The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Justice Gorsuch on Abuse of Emergency Powers

In a recent talk, he decried a situation where "everything is an emergency."

Ilya Somin | 10.2.2026 3:17 PM

Supreme Court Justice Neil Gorsuch. (Eric Lee/UPI/Newscom)

In a recent "fireside chat" before the Tenth Circuit conference, Supreme Court Justice Neil Gorsuch decried the trend towards abusive use of emergency powers (see also this slightly more detailed account):

"Everything is an emergency," he said…. "We've moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we've moved it over to the executive branch. And I just don't think that's a recipe for a healthy democracy over the long term."

Gorsuch is absolutely right about this. We should not allow emergency powers intended to be used only in extreme situations to become a blank check that the executive can wield at will. Sadly, we have increasingly moved in that dangerous direction. Presidents of both parties have abused emergency powers, though Trump - in his second term - has been a particularly egregious offender.

While much of the blame for this state of affairs rests with Congress and the executive branch, Gorsuch and other judges can help by rigorously enforcing constitutional and statutory constraints on emergency powers. As I outlined in more detail in a Dispatch article published last year, courts should engage in strong judicial review of both........

© Reason.com