Hiding in plain sight? Timing and transparency in the administrative state

University of Chicago Law Review

Volumn 76, Issue 3, 2009, Pages 1157-1213

  Gersen, Jacob E ^a,b   O'Connell, Anne Joseph ^c  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 71849102350     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (369)

1. The evidence of controversial policy announcements being made just before weekends and holidays is largely anecdotal. One rigorous empirical study concluded that the president is less likely to sign noncontroversial executive orders or legislation containing good news on Fridays See Stefano DeliaVigna and Joshua Pollet, Strategic Release of Information on Friday: Evidence from Earnings Announcements *25-27, 48 (unpublished manuscript 2005). The string of executive orders issued on Fridays or immediately before holiday weekends is striking. For example, the executive order interpreting Common Article 3 of the Geneva Conventions as not applying to enemy combatants was issued on a Friday, July 20, 2007.
2. Executive Order 13440, 3 CFR § 229. This Friday phenomenon for executive orders is not a recent innovation in politics President Richard Nixon's order granting broad authority to investigate Americans suspected of being threats to national security also was issued on a Friday, July 2,1971.
3. Executive Order 11605 3 CFR §176 (1972). To be certain, not all potentially controversial executive orders are issued on Fridays President John F. Kennedy's order to end racial discrimination in subsidized housing was issued on a Tuesday, Nov 20, 1962.
4. Executive Order 11063, 3 CFR § 261 (1963). President Harry Truman's order to racially integrate the military was issued on a Monday, July 26, 1948.
5. Executive Order 9981, 13 Fed Reg 4313 (1948). In the last two examples the presidents likely wanted to maximize media attention.
6. Stephen Engelberg, The Bad News Hour: 4 P.M. Friday, NY Times A20 (Apr 6, 1984)
7. (quoting Gergen). President Reagan made the following announcements on Fridays: the formal end to the international peacekeeping force in Lebanon, the release of a commission report criticizing the administration's arms control policies, the controversial settlement of a big antitrust case against AT&T and IBM, the restoration of tax breaks to schools that discriminate on race, and the imposition of lifetime nondisclosure mandates on more than 100,000 federal officials Id.
8. See Robert Pear, Rules May Limit Health Program Aiding Children, NY Times A1 (Aug 21, 2007).
9. Cindy Skrzycki, New Rules Delivered Just in Time for Holidays, Wash Post D1 (Jan 9, 2007).
10. The SEC contended that the timing of the "noncontroversial" policy announcement resulted from when the Office of Management and Budget (OMB) approved the rule for promulgation. Id.
11. Id (reporting that although the FDA released the announcement regarding cloned milk on December 28, it nonetheless received plenty of attention because many groups were interested in the topic).
12. Amy Goldstein and Sarah Cohen, Bush Forces a Shift in Regulatory Thrust; OSHA Made More Business-friendly, Wash Post A1 (Aug 15, 2004).
13. Id.
14. Skrzycki, New Rules Delivered Just in Time for Holidays, Wash Post at D1 (cited in note 4) (reporting statements of Larry Haas, the OMB spokesman for the Clinton administration).
15. See also Seth Borenstein, Bush's Environmental Policies Have Been a Matter of Detail; Wrought Quietly, Big Changes Have Set Critics Howling, Milwaukee J Sentinel A19 (Jan 26, 2003) (listing a series of environmental policy announcements made by the recent Bush administration on Fridays).
16. The corporate literature has fleshed out several theories to explain the timing of business announcements The most intuitive theory posits that companies want to minimize or postpone public and market scrutiny of bad news See Mark Bagnoli, William Kross, and Susan G. Watts, The Information in Management's Expected Earnings Report Date: A Day Late, a Penny Short, 40 J Acct Rsrch 1275, 1279-80 (2002) (listing reasons managers might delay earnings reports);
17. Aswath Damodaran, The Weekend Effect in Information Releases: A Study of Earnings and Dividend Announcements, 2 Rev Fin Stud 607, 608-09 (1989) (finding that firms are more likely to report bad news on Fridays and after markets close);
18. Stephen H. Penman, The Distribution of Earnings News over Time and Seasonalities in Aggregate Stock Returns, 18 J Fm Econ 199, 203 (1987) (demonstrating that earnings reports published later in the calendar quarter are more likely to convey bad news);
19. Anne E. Chambers and Stephen H. Penman, Timeliness of Reporting and the Stock Price Reaction to Earnings Announcements, 22 J Acct Rsrch 21, 22 (1984) (finding that delayed earnings reports are associated with negative returns, which suggests that they contain bad news);
20. James M. Patell and Mark A. Wolfson, Good News, Bad News, and the Intraday Timing of Corporate Disclosures, 57 Acct Rev 509, 525 (1982) (concluding that the likelihood of companies releasing bad news increases after the close of trading). A related theory hypothesizes that although businesses cannot hide poor results with a now twenty-four-hour news cycle, weekends and holidays can "distract" investors temporarily.
21. See DellaVigna and Pollet, Strategic Release of Information on Friday at *1 (cited in note 1).
22. See also Mark Bagnoli, Michael Clement, and Susan G. Watts, Around-the-Clock Media Coverage and the Timing of Earnings Announcements *22-23 (McCombs Research Paper Series No ACC-02-06, Dec 2005), online at http://ssrn.com/abstract=570247 (visited Sept 1, 2009) (concluding that although continuous media coverage has decreased the opportunities for after-trading announcements, negative earnings news is released disproportionately on Fridays).
23. Another theory, at odds with the first two, suggests that companies instead announce bad news earlier (and perhaps loudly) to manage analyst expectations See Carl R. Chen and Nancy J. Mohan, Timing the Disclosure of Information: Management's View of Earnings Announcements, 23 Fm Mgmt 3, 63, 65 (1994) (quoting CEO survey responses suggesting that they often release lower-than-expected earnings earlier).
24. Compare Jeffrey T. Doyle and Matthew Magilke, The Timing of Earnings Announcements: An Examination of the Strategic Disclosure Hypothesis *2-3 (Mar 2008), online at http://ssrn.com/abstract-995580 (visited Sept 1, 2009) (disputing the conventional view that managers engage in opportunistic release of information).
25. But see J.R. DeShazo and Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U Pa L Rev 1499, 1533-38 (2007) (discussing the variables impacting the timing of federal regulatory action regarding climate change pollutants).
26. See also Anne Joseph O'Connell, Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 Va L Rev 889, 943-51 (2008) (examining early and late rulemaking activities within presidential administrations);
27. Jacob E. Gersen and Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U Pa L Rev 923, 971-77 (2008) (examining the role of statutory and judicial deadlines in changing agency behavior);
28. Jacob E. Gersen and Eric A. Posner, Timing Rules and Legal Institutions, 121 Harv L Rev 543, 545-46 (2007) (analyzing timing rules imposed on legislative and regulatory activity).
29. The political science literature contains some studies that implicate timing issues, but none, as far as we are aware, emphasizes the strategic issuance of agency decisions Consider generally Alan M. Jacobs, The Politics of When: Redistribution, Investment, and Policy Making for the Long Term, 38 Brit J Polit Sci 193 (2008) (examining pension reform in Britain and the United States to develop an intertemporal understanding of the policy choices of political actors);
30. Daniel Béland and Patrik Marier, Protest Avoidance: Labor Mobilization and Social Policy Reform in France, 11 Mobilization 377 (2006) (arguing that by launching controversial reforms at the start of the summer holiday season, the French government reduced the scope of mobilization in opposition to the reforms);
31. Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton 2004);
32. Tajuana D. Massie, Thomas G. Hansford, and Donald R. Songer, The Timing of Presidential Nominations to the Lower Federal Courts, 57 Polit Rsrch Q 145 (2004) (developing a strategic explanation that the timing of presidential appointments is a function of politics and institutional constraints);
33. Daniel P. Carpenter, Groups, the Media, Agency Waiting Costs, and FDA Drug Approval, 46 Am J Polit Sci 490 (2002) (exploring what variables impact the time variance for FDA approval of different drugs);
34. Janet M. BoxSteffensmeier, Laura W. Arnold, and Christopher J.W. Zorn, The Strategic Timing of Position Taking in Congress: A Study of the North American Free Trade Agreement, 91 Am Polit Sci Rev 324 (1997) (developing a dynamic model of strategic position announcements to help explain why congressional actors vote when they do);
35. Amihai Glazer, et al, Strategic Vote Delay in the US House of Representatives, 20 Legis Stud Q 37 (1995) (finding that representatives who are voting against their party delay their votes).
36. There is also literature on bureaucratic delay. See, for example, Lea-Rachel D. Kosnik, Sources of Bureaucratic Delay: A Case Study of FERC Dam Relicensing, 22 J L, Econ, & Org 258 (2006) (examining the heterogeneity of regulation process times and explaining how interest groups, the legislature, and bureaucratic discretion impact the timing of regulatory decisions);
37. Mary K. Olson, Managing Delegation in the FDA: Reducing Delay in New Drug Review, 29 J Health Polit, Policy, & L 397 (2004) (finding that user-fee reform decreased FDA drug review times by 34 percent);
38. Daniel P. Carpenter, Why Do Bureaucrats Delay? Lessons from a Stochastic Optimal Stopping Model of Agency Timing, with Applications to the FDA, in George A. Krause and Kenneth J. Meier, eds, Politics, Policy, and Organizations: Frontiers in the Scientific Study of Bureaucracy (Michigan 2003);
39. Hilary Sigman, The Pace of Progress at Superfund Sites: Policy Goals and Interest Group Influence, 44 J L & Econ 315 (2001) (demonstrating that the time taken to clean up superfund sites can be explained by the influence of concentrated private interests);
40. Amy Whritenour Ando, Waiting to Be Protected under the Endangered Species Act: The Political Economy of Regulatory Delay, 42 J L & Econ 29 (1999) (finding that public support or opposition can significantly affect the timing of decisions to add species to the endangered species list).
41. See generally Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum L Rev 1749 (2007).
42. See generally Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J L, Econ, & Org 243 (1987) (discussing how political actors design legislative constraints on agency actions to minimize information inequalities and to increase political control over the bureaucracy).
43. See generally Richard W Murphy, Hunters for Administrative Common Law, 58 Admin L Rev 917 (2006) (examining the concept of "administrative common law" and its strengths and weaknesses for harnessing agencies' power to make the law say what they want it to say);
44. John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex L Rev 113 (1998).
45. See Cass R. Sunstein, Law and Administration after Chevron, 90 Colum L Rev 2071, 2111-2114 (1990).
46. See generally, for example, Richard H. Pildes and Cass R. Sunstein, Reinventing the Regulatory State, 62 U Chi L Rev 1 (1995);
47. Geoffrey P. Miller, Independent Agencies, 1986 S Ct Rev 41 (analyzing the constitutional parameters of agency independence by focusing on the scope of the removal power of the president);
48. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum L Rev 573 (1984).
49. Compare Steven G. Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J 541 (1994) (arguing that the Constitution allocates the power of law execution and administration to the executive alone);
50. Steven G. Calabresi and Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv L Rev 1153 (1992) (supporting the unitary theorist argument that all federal officers exercising executive power must be subject to the direct control of the president),
51. with Lawrence Lessig and Cass R. Sunstein, The President and the Administration, 94 Colum L Rev 1 (1994) (using an originalist analysis to argue that the Framers envisioned a large degree of congressional power to structure and limit the administration as Congress thought appropriate).
52. See also generally Symposium on Administrative Law: The Uneasy Constitutional Status of the Administrative Agencies, 36 Am U L Rev 277 (1986).
53. See, for example, Richard J. Pierce, Jr, Seven Ways to Deossify Agency Rulemaking, 47 Admin L Rev 59,65 n 44 (1995).
54. See 5 USC §§552(a)(1)(D), 553(b)-(d) (mandating that agencies publish substantive rules of general applicability, statements of general policy, and notices of proposed rulemaking in the Federal Register).
55. See 5 USC § 552(a)(1)(D).
56. See 5 USC § 553(b)-(d); Weyerhaeuser Co v Costle, 590 F2d 1011, 1027-28 (DC Cir 1978) (stressing the importance of procedural "openness, explanation, and participatory democracy" in agency regulation);
57. United States v Nova Scotia Food Products Corp, 568 F2d 240, 252 (2d Cir 1977) (invalidating FDA regulation of the production of smoked whitefish because the agency failed to disclose the scientific formula it used to define "insanitary conditions").
58. There are some large exceptions to the general requirement of prior notice and comment. See, for example, 5 USC § 553(a) (excluding regulations that involve "a military or foreign affairs function of the United States" or "a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts");
59. 5 USC § 553(b)(3)(B) (permitting an agency to forego prior notice and opportunity for comment if such procedures are "impracticable, unnecessary, or contrary to the public interest").
60. See also O'Connell, 94 Va L Rev at 902 n 33, 929-936 (cited in note 10) (summarizing the literature on rulemaking without prior notice and comment and detailing agency use of direct and interim final rulemaking).
61. See, for example, James Risen and Eric Lichtblau, Bush Lets US Spy on Callers without Courts, NY Times A1 (Dec 16, 2005) (breaking the story of warrantless wiretapping of Americans by the National Security Agency "to search for evidence of terrorist activity").
62. Administrative Procedure Act, Pub L No 89-554, 80 Stat 381 (1966), codified as amended at 5 USC § 551 et seq.
63. See 5 USC § 553(d) (providing for a thirty-day lag before a rule becomes effective);
64. 5 USC § 801(a)(3) (providing for a sixty-day lag before a major rule becomes effective).
65. See, for example, 5 USC § § 553, 706(2) (providing for the scope and process of judicial review of agency actions);
66. United States v Mead Corp, 533 US 218, 224-25 (2001);
67. Chevron USA. lnc v NRDC, 467 US 837, 840 (1984);
68. Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Co, 463 US 29, 41 (1983);
69. Sierra Club v Costle, 657 F2d 298, 312 (DC Cir 1981);
70. Weyerhaeuser, 590 F2d at 1024-25 (reviewing challenges based on the agency's statutory authority, procedural fairness, and abuse of discretion);
71. Nova Scotia Food Products, 568 F2d at 249 (deciding whether promulgation of the agency rule was arbitrary, capricious, or an abuse of discretion).
72. See 5 USC § 553(b)-(c) (requiring that notice of a proposed rulemaking be published in the Federal Register and must include the time and location of the public rulemaking proceedings);
73. Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 Admin L Rev 411, 419-422 (2005) (describing the "limited right" of the public to participate in regulatory rulemaking).
74. We use the terms "rule withdrawal," "rulemaking withdrawal," "withdrawal of a proposed rule," and "withdrawal of an uncompleted rule" interchangeably. The terms refer to the abandonment or cancellation of a rulemaking that the agency had not yet completed. In other words, rule withdrawals are not rescissions of rules already in effect. Such rescissions typically require notice and comment or legislative repeal, whereas withdrawals do not. See 5 USC § §801-08 (establishing a fast-track legislative repeal process);
75. State Farm, 463 US at 38 (providing an example of rescission through notice and comment);
76. Kennecott Utah Copper Corp v Department of Interior, 88 F3d 1191, 1206 (DC Cir 1996) (allowing agencies to withdraw regulations "until virtually the last minute before public release").
77. See, for example, Merrick B. Garland, Deregulation and Judicial Review, 98 Harv L Rev 505, 508-09 (1985);
78. Marianne Koral Smythe, Judicial Review of Rule Rescissions, 84 Colum L Rev 1928, 1929 (1984).
79. See, for example, Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 NYU L Rev 1657, 1659-61 (2004) (contending that current doctrine on inaction conflicts with the need to prevent agency arbitrariness);
80. Richard J. Pierce, Jr, The Role of the Judiciary in Implementing an Agency Theory of Government, 64 NYU L Rev 1239, 1243-44 (1989) (arguing that deferential judicial review does not undermine the political accountability of agencies);
81. Cass R. Sunstein, Reviewing Agency Inaction after Heckler v. Chaney, 52 U Chi L Rev 653, 665 (1985) (supporting judicial review of agency inaction).
82. But see Kathryn A. Watts, Proposing a Place for Politics in Arbitrary-and-Capricious Review, 119 Yale L J (forthcoming 2009) (noting, through examples, that political factors play a role in withdrawals and suggesting that withdrawals may be a particularly good area for courts to Start explicitly considering political factors as part of arbitrary-and-capricious review);
83. O'Connell, 94 Va L Rev at 959-63 (cited in note 10) (finding that "after a political transition, agencies withdraw uncompleted rulemakings started under a previous administration");
84. Robert Shull and Genevieve Smith, The Bush Regulatory Record A Pattern of Failure, 11-15 (OMB Watch Sept 2004), online at https://www.poucyarchive.org/ handle/10207/5083 (visited Sept 1, 2009) (lamenting the withdrawal of many public health, safety, and environmental proposals during the George W. Bush administration);
85. Raymond Murphy, Note, The Scope of Review of Agencies' Refusals to Enforce or Promulgate Rules, 53 Geo Wash L Rev 86, 88 (1985) (sketching out the scope of judicial review of rule withdrawals based on then-recent court decisions).
86. See O'Connell, 94 Va L Rev at 959-963 (cited in note 10).
87. See, for example, David E. Lewis, Presidents and the Politics of Agency Design 39-69 (Stanford 2003) (analyzing how certain variables, such as divided government or the durability of a president, impact the extent to which Congress chooses to insulate agencies from executive control).
88. See also Jacob E. Gersen, Designing Agencies: Public Choice and Public Law, in Daniel A. Farber and Anne Joseph O'Connell, eds, Research Handbook in Public Law and Public Choice *3 (Edward Elgar forthcoming 2009) (discussing the theoretical bases for the creation of administrative agencies and analyzing the "conceptual relationship between the design of agency decisionmaking structures and the extent of control by other political institutions like the legislature").
89. See generally, for example, David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers (Cambridge 1999).
90. See, for example, Mathew D. McCubbins Roger G. Noll, and Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va L Rev 431, 432-433 (1989).
91. See, for example, Mathew D. McCubbins and Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, 28 Am J Polit Sci 165, 171 (1984).
92. See, for example, Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2319 (2001) (arguing that concerns relating to the accountability and effectiveness of government action support a strong role for the president in setting administrative direction).
93. See, for example, Richard W Waterman, Amelia A. Rouse, and Robert L. Wright, Bureaucrats, Politics, and the Environment 90-97 (Pittsburgh 2004) (finding that EPA administrators considered the federal courts to be the third most influential actor in exerting influence over the manner in which the EPA enforces the law);
94. Peter H. Schuck and E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L J 984, 1054 (undertaking an extensive empirical analysis of how agency actions fare when subject to direct appellate review, and providing basic conclusions regarding the impact of judicial review on agency action);
95. R. Shep Melnick, Regulation and the Courts: The Case of the Clean Air Act 344-345 (Brookings 1983) (critiquing the impact of the courts on the regulatory implementation of the Clean Air Act).
96. See, for example, Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 213-236 (Princeton 2008) (seeking to identify conditions under which socially beneficial regulation might be expected, even over the opposition of powerful interest groups).
97. But see note 10.
98. There is a fine difference between an agency deciding that it will not take a particular action and an agency not acting (often called agency inaction). The Supreme Court's recent decision in Massachusetts v EPA, 549 US 497, 509-12, 527-28 (2007) (reviewing the EPA's decision to deny a petition for rulemaking to regulate greenhouse gas emissions), is an example of the former;
99. its decision in Norton v Southern Utah Wilderness Alliance, 542 US 55, 60-61 (2004) (dismissing a suit brought against the Bureau of Land Management for failure to take action to protect public lands from damage caused by off-road vehicles), is an example of the latter. We refer here to agency inaction.
100. See 5 USC § 706(1) (providing that a reviewing court shall compel an agency to take an action that it had "unreasonably delayed");
101. Norton, 542 US at 66-67 (deciding that the Bureau of Land Management was not legally required to take action, so its action could not be "unreasonably delayed");
102. Forest Guardians v Babbitt, 164 F3d 1261, 1272, 1274 (10th Cir 1998) (concluding that the Department of Interior unreasonably delayed in protecting the habitat of the silvery minnow because it did not meet a congressionally imposed deadline for agency action);
103. Oil, Chemical and Atomic Workers International Union v Zegeer, 768 F2d 1480, 1488 (DC Cir 1985) (holding that the Mine Safety and Health Administration was proceeding on a reasonable schedule to regulate miners' radon exposure, so a court order was not warranted);
104. Telecommunications Research and Action Center v FCC, 750 F2d 70, 79 (DC Cir 1984) (evaluating for reasonableness the FCCs five-year delay in its inquiry into AT&T's rate of return).
105. See also generally Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va Envir L J 461 (2008) (arguing that ultimately judicial review of agency inaction is no different than judicial review of agency action);
106. Eric Biber, The Importance of Resource Allocation in Administrative Law, 60 Admin L Rev 1 (2008) (constructing a framework that allows courts to understand whether and how they should review agency inaction);
107. DeShazo and Freeman, 155 U Pa L Rev 1499 (cited in note 10) (analyzing why the federal government delayed producing national standards for climate change pollutants);
108. Jody Freeman and Adrian Vermeule, Massachusetts v EPA; From Politics to Expertise, 2007 S Ct Rev 51 (arguing that the Court is willing to carefully scrutinize agency discretion to "decide not to decide" because the Court currently is concerned with insulating expert agencies from political influence);
109. Bressman, 79 NYU L Rev 1657 (cited in note 27) (arguing that courts should subject agency inaction to the same principles of judicial review that apply to agency action);
110. Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn L Rev 689 (1990) (asserting that courts should more overtly weigh pragmatic considerations when deciding whether a particular agency action should be deemed "unreviewable").
111. See, for example, Jason Webb Yackee and Susan Webb Yackee, Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making Ossified?, J Pub Admin Rsrch & Theory (forthcoming 2009);
112. William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals through Informal Rulemaking?, 94 Nw U L Rev 393, 396 (2000) (finding that judicial review under the "hard look" standard did not significantly impede agencies' pursuit of their policy goals);
113. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Tex L Rev 525,557 (1997) (arguing that "hard look" judicial review can stymie the implementation of protective legislation);
114. Peter L. Strauss, The Rulemaking Continuum, 41 Duke L J 1463, 1487-89 (1992) (discussing how judicial enforcement of various rulemaking procedures may incentivize agencies to release less information to the public during the rulemaking process);
115. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L J 1385,1410-36 (1992) (extensively reviewing the procedural, analytical, and substantive requirements that have ossified the rulemaking process);
116. Jerry L. Mashaw and David L. Harfst, The Struggle for Auto Safety 224-231 (Harvard 1990) (analyzing how the confluence of congressional and judicial influences on the administrative state can dramatically affect regulatory output).
117. This Article focuses on core timing decisions related to the monitoring costs theory. One of us has explored timing decisions related to political transitions elsewhere. See generally O'Connell, 94 Va L Rev 889 (cited in note 10) (examining whether agencies start more rulemakings in the first year of a presidential administration, whether agencies complete more rules in the final quarter of an administration or outgoing Congress, and whether agencies withdraw more rulemakings after a shift in the White House or Congress). We have also examined the duration of agency rulemaking in a separate article.
118. See generally Gersen and O'Connell, 156 U Pa L Rev 923 (cited in note 10) (analyzing the effects of deadlines and other factors on the duration of agency rulemaking).
119. Consider Matthew C Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv L Rev 528, 530 (2006) (analyzing agency choices between substance and procedure).
120. See Executive Order 12866 § 6(a)(1), 58 Fed Reg 51735 (1993) ("[E]ach agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days");
121. FDA, Making Your Voice Heard at FDA: How to Comment on Proposed Regulations and Submit Petitions (Feb 7, 2008), online at http://www.fda.gov/ opacom/backgrounders/voice.html (visited Sept 1, 2009).
122. See 5 USC § 553(d).
123. See 5 USC § 801(a)(3).
124. A major rule is any rule OMB finds will have or is likely to have "an annual effect on the economy of $100,000,000 or more," "a major increase in costs or prices for consumers individual industries, Federal, State, or local government agencies, or geographic regions" or a "significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets" 5 USC § 804.
125. See generally Christopher R. Berry, Imperfect Union: Representation and Taxation in Multi-level Governments (Cambridge forthcoming 2009) (developing the idea of selective participation in other political contexts).
126. The conventional account for Friday night earnings announcements in the business context-solidified in the 1980s-also recently has come under scrutiny. See Doyle and Magilke, Timing of Earnings Announcements at *4 (cited in note 9) (finding support for the "benign" hypothesis that managers release worse earnings news when the market is closed in order to disseminate the information more broadly);
127. Chen and Mohan, 23 Fm Mgmt at 63, 65 (cited in note 9) (arguing that companies affirmatively try not to hide poor earnings announcements to manage the evaluations of analysts). Our critique of the conventional wisdom in the public sector also has some applicability to the corporate sector. After all, businesses cannot hide their earnings statements when the market reopens on Monday morning.
128. For overviews of the delegation literature, see Epstein and O'Halloran, Delegating Powers at 14-29 (cited in note 31) (exploring the history and theory of delegation and delegation mechanisms);
129. D. Roderick Kiewiet and Mathew D. McCubbins, The Logic of Delegation: Congressional Parties and the Appropriations Process 4-12 (Chicago 1991) (same).
130. See Executive Order 12866, 58 Fed Reg 51735 (1993), 3 CFR § 191.
131. See generally Roger H. Davidson and Walter J. Oleszek, Congress and Its Members (CQ Press 10th ed 2005).
132. See also Lewis, Presidents at 44-48 (cited in note 30);
133. Epstein and O'Halloran, Delegating Powers 18-29 (cited in note 31).
134. See also generally Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight (Brookings 1990);
135. McCubbins, Noll, and Weingast, 3 J L, Econ, & Org 243 (cited in note 12).
136. See note 23.
137. See Daniel P. Carpenter, Protection without Capture: Product Approval by a Politically Responsive, Learning Regulator, 98 Am Polit Sei Rev 613, 621 (2004) (demonstrating that the political organization of consumers can influence FDA regulatory outcomes);
138. Scott R. Furlong, Interest Group Influence on Rule Making, 29 Admin & Socy 325, 333-38 (1997);
139. Jason Webb Yackee and Susan Webb Yackee, A Bias towards Business? Assessing Interest Group Influence on the US Bureaucracy, 68 J Polit 128, 135 (2006) (finding that business commenters, but not other commenters, exert strong influence over the content of final rules).
140. See generally Susan Webb Yackee, Assessing Inter-institutional Attention to and Influence on Government Regulations, 36 Brit J Polit Sci 723 (2006).
141. See, for example, Goldstein and Cohen, Bush Forces a Shift in Regulatory Thrust, Wash Post at Al (cited in note 6) (discussing President Bush's withdrawal of many rules proposed but not formally promulgated during the Clinton administration).
142. See also generally Cary Coglianese and Margaret Howard, Getting the Message out: Regulatory Policy and the Press, 3 Intl J Press/Polit 39 (June 1998).
143. See David Epstein and Sharyn O'Halloran, A Theory of Strategic Oversight: Congress, Lobbyists, and the Bureaucracy, 11 J L, Econ, & Org 227, 228 (1995).
144. McCubbins and Schwartz, 28 Am J Polit Sei at 166 (cited in note 33) (explaining that police-patrol oversight is more centralized and direct, whereas fire-alarm oversight consists of a decentralized system, relying on the public to alert Congress to agency actions that are incongruent with congressional policies).
145. Id.
146. Id at 166-169
147. See Jacob E. Gersen, Legislative Rules Revisited, 74 U Chi L Rev 1705, 1709-13 (2007);
148. Lars Noah, Doubts about Direct Final Rulemaking, 51 Admin L Rev 401, 403 (1999);
149. Michael Asimow, Interim-final Rules: Making Haste Slowly, 51 Admin L Rev 703, 704 (1999);
150. Ronald M. Levin, Direct Final Rulemaking, 64 Geo Wash L Rev 1, 1-3 (1995).
151. Direct final rules, for example, do not take effect until thirty or sixty days have passed, assuming no adverse comments are submitted in that period. Levin, 64 Geo Wash L Rev at 1 (cited in note 58).
152. See, for example, Shull and Smith, The Bush Regulatory Record at 11-15 (cited in note 28).
153. See Part III.A.
154. See generally Stephenson, 120 Harv L Rev 528 (cited in note 42).
155. Similarly, given some set substance, both an agency that foregoes public comment and an agency that announces a policy decision on a holiday or weekend raise monitoring costs, but an agency that engages in particularly open proceedings (for instance, hearings and long comment periods) may offset the higher monitoring costs of a weekend announcement.
156. The Unified Agenda is published twice a year in the Federal Register. For a detailed description of the data and their advantages and limitations, see O'Connell, 94 Va L Rev at 924-929 (cited in note 10).
157. But consider DellaVigna and Pollet, Strategic Release of Information on Friday at *25-27 (cited in note 1) (analyzing the timing of executive orders).
158. Coding and results for all the data analysis are available from the authors
159. See note 73 for additional information on this issue.
160. Arguably, this was the case for (some) staff of the EPA and President George W. Bush. See Janet Wilson, EPA Chief Is Said to Have Ignored Staff, LA Tunes A30 (Dec 21, 2007) (reporting that the head of the EPA directly contradicted the written recommendations of the staff).
161. In addition, the Office of Information and Regulatory Affairs (OIRA), which arguably shared President Bush's preferences, also rejected the National Oceanic and Atmospheric Administration's proposed rule to cut down on the fishing of krill, a marine species and important food source for whales and other animals in the Pacific Ocean. See Fisheries off West Coast States; Coastal Pelagic Species Fishery; Amendment 12 to the Coastal Pelagic Species Fishery Management Plan, 72 Fed Reg 8335 (2007).
162. OIRA returned the proposed rule for reconsideration eight months later. Letter from Susan E. Dudley, Administrator, OIRA, to John J. Sullivan, General Counsel, Department of Commerce (Oct 30, 2007), online at http://www.reginfo. gov/public/return/return-doc-20071030.pdf (visited Sept 1, 2009). After revision, OIRA accepted the proposed rule.
163. See Fisheries Off West Coast States; Coastal Pelagic Species Fishery; Amendment 12 to the Coastal Pelagic Species Fishery Management Plan, 73 Fed Reg 29104 (2008).
164. See Nicholas Bagley and Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum L Rev 1260, 1278-79 (2006);
165. Robert W. Hahn and Robert E. Litan, Counting Regulatory Benefits and Costs: Lessons for the US and Europe, 8 J Intl Econ L 473, 476 (2005);
166. Robert W. Hahn and Mary Beth Muething, The Grand Experiment in Regulatory Reporting, 55 Admin L Rev 607, 613-26 (2003) (analyzing the effectiveness of the OMB's efforts to tally the costs and benefits of the regulations issued by several different federal agencies);
167. Kagan, 114 Harv L Rev at 2290-2299 (cited in note 34).
168. Consider Lewis Presidents at 39-69 (cited in note 30) (analyzing the degree to which Congress can insulate agencies from the influence of the executive);
169. Kagan, 114 Harv L Rev at 2376-2377 (cited in note 34) (explaining the factors that contribute to the extent of presidential control over an independent agency's actions).
170. Consider Bressman, 107 Colum L Rev at 1807 (cited in note H) (arguing that Chevron's equal applicability to independent and nonindependent agencies is not pigling because Congress "fill[s] the gaps" for the former and the president does so for the latter);
171. Strauss 84 Colum L Rev at 592 (cited in note 15) ("[A]s a former FTC Chairman recently remarked, the independent agencies 'have no lifeline to the White House. [They] are naked before Congress, without protection there,' because of the president's choice not to risk the political cost that assertion of his interest would entail.").
172. But see generally Neal Devins and David E. Lewis, Not-so Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 BU L Rev 459 (2008) (arguing that presidents have more power than ever before over independent-agency policymaking).
173. Throughout the Article, we use the House recess schedules as an indicator of legislative recess The House and Senate recesses overlap extensively, but not perfectly so. Congress spends a significant portion of the year in recess; the amount does vary, mainly by whether it is an election year (and then whether it is a presidential election or midterm election year). For example, in 2008, the House spent 170 calendar days in recess; in 2007, it was in recess for 114 calendar days
174. We also considered other ways to get at whether agencies were announcing "bad" or "good" news We might expect rulemaking announcements by conservative agencies (such as the Department of Defense) under President Clinton and liberal agencies (such as EPA or the US Agency for International Development) under Republican presidents to be more controversial than the reverse. For example, the "don't ask, don't tell" policy for gays in the military under President Clinton and the refusal to regulate greenhouse gases under President George W. Bush generated considerable opposition. See Paul Quinn-Judge, Military Policy on Gays Detailed; Conduct Is Target, Not One's Orientation, Boston Globe Metro 3 (Dec 23, 1993);
175. Massachusetts v EPA, 549 US 497, 509-12 (2007).
176. We were able to code thirty-seven of the forty-seven agencies in our database as liberal, neutral, or conservative using Professors Joshua Clinton and David Lewis's typology of agencies See Joshua D. Clinton and David E. Lewis, Expert Opinion, Agency Characteristics, and Agency Preferences, 16 Polit Analysis 3, 17-19 (2008). We then examined whether announcements from agencies not perceived to be ideologically close with the president were announced in low-visibility settings, but found that not to be the case. Generally, there was no significant correlation, except that withdrawals by ideologically close agencies were positively correlated with congressional recesses Coding, correlations, and regression results are available from the authors.
177. Model 1 is uninformative. The Likelihood Ratio for the Chi-Square test indicates that the model is not significant compared to a model with no explanatory variables In other words, we cannot conclude that at least one of the coefficients of the explanatory variables is not equal to zero.
178. Consider Douglas Kriner and Liam Schwartz, Divided Government and Congressional Investigations, 23 Legis Stud Q 295, 309 (2008) (finding that Congress conducts less oversight in election years controlling for divided government and other factors).
179. See Charles R. Shipan, Regulatory Regimes, Agency Actions, and the Conditional Nature of Congressional Influence, 98 Am Pol Sci Rev 467, 470 (2004) (noting that a regression of a particular regulatory output on political variables, such as divided government, over time may mask interesting connections because particular political configurations may be working in different directions).
180. But consider Watts, 119 Yale L J (forthcoming 2009) (cited in note 28) (describing some withdrawals and suggesting that agencies articulate political reasons for withdrawals in judicial review);
181. O'Connell, 94 Va L Rev at 959-63 (cited in note 10) (tracking withdrawals from 1983 to 2002);
182. Biber, 60 Admin L Rev at 29-30 (cited in note 39) (arguing that resource allocation concerns are mitigated by judicial review of agency withdrawals of partially completed rulemakings);
183. Jason M. Loring and Liam R. Roth, Note, After Midnight: The Durability of the "Midnight" Regulations Passed by the Two Previous Outgoing Administrations, 40 Wake Forest L Rev 1441, 1453-59 (2005) (studying empirically the response of new presidential administrations to midnight regulations);
184. Shull and Smith, The Bush Regulatory Record at 11-15 (cited in note 28) (analyzing withdrawals by the FDA and EPA from 2001 to 2004 and finding that they withdrew 60 and 52 percent of actions, respectively, carried over from the previous administration).
185. There is much more discussion in the mainstream press, though overall this coverage is quite limited. See, for example, R. Jeffrey Smith, Under Bush, OSHA Mired in Inaction, Wash Post A1 (Dec 29, 2008) (reporting that "Bush appointees ordered the withdrawal of dozens of workplace health regulations" in response to industry pressure);
186. Sarah Cohen and Laura Stanton, Comparing Presidential Action on Regulations, Wash Post A14 (Aug 15, 2004);
187. Goldstein and Cohen, Bush Forces a Shift in Regulatory Thrust, Wash Post at A1 (cited in note 6).
188. See, for example, Ronald A. Cass Colin S. Diver, and Jack M. Beermann, Administrative Law: Cases and Materials 798 (Aspen 5th ed 2006);
189. William F. Funk, Sidney A. Shapiro, and Russell L. Weaver, Adminbtrative Procedure and Practice: Problems and Cases 68-69 (Thomson West 3d ed 2006);
190. Jerry L. Mashaw, et al, Administrative Law: The American Public Law System 895-897 (4th ed 1998).
191. See generally, for example, DeShazo and Freeman, 155 U Pa L Rev 1499 (cited in note 10) (analyzing what factors influenced the implementation of federal regulatory action regarding climate change pollutants).
192. See Bressman, 107 Colum L Rev at 1761-1763 (cited in note 11).
193. See SEC v Chenery Corp, 332 US 194, 202 (1947) ("In performing its important functions . an administrative agency must be equipped to act either by general rule or by individual order.");
194. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L J 952, 1000-01 (2007).
195. See, for example, New York v EPA, 413 F3d 3, 10 (DC Cir 2005).
196. See Administrative Conference of the United States, Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60 Fed Reg 43108, 43110-13 (1995) (recommending these forms of rulemaking for urgent or noncontroversial rules);
197. Asimow, 51 Admin L Rev at 712-15 (cited in note 58);
198. Noah, 51 Admin L Rev at 401-02 (cited in note 58);
199. Office of the Vice President, Improving Regulatory Systems: Accompanying Report of the National Performance Review Recommendation 5 (1993), online at http://govinfo.library.unt.edu/npr/library/reports/reg.html (visited Sept 1, 2009);
200. Levin, 64 Geo Wash L Rev at 1 (cited in note 58).
201. See, for example, NRDC v Abraham, 355 F3d 179, 184, 205-06 (2d Cir 2004) (holding that Department of Energy (DOE) withdrawal of air conditioner efficiency standards was improper based on its interpretation of the statute and its manner of promulgating delays);
202. Methodist Hospital of Sacramento v Shalala, 38 F3d 1225, 1236-1238 (DC Cir 1994) (upholding a policy of the Secretary of Health and Human Services to revise Medicare reimbursement rates though it did not include notice-and-comment procedures).
203. See, for example, Abraham, 355 F3d at 191-194 (confirming subject matter jurisdiction over petitioner's challenge to the DOE's amendments).
204. See, for example, Norton v Southern Utah Wilderness Alliance, 542 US 55, 60-61 (2004).
205. But see Biber, 60 Admin L Rev at 30 (cited in note 39).
206. Rejections of petitions to the agency for rulemaking also sit between agency action and inaction. The agency must consider the petition, often engaging in notice and comment, before rejecting it. Withdrawals are somewhat different than rejections of such petitions because they involve rulemakings started by the agency.
207. But see Biber, 60 Admin L Rev at 53 (cited in note 39) (labeling withdrawals as agency action);
208. Murphy, Note, 53 Geo Wash L Rev at 88 (cited in note 28) (exploring judicial review of agency withdrawals).
209. We assume here that the agency does not quickly follow a withdrawal with a final rule. Consider Texas v Lyng, 868 F2d 795, 797 (5th Cir 1989) (finding that the agency did not violate the APA's notice-and-comment rulemaking requirements in adopting a final rule without allowing additional time for comment after withdrawing its proposal).
210. See 16 USC §1533(b)(6).
211. See, for example, Federation of Fly Fbhers v Daley, 131 F Supp 2d 1158, 1169 (ND Cal 2000);
212. Save Our Springs v Babbitt, 27 F Supp 2d 739, 748 (WD Tex 1997).
213. 42 USC § 7412(b)(2)-(3).
214. See, for example, NRDC v EPA, 824 F2d 1146, 1149 (DC Cir 1987) (reviewing EPA's decision to withdraw a proposal for stricter vinyl chloride emissions as a decision not to implement).
215. Similarly, under the Mine Safety and Health Act, the Secretary of Labor may abandon a proposed "health or safety standard" as long as he
216. This is an explicit exception to the secretary's "affirmative duty to complete" a rule once he has identified the need for it. United Mine Workers v Department of Labor, 358 F3d 40, 43 (DC Cir 2004) (holding that the affirmative duty to complete a rule does not preclude the secretary from withdrawing a proposed rule).
217. See, for example, the Energy Policy and Conservation Act, Pub L No 94-163, 89 Stat 871 (1975), codified at 42 USC § 6201 et seq (lacking explicit discussion of abandonment or withdrawal of proposed rulemakings).
218. 811 F2d 613 (DC Cir 1987),
219. vacd as moot, 817 F2d 890 (DC Cir 1987).
220. 811 F2d at 623 (requiring the secretary to issue the rule within thirty days of the holding).
221. Id at 622.
222. 852 F2d 1316 (DC Cir 1988).
223. Id at 1318, 1329-1330 (finding that EPA's decision to withdraw was contrary to congressional intent and that the agency's reasoning only supported refining the proposal, not withdrawing it altogether).
224. 749 F2d 740 (DC Cir 1984).
225. Environmental Defense Fund, 852 F2d at 1324,
226. citing Clark, 749 F2d at 744.
227. Environmental Defense Fund, 852 F2d at 1320 (referencing the statutory language, which imposed an affirmative obligation upon EPA to determine whether a regulation was or was not necessary, and publish a determination and the rationale for the determination in the Federal Register).
228. 542 US 55 (2004).
229. Id at 64.
230. Compare Massachusetts v EPA, 549 US 497, 527-528 (2007) (noting that rejections of rulemaking petitions "are thus susceptible to judicial review, though such review is 'extremely limited' and 'highly deferential'") (citation omitted).
231. 470 US 821 (1985).
232. Id at 834.
233. Animal Legal Defense Fund v Veneman, 469 F3d 826 (9th Cir 2006), vacd en banc, 490 F3d 725 (9th Cir 2007).
234. See, for example, Environmental Defense Fund, 852 F2d at 1318 (condemning EPA's decision to remove certain mining wastes from a hazardous waste list as "arbitrary and capricious").
235. But consider Kennecott Utah Copper Corp v Department of the Interior, 88 F3d 1191, 1207 (DC Cir 1996) ("Because [the agency's] decision to withdraw the [proposed rulemaking] did not alter substantive legal obligations under previously published regulations the agency's decision to withdraw the document did not constitute a 'regulation' within the meaning of [the relevant act].").
236. 749 F2d at 744.
237. Id.
238. 710 F2d 842 (DC Cir 1983).
239. Id at 846.
240. Id at 846-47. The court explained:Thus, to the extent that NHTSA's public statements withdrawing its January Notice represent a binding decision not to adopt or enforce improved fuel efficiency standards for particular years in the future, but rather represent a decision to maintain the 27.5 mpg standard provided for by Congress, they logically should be ripe for review.
241. Id at 847. The court determined, however, that the agency's decision to abandon the rulemaking as it applied to post-1985 models was not final, and thus was not ripe for review.
242. Id at 848-849 117 606 F2d 1031 (DC Cir 1979).
243. Id at 1047.
244. Id. The court refused to adopt a per se rule of reviewability, noting "the interests of the plaintiffs are usually not compelling, there is a possibility of some minor interference with effective agency performance, and the issues will often be poorly suited for judicial resolution."
245. Id.
246. Indeed, in NRDC v SEC, the court affirmed the agency's decision.
247. Id at 1062.
248. See also Consumer Federation of America v Consumer Product Safety Commision, 990 F2d 1298, 1305 (DC Cir 1993) (holding that the Commission's decision not to pursue a regulation for all-terrain vehicles was entitled to a substantial degree of deference on review);
249. NRDC v EPA, 824 F2d at 1159 (declining to limit the discretion of the agency in determining appropriate regulations under the Clean Air Act);
250. Professional Drivers Council v Bureau of Motor Carrier Safety, 706 F2d 1216, 1221 (DC Cir 1983) ("The agency must be accorded considerable deference in evaluating information presented and reaching decisions based upon its expertise.").
251. But consider Competitive Enterprise Institute v National Highway Traffic Safety Administration, 956 F2d 321, 323 (DC Cir 1992) ("We cannot defer to mere decisional evasion.");
252. Williams Natural Gas v Federal Energy Regulatory Commision, 872 F2d 438, 450 (DC Cir 1989) ("conclud[ing] that the Commission has failed to provide a satisfactory explanation for its termination of [the proposed rulemaking]").
253. See, for example, Center for Auto Safety, 710 F2d at 847-849 (holding that a challenge to a withdrawal of an advanced NPRM was not ripe).
254. 469 F3d 826 (9th Cir 2006), vacd en banc, 490 F3d 725 (9th Cir 2007).
255. 490 F3d at 726.
256. Animal Legal Defense Fund, 469 F3d at 839-840, 844 (permitting a challenge to the US Department of Agriculture's decision not to adopt a draft policy protecting the psychological well-being of primates in zoos and research facilities).
257. Id at 840.
258. Id at 841-842
259. See United Mine Workers, 358 F3d at 43-44 (demonstrating that once an agency has embarked on a course of rulemaking, a court can review the agency's decision to abandon the proposed rulemaking);
260. Center for Auto Safety, 710 F2d at 847-49;
261. Professional Drivers Council, 706 F2d at 1220-1222 (upholding the Secretary of Transportation's decision not to amend regulations governing hours of service for truck drivers).
262. Animal Legal Defense Fund, 469 F3d at 843 (finding that the agency must have "held a rulemaking proceeding" and "compiled a record narrowly focused on the particular rules suggested but not adopted"),
263. quoting NRDC v SEC, 606 F2d at 1047.
264. Animal Legal Defense Fund, 469 F3d at 844.
265. Id (Kozinski dissenting) (citations omitted). Judge Kozinski argued that two of the three cases relied on by the majority pre-dated Chaney, and that the third did not involve a "discretionary course of action."
266. Id at 850 n 9 (Kozinski dissenting).
267. Id at 847.
268. Id at 850.
269. See Animal Legal Defense Fund v Veneman, 482 F3d 1156, 1156 (9th Cir 2007).
270. See Animal Legal Defense Fund, 490 F3d at 725.
271. 5 USC § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.").
272. 520 US 154 (1997).
273. Id at 177-178 (citations omitted).
274. See Curtis W. Copeland, Midnight Rulemaking: Considerations for Congress and a New Administration 10 n 35 (Congressional Research Service, Nov 24, 2008), online at http://www.fas.org/sgp/crs/misc/RL34747.pdf (visited Sept 1, 2009).
275. See, for example, AARP v EEOC, 823 F2d 600, 604 (DC Cir 1987).
276. See Animal Legal Defense Fund, 469 F3d at 852 (Kozinski dissenting).
277. Id at 840.
278. 5 USC § 701(a)(2) (precluding judicial review of agency action that "is committed to agency discretion by law").
279. 470 US at 831-832
280. Id at 825 n 2.
281. See id at 850 n 7 (Marshall concurring).
282. See Biber, 60 Admin L Rev at 30 n 95 (cited in note 39) (explaining that different levels of agency action should warrant varying levels of deference by the courts).
283. See 5 USC § 706;
284. Citizens to Preserve Overton Park, lnc v Volpe, 401 US 402, 419-420 (1971) (remanding a case because the lower court failed to review the full administrative record).
285. 824 F2d 1146 (DC Cir 1987).
286. See id at 1149.
287. 811 F2d at 617 (holding that the withdrawal of the rule was contrary to law and mandating the agency to promulgate the proposed regulation within thirty days).
288. 469 F3d at 830-831
289. 956 F2d 321 (DC Cir 1992).
290. See id at 323 (reviewing the decision of the National Highway Traffic Safety Administration to terminate proceedings to modify miles per gallon standards).
291. 358 F3d 40 (DC Cir 2004).
292. See id at 42 (reviewing the withdrawal of a rule governing hazardous substances, which was proposed in 1989 and ultimately withdrawn in 2002).
293. Consider Smythe, 84 Colum L Rev at 1949-1950 (cited in note 26) (contending that courts should be more skeptical of rescissions of recently promulgated rules after political transitions).
294. For example, the courts could develop a new doctrine for agency actions during congressional recesses that draws on case law involving recess appointments To be sure, there are critical differences, including the lack of explicit constitutional and statutory provisions for nonappointment recess actions Consider generally Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L Rev 1487 (2005).
295. But consider Bonnichsen v United States, 217 F Supp 2d 1116, 1125 (D Or 2002) (noting that the Army Corps of Engineers had "[t]ak[en] advantage of a brief congressional recess" to announce the challenged decision, but not relying on the timing in reviewing the action).
296. 467 US 837 (1984).
297. Id at 842-843 (citations omitted).
298. See generally, for example, Matthew C Stephenson and Adrian Vermeule, Chevron Has Only One Step, 95 Va L Rev 597 (2009) (arguing that administrative law should jettison the twostep framework and ask the single question whether the agency's interpretation is permissible as a matter of statutory construction);
299. Thomas W. Merrill and Kristin E. Hickman, Chevron's Domain, 89 Georgetown L J 833 (2001) (asking to what sorts of statutes and to what types of agency interpretations the mandatory deference doctrine of Chevron should apply);
300. Ronald M. Levin, The Anatomy of Chevron; Step Two Reconsidered, 72 Chi Kent L Rev 1253 (1997) (exploring the meaning and role of the second step in the Chevron formula);
301. Mark Seidenfeld, A Syncopated Chevron; Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 Tex L Rev 83 (1994) (arguing that the Chevron model fails to accord with public policy and should be modified accordingly).
302. 533 US 218 (2001).
303. See id at 229.
304. See also Skidmore v Swift & Co, 323 US 134, 140 (1944) (requiring courts to assess multiple factors and decide on a case-by-case basis what level of deference to afford agency interpretations).
305. See Barnhart v Walton, 535 US 212, 222 (2002);
306. Mead, 533 US at 226-27.
307. Christensen v Harris County, 529 US 576, 586-88 (2000) (holding that interpretations contained in opinion letters do not merit Chevron deference).
308. See also Kristin E. Hickman and Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum L Rev 1235, 1238-39 (2007);
309. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand L Rev 1443, 1486 (2005) (arguing for a more formalistic analysis of agency actions that have taken the place of traditional legislative processes);
310. Adrian Vermeule, Introduction: Mead in the Trenches, 71 Geo Wash L Rev 347, 355-58 (2003) (assessing the increasing complexity of the Mead legal regime, and the burden it is imposing on the lower courts).
311. See 533 US at 226-227
312. See generally Cass R. Sunstein, Chevron Step Zero, 92 Va L Rev 187 (2006) ("The Court is apparently seeking to allow Chevron deference only, or mostly, when agency decisions have followed procedures that guarantee deliberation and reflectiveness");
313. Bressman, 58 Vand L Rev 1443 (cited in note 164);
314. Vermeule, 71 Geo Wash L Rev 347 (cited in note 164)
315. See, for example, Mead, 533 US at 245-246 (Scalia dissenting).
316. See, for example, Edelman v Lynchburg College, 535 US 106, 114 (2002) (implying that deference could be accorded to actions that did not fall within notice-and-comment rulemaking power).
317. See Barnhart, 535 US at 220-21. Justice Breyer also has stated that procedural formality is not a sufficient condition for Chevron deference.
318. See National Cable & Telecommunications Association v Brand X Internet Services, 545 US 967, 1003-1005 (2005) (Breyer concurring).
319. 535 US 212 (2002).
320. Id at 222. The Court subsequently held that "inconsistency is not a basis for declining to analyze the agency's interpretation under the Chevron framework." National Cable & Telecommunications Association, 545 US at 981.
321. See generally Sunstein, 92 Va L Rev 187 (cited in note 166) (examining the legal developments behind Step Zero, the threshold question of when a Chevron analysis is warranted).
322. The phrase is originally from Merrill and Hickman, 89 Georgetown L J at 873 (cited in note 161).
323. See Jacob E. Gersen and Adrian Vermeule, Chevron as a Voting Rule, 116 Yale L J 676, 688-690(2007).
324. Lisa Schultz Bressman, Chevron's Mistake, 58 Duke L J 549, 554 (2009).
325. Consider O'Connell, 94 Va L Rev at 943-951 (cited in note 10);
326. Gersen and O'Connell, 156 U Pa L Rev at 929 (cited in note 10).
327. See generally Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 NYU L Rev 461 (2003) (arguing for a more direct focus on agency arbitrariness in analyzing the legitimacy of agency actions).
328. At least one court arguably has adopted this reasoning, in part. See In re Vioxx Products Liability Litigation, 501 F Supp 2d 776, 788 (ED La 2007) (finding that the preamble to a final rule "lack[ed] the 'power to persuade'" in part because the preamble was "inserted at the eleventh hour").
329. Bressman, 58 Duke L J at 604 (cited in note 174).
330. See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv L Rev 1511, 1542 (1992) (commending the ability of a special commission to make necessary military base closings when Congress had been unable to act due to political pressures).
331. Consider Stephenson, 120 Harv L Rev at 530 (cited in note 42) (examining how agencies often trade off substantive accuracy and procedural depth).
332. For an overview of hard look review, see Seidenfeld, 73 Tex L Rev at 128-129 (cited in note 161).
333. 5 USC § 706(2)(A).
334. See Motor Vehicle Manufacturers Association v State Farm Mutual Auto Insurance Co, 463 US 29, 43 (1983) (citations omitted). For an overview of procedural hard look,
335. see M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U Chi L Rev 1383, 1429 (2004) (discussing the depth and rigor with which courts choose to review the record supporting the agency's actions).
336. See also Association of Data Processing Service Organizations, lnc v Board of Governors of the Federal Reserve System, 745 F2d 677, 696-697 (DC Cir 1984).
337. Consider Bonnichsen, 217 F Supp 2d at 1125 (noting initially an agency's decision to take "advantage of a brief congressional recess" and finding, without connecting the timing element, the policy outcomes arbitrary and capricious);
338. California Department of Health Services v Babbitt, 46 F Supp 2d 13, 15 (DDC 1999) (noting the issuance of agency policy in the "waning hours of the [George H.W.] Bush Administration").
339. See Magill, 71 U Chi L Rev at 1428-1429 (cited in note 183).
340. Courts cannot impose additional procedural requirements on agencies beyond those mandated by statute or the Constitution. See Vermont Yankee Nuclear Power Corp v NRDC, 435 US 519, 543-548 (1978) (holding that the Court cannot overturn a rulemaking proceeding on the basis of the procedural devices used so long as the agency employed the statutorily mandated minimal procedures).
341. See Magill, 71 U Chi L Rev at 1431 (cited in note 183) ("[Mead] structures scope-ofreview doctrine systematically by telling all agencies that there is a link between the policymaking form chosen and the standard of review applied.").
342. See SEC v Chenery Corp, 332 US 194, 202 (1947) ("In performing its important functions ... an administrative agency must be equipped to act either by general rule or by individual order.");
343. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L J 952, 1000-01 (2007) (explaining that an agency generally has broad power to decide by which procedural format it will choose to implement a statutory grant of power).
344. See, for example, Massachusetts v EPA, 549 US 497, 534-35 (2007);
345. Telecommunications Research and Action Center v FCC, 750 F2d 70, 79-80 (DC Cir 1989);
346. Forest Guardians v Babbitt, 164 F3d 1261, 1274 (10th Cir 1998);
347. Oil, Chemical and Atomic Workers International Union v Zegeer, 768 F2d 1480, 1481 (DC Cir 1985).
348. See Richard J. Pierce, Jr, Judicial Review of Agency Actions in a Period of Diminbhing Agency Resources, 49 Admin L Rev 61, 90, 93 (1997) (arguing that courts should not excuse agency delays based on scarce resources-rather such a problem requires a legislative solution, as it is a legislatively generated problem).
349. For example, "major" rulemakings are those with more than a $100 million impact on the economy or other similar adverse effects See 5 USC § 804. Rulemakings may also be labeled as significant actions in the Unified Agenda without qualifying as major rules See Data Appendix.
350. See Biber, 60 Admin L Rev at 16-30 (cited in note 39);
351. Cass R. Sunstein, Reviewing Agency Inaction after Heckler v. Chaney, 52 U Chi L Rev at 682 (cited in note 27).
352. See also Pierce, 49 Admin L Rev at 72-75 (cited in note 190) (discussing how diminished agency resources impact the timeliness of administrative decisions);
353. Gregory L. Ogden, Reducing Administrative Delay: Timeliness Standards, Judicial Review of Agency Procedures, Procedural Reform, and Legislative Oversight, 4 U Dayton L Rev 71, 73-74 (1979) (examining requirements for timely action in administrative law, and the various procedural mechanisms that affect the timeliness of agency actions).
354. See generally Biber, 60 Admin L Rev 1 (cited in note 39).
355. Agencies, however, also create delay when they wait to release a decision. Imagine an agency makes a decision on Monday. Now, the agency could wait until Friday or longer to release it. If the agency provides the decision to the repository on Monday, it could be released randomly on Tuesday.
356. See Pierce, 47 Admin L Rev at 72-75 (cited in note 190).
357. But see Gersen and O'Connell, 156 U Pa L Rev at 971-977 (cited in note 10) (discussing whether judicial and congressional remedies for administrative delay may produce negative side effects on administrative law).
358. OIRA review has a similar effect. By requiring approval before an agency can issue a NPRM or final rule, OIRA review creates a risk that an institution other than the agency will manipulate timing to serve its own ends-here, the president's
359. Consider Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L J 399, 425 (2001).
360. 5 USC § 553(b)(3).
361. See Gersen and Posner, 121 Harv L Rev at 554 (cited in note 10) (examining how timing rules can increase the costs of secret or manipulative legislative action).
362. As explained in note 64, the Unified Agenda is a primary source of rulemaking activity. The GAO keeps a similar database on completed rules under the Congressional Review Act using information reported by agencies See 5 USC § 801(a). The Regulatory Information Service Center also compiles counts of agency rules Counts of rulemaking activity differ by government source.
363. See Croley, Regulation and Public Interesb at 102-17 (cited in note 36) (explaining that there is no single source collecting comprehensive data on rulemaking and that each source defines and classifies rules in different ways). Although the primary source of information on agency rules, the Unified Agenda data have some disadvantages including that individual agencies submit the data on their activities and that the reports miss many complexities of rulemaking (for instance, it is not possible to tell easily whether a rule is regulatory or deregulatory in nature).
364. See O'Connell, 94 Va L Rev at 927-929 (cited in note 10) (discussing the limitations of this database but maintaining that it still provides an important big-picture perspective on rulemaking activities).
365. Each of these agencies is headed by a Senate-confirmed appointee. O'Connell, 94 Va L Rev at 984 (cited in note 10). Except for the IRS after 1998, the appointee serves at the will of the president and can be fired for any reason.
366. Id. The IRS Restructuring and Reform Act of 1998 set a five-year term of office for the IRS commissioner, which applied to the leader at the time as well, Charles Rossotti.
367. Id. The IRS is coded as an executive agency because most of the data here involve action prior to 1998 and because the IRS is often treated as an executive agency.
368. All of these agencies are led by appointees who serve fixed terms and typically can be removed by the president only for cause. Id. The Social Security Administration became an independent agency under the Social Security Independence and Program Improvements Act of 1994.
369. Id at 984-995 (cited in note 10).