Administrative Forbearance

67 Pages Posted: 9 Sep 2015 Last revised: 19 Apr 2016

See all articles by Daniel Deacon

Daniel Deacon

University of Michigan Law School

Date Written: September 7, 2015

Abstract

This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Article calls “administrative forbearance authority.”

Although legal scholars have recently noted the rise of administrative forbearance authority, scholars have largely ignored how exactly such a power might operate in the hands of the agency and the various governance functions it performs. Without such knowledge, the case for administrative forbearance authority is necessarily incomplete.

This Article thus makes two principal contributions to the literature. First, it describes the variety of functions that administrative forbearance authority serves at the agency level, drawing on the previously unexplored histories of various agencies’ experience with such authority. Second, it uses the descriptive account both to develop a fuller normative and constitutional case for administrative forbearance authority and to illuminate the various circumstances in which forbearance can be beneficially employed as a policy tool.

To defenders of delegation generally, this Article maintains that there is no special reason to be wary of administrative forbearance authority and that forbearance can be used as a governance device in previously underappreciated ways. To critics who urge a stronger nondelegation doctrine than the one we have today, I argue that there may be reasons to actually support administrative forbearance in a world where delegations of the traditional type are unlikely to go anywhere anytime soon.

Keywords: Administrative law, delegation, constitutional law, Federal Communications Commission

Suggested Citation

Deacon, Daniel, Administrative Forbearance (September 7, 2015). Yale Law Journal, Vol. 125, 2016, Available at SSRN: https://ssrn.com/abstract=2657143

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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