The very nature of judicial review—backward-looking, tending toward caution and based on incomplete facts—shows it to be a cumbersome way to curb or even evaluate the assertion of emergency power—intended to be preventative and aimed at a broad-based threat.
We could hold government to the facts known to policymakers and force them to be “internally consistent,” as challengers to the admin’s vaccine mandate demand, but that would also strip an agency of power and flexibility for threats that change quickly. Formalism over function.
By taking a step back from immediate disputes we can see that the Constitution itself is forcing policy makers and lawyers into making absurd choices because it has not been updated to obviously empower government to deal with public health, emergencies, or have agencies.
Those modern powers are built on cases and doctrines that are often incompletely justified and remain deeply contested. They are also then left to the whims of federal judges. The only way to clear away the mess that impairs good government is a constitutional re-write.
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