Notes: Deregulation Through Nonenforcement

34 Pages Posted: 6 Jul 2014

See all articles by Daniel Deacon

Daniel Deacon

University of Michigan Law School

Date Written: June 1, 2010

Abstract

This Note examines the phenomenon of deregulation through nonenforcement, drawing on examples from the George W. Bush Administration. It argues that the presumption of nonreviewability afforded to agency refusals to prosecute creates incentives for presidential administrations pursuing deregulatory agendas to manipulate agency enforcement practices. Furthermore, it contends that deregulation through nonenforcement is undesirable because it shields executive branch policy decisions from public view, thereby reducing accountability. Perhaps counterintuitively, the Note suggests that one way to counteract the negative effects of the presumption of nonreviewability is to reduce the level of review applied to other categories of agency action, such as notice-and-comment rulemaking, thus increasing the executive’s ability to act through more accountable means.

Keywords: Administrative law, presidential power, enforcement discretion

Suggested Citation

Deacon, Daniel, Notes: Deregulation Through Nonenforcement (June 1, 2010). New York University Law Review, Vol. 85, 795, 2010, Available at SSRN: https://ssrn.com/abstract=2462750

Daniel Deacon (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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