Presidents frequently attempt to use emergencies to push through controversial rules. We argue that the law surrounding “notice and comment” for proposed rules should be altered to reduce the risk that Presidents will exploit emergencies to entrench rules without adequate public input. Specifically, we argue that the comment periods for proposed rules should be extended during emergencies and that courts should admit extrarecord evidence in subsequent administrative litigation when agencies refuse to afford the public reasonable extensions in the comment periods.
Michael Barsa is a Professor of Practice, and David Dana is the Kirkland & Ellis Professor of Law at Northwestern Pritzker School of Law. We would like to thank Zachary Clopton and Nadav Shoked for helpful suggestions.
Copyright 2021 by Michael Barsa & David Dana
Cite as: Michael Barsa & David Dana, Regulating During Emergencies, 116 Nw. U. L. Rev. Online 223 (2021), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1317&context=nulr_online.