Rulemaking Inaction and the Failure of Administrative Law
38 Pages Posted: 29 May 2019
Date Written: April 21, 2019
Abstract
Administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, but those protections evaporate concerning rulemaking inaction. Inaction has therefore become a strategy of deregulation with the impact of postponing regulation for years, maybe a decade. Despite the difficulty of judging an agency’s claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress’ commitment to protect people and the environment as specified in an agency’s mandate.
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