborative model for balancing individual rights with effective and efficient governance.