Deregulation through nonenforcement

New York University Law Review

Volumn 85, Issue 3, 2010, Pages 795-828

  Deacon, Daniel T ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 77956721373     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (242)

1. See U.S. CONST. art. II, § 3 (granting President authority to recommend to Congress "such Measures as he shall judge necessary and expedient"); U.S. CONST. art. I, § 7 cl. 1 (establishing veto power).
2. Compare, e.g., Harold Hongju Koh, Can the President Be Torturer in Chief?, 81 IND. L.J. 1145, 1158-59 (2006) (arguing for narrowly circumscribed role of President over foreign affairs and war).
3. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 174-75 (1996) (arguing for flexible understanding of President's constitutional power to initiate and conduct war).
4. Compare, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 568-70 (1994) (defending "unitary executive" theory giving President control over all administrative agencies).
5. Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 703-05 (2007) (arguing that President is often limited to oversight role and not vested with authority to decide particular matters).
6. See infra note 164 (citing literature arguing for more searching review of decisions not to enforce).
7. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383, 1426-31, 1435-37 (2004) (explaining how courts can influence agency choice of policymaking form by expanding or limiting availability and scope of judicial review).
8. Cf. JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 151-67 (1990) (arguing that stringent judicial review of notice-and-comment rulemaking contributed to National Highway Traffic Safety Administration's (NHTSA) shift from rulemaking to recall).
9. Since agency rules have the force of law, they naturally extend into the next administration, which cannot change them without complying with applicable procedures. On the related issue of regulatory "ossification," see infra note 187 and accompanying text.
10. One assumption I do not make is that deregulation is always misguided or that regulation is an unalloyed good. If we are to adopt cost-benefit analysis as our guide, it is likely that certain areas suffer from over-regulation and others from under-regulation. See RICHARD L. REVESZ & MICHAEL A. LIVERMORE, RETAKING RATIONALITY: HOW COST-BENEFIT ANALYSIS CAN BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH 155 (2008) ("The decision not to regulate can be as costly as the decision to regulate too much. Efficient regulations deliver large benefits, and counteract important failures of the unregulated market.").
11. See, e.g., Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653, 666-69 (1985) (arguing that complete abandonment of review of agency inaction reflects improper privileging of common law private rights over public rights created by statute).
12. See, e.g., Mary M. Cheh, When Congress Commands a Thing To Be Done: An Essay on Marbury v. Madison, Executive Inaction, and the Duty of the Courts to Enforce the Law, 72 GEO. WASH. L. REV. 253, 285-86 (2003) (arguing that executive nonenforcement violates "direct command from Congress," and courts must intervene).
13. Ruth Colker, Administrative Prosecutorial Indiscretion, 63 TUL. L. REV. 877, 882 (1989) (arguing that decisions not to enforce "can seriously undermine Congress' statutory mandate").
14. Two other authors have recently dealt with the presumption of nonreviewability and review of agency inaction more generally. Eric Biber offers a limited defense of the Chaney presumption - nonreviewability of refusals to enforce - rooted in resource-allocation concerns. Eric Biber, Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 VA. ENVTL. L.J. 461, 485-86 (2008).
15. Lisa Schultz Bressman critiques Chaney by reviving the concern over executive "arbitrariness." Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657, 1659-60 (2004).
16. She assumes, however, that the Chaney rule is supported by accountability considerations, an assumption which I critique. See infra notes 151-63 and accompanying text (arguing that this assumption overlooks fact that executive can act in more, or less, accountable ways).
17. See Antonin Scalia, The Role of the Judiciary in Deregulation, 55 ANTITRUST L.J. 191, 195-96 (1986) ("Many of the decisions whether to regulate or deregulate under existing statutes are political decisions⋯. [M]any statutes can go either way, both as a legal ⋯ and ⋯ policy matter. Which way the agency picks typically depends upon how much value it and ⋯ society ⋯ put upon various competing interests.").
18. See infra Part III (noting that executive is more accountable than courts but that executive can act in more, or less, accountable ways).
19. 5 U.S.C. §§ 551-559, 701-706 (2006).
20. HARRY T. EDWARDS & LINDA A. ELLIOT, FEDERAL COURTS STANDARDS OF REVIEW: APPELLATE COURT REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 100 (2007).
21. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (distinguishing different degrees of deference to agency legal interpretations depending on whether "Congress delegated authority to the agency generally to make rules carrying the force of law, and ⋯ [whether] the agency interpretation claiming deference was promulgated in the exercise of that authority").
22. Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 376-79 (1998) (outlining judicial review of factual determinations made in course of agency adjudication).
23. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-44 (1983) (explaining framework for judicial review of agency notice-andcomment rulemaking).
24. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 523-25 (1978) (limiting judicial review of agency choice of procedure).
25. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-17 (1971) (defining scope of review over informal agency action).
26. This forms the backbone of what has been called the "traditional model" of judicial review of agency action. See Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1675 (1975) (explaining that "[t]he traditional model of administrative law ⋯ conceives of the agency as a mere transmission belt for implementing legislative directives," and that judicial review "is directed toward keeping the agency within the directives which Congress has issued").
27. This language is derived from the Administrative Procedure Act (APA). See 5 U.S.C. § 706 (2006).
28. The question posed by this second form of review is not so much whether the agency has acted contrary to the authorizing statute, but whether it has violated other important norms - for example, by failing to engage in reasoned decisionmaking or to consider relevant factors. As the Supreme Court stated in its main decision defining the arbitrary and capricious standard in the context of agency rulemaking: Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. State Farm, 463 U.S. at 43.
29. 5 U.S.C. § 706.
30. See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1265 (1986) ("The APA is, in essence, a highly conventional lawyer's view of how to tame potentially unruly administrators.")
31. Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437, 440-41 (2003) (arguing that APA "reflected an uneasy accommodation of the traditional model of administrative law" and expansive view of agency power held by New Deal reformers).
32. 5 U.S.C. § 702 (emphasis added).
33. Id. § 551(13).
34. Id. § 706.
35. See supra note 19 and accompanying text (describing APA as means of taming agency discretion).
36. 5 U.S.C. § 701(a)(2).
37. See Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039, 1050-52 (1997) (explaining how courts and commentators during this period viewed aggressive judicial review of agency action as antidote to agency "capture" by regulated entities).
38. 387 U.S. 136, 140 (1967) (finding that APA "embodies the basic presumption of judicial review" for persons aggrieved by agency action).
39. 401 U.S. 402, 413 (1971); see also Merrill, supra note 25, at 1078-79 (describing Court's narrow approach to "committed to agency discretion" exception during era and "presumption in favor of reviewability").
40. See supra notes 20-24 and accompanying text.
41. For the most part, this Note will not address the issue of standing. As a practical matter, lack of standing may block many potential plaintiffs from asserting claims of agency inaction. For a helpful overview of current standing doctrine concerning agency refusals to act, see Bressman, supra note 9, at 1669-75.
42. 470 U.S. 821 (1985).
43. Id. at 823.
44. Id. at 823-24.
45. Id. at 824 (internal quotation marks omitted).
46. Id.
47. Id. at 824-25.
48. 421 U.S. 560 (1975). In Dunlop, the Supreme Court had allowed review of the Secretary of Labor's decision not to bring a civil action to set aside a union election. Id. at 566.
49. Chaney v. Heckler, 718 F.2d 1174, 1184-88 (D.C. Cir. 1983).
50. Id. at 1185-87. The policy statement provided that "[w]here the unapproved use of an approved new drug becomes widespread or endangers the public health, the Food and Drug Administration is obligated to investigate it thoroughly and to take whatever action is warranted to protect the public." Id. at 1186 (quoting 37 Fed. Reg. 16,504 (1972)).
51. Id. at 1189-91.
52. Chaney, 470 U.S. at 831.
53. Id.
54. Id. at 831-32.
55. Id.
56. Id. at 832
57. Id. Some scholars have criticized the Court's stated reasoning.
58. See, e.g., Cheh, supra note 9, at 280-83 (critiquing Cheney's three arguments and contending that there is no
59. Chaney, 470 U.S. at 832-33.
60. The Court was careful to state that it was not deciding these questions but merely
61. See id. at 833 n.4 ("[W]e express no opinion on whether such decisions would be unreviewable ⋯ .").
62. Id.
63. Id. (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)).
64. Id. at 838 (citing Johnson v. Robison, 415 U.S. 361, 366 (1974);
65. Yick Wo v. Hopkins, 118 U.S. 356, 372-74 (1886)).
66. See Ashutosh Bhagwat, Three-Branch Monte, 72 NOTRE DAME L. REV. 157, 164
67. Cf. Hopkins, 118 U.S. at 373-74 (1886) (establishing that racially discriminatory
68. See, e.g., Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1, 3-5 (D.C. Cir. 1987) (holding
69. see also Bhagwat, supra note 51, at 162 (chronicling
70. 549 U.S. 497, 527-28 (2007) (holding that agency refusals to promulgate rules are
71. Chaney, 470 U.S. at 833 n.4 (internal quotation marks omitted).
72. 480 F.2d 1159 (D.C. Cir. 1973).
73. Id. at 1162.
74. Id. at 1161.
75. Id. at 1161-63.
76. See, e.g., Am. Disabled for Attendant Programs Today v. HUD, 170 F.3d 381 (3d Cir.
77. See Sunstein, supra note 8, at 678-79 (discussing difficulty of distinguishing between
78. 42 U.S.C. §§ 7401-7671q (2006).
79. Cf. John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233,
80. See Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory
81. See id. at 1279-80 (describing OIRA compilation of "hit lists" solicited from industry
82. See REVESZ & LIVERMORE, supra note 7, at 153-56 (arguing that, with OMB review
83. 463 U.S. 29 (1983).
84. Id. at 41-42
85. see also Merrill, supra note 25, at 1039-40 (describing State Farm as
86. 463 U.S. at 42.
87. See id. at 54-57 (disussing defects in agency's reasoning, including failure to consider
88. See infra note 176 and accompanying text (discussing "hard look" review for agency
89. see RICHARD L. REVESZ, ENVIRONMENTAL LAW AND POLICY 1072-73
90. See Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007) (endorsing limited review of agency
91. Cf. Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance
92. Cf. id. (discussing shift of money into independent expenditures as result of differential
93. See William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 GEO.
94. Emerson H. Tiller & Pablo T. Spiller, Strategic Instruments: Legal Structure and
95. 494 F.3d 1027 (D.C. Cir. 2007).
96. See Crowley Carribean Transp., Inc. v. Peñ a, 37 F.3d 671, 676 (D.C. Cir. 1994) ("[A]n
97. SPECIAL INVESTIGATIONS DIV., MINORITY STAFF OF H. COMM. ON GOV'T REFORM, 109TH CONG., PRESCRIPTION FOR HARM: THE DECLINE IN FDA ENFORCEMENT ACTIVITY
98. Id. at 7.
99. Id. at 8.
100. Id. at 9-10.
101. Id. at 10-12.
102. Id. at 11.
103. Id. at 12-17.
104. Id. at 9. As the report explained, a high recall rate is actually an indicator of lax
105. Letter from Sammie R. Young to Henry A. Waxman, Ranking Minority Member
106. see also Catherine M. Sharkey, The Fraud Caveat to Agency Preemption, 102 NW. U. L. REV. 841, 862 (2008) ("[T]he picture that emerges is one of the FDA pulling back on enforcement, contrary to the recommendations
107. John Solomon & Juliet Eilperin, Bush's EPA Is Pursuing Fewer Polluters: Probes and Prosecutions Have Declined Sharply, WASH. POST, Sept. 30, 2007, at A1.
108. Id.
109. see also Eric Schaeffer, Clearing the Air: Why I Quit Bush's EPA, WASH. MONTHLY, July-Aug. 2002, at 20, 20-21, available at http://www. washingtonmonthly.com/features/2001/0207.schaeffer.html
110. Informal (i.e., nonbinding) agency documents can take many forms. They are often styled as "interpretive rules," which, under the APA, are exempted from notice-and comment procedures.
111. See John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 893 (2004) (noting agencies promulgate "interpretive rules" and "general statements of policy," exempt from notice-and-comment rulemaking, through "circulars, advice letters, guidance documents, staff manuals and the like").
112. See Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) ("[C]abining mof an agency's prosecutorial discretion can in fact rise to the level of a substantive, legislative rule."). For a discussion of courts' efforts to distinguish between legislative and nonlegislative rules, see Manning, supra note 89, at 917-27.
113. Antitrust law may be sui generis in that much policy innovation in the area occurs through enforcement practices and judicial interpretation as opposed to the more formal means of agency rulemaking. This may be attributed, in part, to the unusually open-ended nature of the antitrust statutes and to their development through common law decisionmaking.
114. See Douglas H. Ginsburg, The Appropriate Role of the Antitrust Enforcement Agencies, 9 CARDOZO L. REV. 1277, 1277-78 (1988) (describing enforcement role of agencies in developing antitrust policy).
115. See ANDREW I. GAVIL ET AL., ANTITRUST LAW IN PERSPECTIVE 66-67 (2d ed. 2008) (discussing emergence of "Chicago School" of antitrust analysis).
116. See Eleanor M. Fox & Lawrence A. Sullivan, Antitrust - Retrospective and Prospective: Where Are We Coming From? Where Are We Going?, 62 N.Y.U. L. REV. 936, 944-47 (1987) (describing views of Reagan antitrust officials, which included "chang[ing] both the vocabulary and the central paradigm of antitrust").
117. See id. at 947 ("The enforcement record of the Reagan Administration directly corresponds with its repeated assertion that virtually all business activity except horizontal price fixing is good for the American consumer and good for the economy."). My point is not to critique the Reagan approach to antitrust law. Rather, I am simply using this example to illustrate how wide-ranging policy change is possible through enforcement practices.
118. See id. at 948 (noting that despite rise in merger activity and total value of mergers, "the Department of Justice challenged only twenty-eight mergers").
119. See Stephen Calkins, Perspectives on State and Federal Antitrust Enforcement, 53 DUKE L.J. 673, 677 (2003) ("[D]uring the Reagan years, states perceived that the federal government was slacking in antitrust enforcement ⋯ [and] became a force with which to be reckoned.").
120. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685, 697-703. Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat. 1676, 1685. The Clean Air Act in its current form is codified at 42 U.S.C. §§ 7401-7671 (2006). For a general discussion of New Source Review (NSR)
121. see REVESZ, supra note 71, at 403-05.
122. Jonathan Remy Nash & Richard L. Revesz, Grandfathering and Environmental Regulation: The Law and Economics of New Source Review, 101 NW. U. L. REV. 1677, 1681-84 (2007).
123. Id. at 1678.
124. See 42 U.S.C. § 7411(a)(2) (2006) (including within definition of "new source" any stationary source that commenced " modification").
125. see also Nash & Revesz, supra note 98, at 1681-83 (discussing "modification" and disparity of regulation between new and old sources).
126. Nash & Revesz, supra note 98, at 1684-1705 (describing controversy over EPA's definition of "modification" under Clean Air Act).
127. 40 C.F.R. § 52.21(b)(2) (2009).
128. see REVESZ, supra note 71, at 404 (describing 1980 regulations exempting certain minor modifications from NSR).
129. See, e.g., Wisc. Elec. Power Co. v. Reilly, 893 F.2d 901, 910 (7th Cir. 1990) (describing EPA's "case-by-case" approach to determining whether proposed work is "routine").
130. Nash & Revesz, supra note 98, at 1702-04.
131. Prevention of Significant Deterioration and Non-attainment New Source Review: Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion, 68 Fed. Reg. 61,248, 61,252 (Oct. 27, 2003) (to be codified at 40 C.F.R. pts. 51 & 52). The twenty percent rule only applies to replacement of an existing component with a component that is identical to, or serves the same purpose as, the existing component and that does not alter the basic design of the unit. Id.
132. Joel A. Mintz, "Treading Water": A Preliminary Assessment of EPA Enforcement During the Bush II Administration, 34 ENVTL. L. REP. 10,912, 10,918 (2004), available at http://www.elr.info/articles/vol34/34.10912.pdf.
133. Id. at 10,917-18.
134. Id.
135. Id.
136. New York v. EPA, 443 F.3d 880, 883 (D.C. Cir. 2006).
137. Id. at 884-85 (emphasis added).
138. Id. at 890.
139. See Mintz, supra note 106, at 10,919.
140. See Nash & Revesz, supra note 98, at 1678-79 ("[T]he EPA has indicated that in any event it may apply the safe harbor in its case-by-case analysis of whether to bring enforcement actions, thus giving it de facto effect.").
141. Indeed, it appears that the Obama Administration has already stepped up enforcement against power plants.
142. See Joe Koncelik, In a Major Reversal, Obama Administration Restarts NSR Enforcement Initiative, http://www.ohioenvironmentallawblog.com/2009/03/ articles/air/in-a-major-reversal-obama-administration-restarts-nsr-enforcement- initiative/(Mar. 6, 2009) (describing EPA press release announcing administration's plans for new NSR initiative).
143. 494 F.3d 1027 (D.C. Cir. 2007).
144. Id. at 1028.
145. 42 U.S.C. §§ 7401-7671q (2006).
146. 42 U.S.C. §§ 9601-9675 (2006). CERCLA (often referred to as "Superfund") imposes civil liability on persons or entities responsible for land contamination by hazardous waste.
147. See id. § 9607 (providing CERCLA liabilities).
148. 42 U.S.C. §§ 11001-11050 (2006). EPCRA, among other things, imposes reporting requirements on facilities storing hazardous substances. REVESZ, supra note 71, at 880-81.
149. See also Benjamin R. Merrill, Note, What Stinks ⋯ The Animal Feeding Operations Consent Agreement and Final Order or EPA Involvement in the Area?, 13 DRAKE J. AGRIC. L. 285, 289-92 (2008) (describing laws potentially applicable to animal feeding operations). These pollutants are largely the result of the sometimes gargantuan amounts of manure produced at.animal feeding operation (AFO) sites, which cause various problems for residents living near AFOs, including health impairment and decreased property value. Ass'n of Irritated Residents, 494 F.3d at 1028.
150. Ass'n of Irritated Residents, 494 F.3d at 1029.
151. Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 4958, 4958 (Jan. 31, 2005).
152. Ass'n of Irritated Residents, 494 F.3d at 1029.
153. Id.
154. Id.
155. Id. at 1031.
156. Id. at 1033.
157. Id. at 1031-32 (concluding EPA's judgment to pursue consent agreements "ar[ose] from considerations of resource allocation, agency priorities, and costs of alternatives ⋯ well within the agency's expertise and discretion").
158. Id. at 1032.
159. Id. at 1033.
160. Id. at 1037 (Rogers, J., dissenting). By "statutory duties," Judge Rogers was referring
161. Id.
162. See supra notes 123-24 and accompanying text.
163. For the enforcement mechanisms available under the Clean Air Act
164. see 42 U.S.C. § 7413(a) (2006), which authorizes the Administrator to bring civil enforcement actions for
165. see REVESZ, supra note 71, at 1031-88, which discusses civil penalties, voluntary audits
166. This is because consent decrees, as final judgments, are afforded res judicata effect.
167. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378-79 (1992) (explaining that
168. See infra note 162 and accompanying text (explaining accountability- enforcing
169. As Justice Scalia has said, "[i]f Congress is to delegate broadly, as modern times are
170. See infra notes 149-51 and accompanying text.
171. This concern with unaccountable bodies reviewing acts of those who have been
172. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2332 (2001)
173. See supra notes 8-11 and accompanying text (describing and critiquing current
174. See, e.g., JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC
175. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 58-70 (1995) (defending unitary executive
176. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 2-3 (1994) (defending unitary
177. Bressman, supra note 139, at 485.
178. See Bressman, supra note 9, at 1659 ("The accountability theory responds to a persistent
179. See Bressman, supra note 139, at 490 (arguing that presidential control model "purports
180. See Kagan, supra note 140, at 2277-2319 (chronicling how presidential power over
181. cf. Cynthia R. Farina, The "Chief Executive" and the Quiet Constitutional Revolution, 49 ADMIN. L. REV. 179, 181-82 (1997) (arguing
182. See BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 81 (6th ed. 2006) (noting that independent agencies fell out of favor
183. Kagan, supra note 140, at 2274 n.104 (describing "transfer of power from independent to executive branch agencies").
184. 467 U.S. 837, 865 (1984).
185. See Cass R. Sunstein, Beyond Marbury: The Executive's Power To Say What the Law
186. Heckler v. Chaney, 470 U.S. 821, 831 (1985).
187. Cf. Bagley & Revesz, supra note 64, at 1261 (describing promise of OMB review to
188. See Bressman, supra note 9, at 1678-81 (arguing that presumption derives from
189. See supra note 140 and accompanying text.
190. See supra Part I.C (explaining how varying levels of review can affect processes
191. See MASHAW & HARFST, supra note 5 (exploring NHTSA's shift to policymaking
192. Magill, supra note 5, at 1426-42. See generally Tiller & Spiller, supra note 75 (providing
193. See Cameron Holley, Facilitating Monitoring, Subverting Self-Interest and Limiting
194. Kagan, supra note 140, at 2331-32
195. Id. at 2332.
196. On the role of Congress in overseeing the administrative state, see generally Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61 (2006).
197. See supra Part II.B (discussing NSR as example of informal enforcement).
198. See supra Part II.C (discussing industry-wide consent agreements).
199. See Stewart, supra note 15, at 1683 (arguing that agency consideration of various interests promotes public interest).
200. Such agreements are more binding than administrative rules due to their preclusive effects in future litigation. Since consent decrees are final judgments by a court, they bar future suits by the government over matters contained therein. See supra note 135 (discussing binding nature of consent decrees).
201. See, e.g., Bressman, supra note 9, at 1702 (arguing that reviewability under "arbitrariness" standard should be norm for agency refusals to enforce).
202. Cheh, supra note 9, at 285-88 (recognizing importance of judicial review of agency inaction and arguing that Marbury duty "to say what the law is" requires courts to review nonenforcement decisions).
203. Colker, supra note 9, at 910-12 (arguing for review of individual prosecutorial decisions not to enforce in some circumstances).
204. See supra notes 8-9 and accompanying text.
205. These include, for example, the likelihood of prevailing against a particular party, the fear of making "bad law," and the severity of the violation. See Sunstein, supra note 8, at 672-73, 682-83 (arguing against review of agency nonenforcement decisions under "generalized arbitrariness" standard because of insurmountable practical problems).
206. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193, 1269-70 (1982) (footnotes omitted).
207. For example, it is difficult to see how a generalized arbitrary and capricious review of agency enforcement decisions would work in practice; it would seem nearly impossible for agencies to articulate a reason not to enforce that could properly be evaluated by a court, or for courts to weigh the costs and benefits of agency inaction.
208. See supra note 164 and accompanying text (citing advocates of judicial review of agency nonenforcement). A second possibility is placing an obligation on agencies to explain their enforcement decisions and then reviewing those decisions only if the agency response so lacks reason that it raises alarm bells. The risk, of course, is that agencies will almost always be able to explain away individual decisions not to enforce by reference to benign considerations. Finally, Ashutosh Bhagwat suggests requiring agencies to state their enforcement policies through rulemaking; courts would then review individual enforcement decisions against the agency's stated policy. Bhagwat, supra note 51, at 183-84.
209. This is an interesting suggestion, but it is unclear, under the APA and existing precedent, from where such an obligation would derive. See id. at 183 (conceding that requirement would be "an admittedly significant departure from existing practice"). Additionally, and importantly, all of the suggestions above assume there will often be plaintiffs with proper standing, a precarious assumption under current law. See supra note 29 (noting that standing may be obstacle to judicial review to nonenforcement).
210. 533 U.S. 218, 226-27 (2001). Mead dealt with whether tariff classification rulings by the U.S. Customs Service are entitled to Chevron deference, a question the Court answered in the negative. Id. at 221. Mead has spawned a considerable amount of literature on when agencies should be able to invoke the Chevron regime.
211. See, e.g., Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-rules and Meta-standards, 54 ADMIN. L. REV. 807, 809 (2002) (arguing Mead should be replaced by more rule-like test).
212. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191-93 (2006) (arguing that test for whether agency interpretation qualifies for Chevron deference should be substantially simplified).
213. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25 (1978).
214. See Bressman, supra note 139, at 538-41 (discussing how Mead promotes administrative law values by incentivizing certain procedures over others).
215. See supra Part I.C (exploring consequences of regulatory asymmetry).
216. See supra note 164 and accompanying text (cataloguing proposals for direct review of agency nonenforcement decisions).
217. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 527 (2007) (reiterating Chaney's holding that agency nonenforcement decisions are not subject to judicial review).
218. See Scalia, supra note 10, at 192 ("The inherited view, especially in the D.C. Circuit, I think, is that an agency change in position on a policy matter is a 'danger signal,' which provokes heightened judicial scrutiny. One must ask why that should be so.").
219. See, e.g., Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 456-57 (2d Cir. 2007) (explaining that agency departure from precedent must be reasoned and must provide explanation for why new policy is as good as or better than old one), rev'd, 129 S. Ct. 1800, 1812-15 (2009) (finding that FCC had sufficient reason for departing from prior policy). The lower courts have been somewhat coy about the standards for judging agency policy changes. For example, the Second Circuit explained that "[w]hile an agency is not locked into the first interpretation of a statute it embraces, it cannot simply adopt inconsistent positions without presenting some reasoned analysis." Huntington Hosp. v. Thompson, 319 F.3d 74, 79 (2d Cir. 2003) (internal quotation marks omitted).
220. see also N.Y. Council, Ass'n of Civilian Technicians, 757 F.2d at 508 ("[A] flip-flop must be accompanied by a reasoned explanation of why the new rule effectuates the statute as well as or better than the old rule.").
221. Mr. Sprout, Inc. v. United States, 8 F.3d 118, 129 (2d Cir. 1993) (holding that, when agency shifts interpretations, it must provide "a reasoned analysis that justifies its change of interpretation so as to permit judicial review of its new policies") (internal quotation marks omitted). The D.C. Circuit has likewise stated that its "review is heightened somewhat by the fact that the ⋯ action ⋯ was a reversal of a prior position." NAACP v. FCC, 682 F.2d 993, 998 (D.C. Cir. 1982).
222. 129 S. Ct. 1800, 1809 (2009). Specifically, the case involved the application of the statutory "indecency ban"-prohibiting "'utter[ing] any obscene, indecent, or profane language by means of radio communication'"-to the single use of a "nonliteral expletive." Id. at 1806-07 (quoting 18 U.S.C. § 1464 (2006)).
223. The Court's recognition of the relevance of the State Farm decision, which addressed rule recission, demonstrates the applicability of the analysis to deregulation. See id. at 1810-11 & n.2 (noting that State Farm involved policy change, but denying that it subjected such change to more searching review).
224. Id. at 1810-11.
225. Id. at 1810.
226. Id. at 1811.
227. Id. at 1822 (Kennedy, J., concurring). Curiously, although Justice Kennedy joined all major sections of Scalia's majority opinion, he did not join Part III.E, which responded to various dissents. Id.; see also id. at 1815-16 (majority opinion) (addressing Justices Breyer and Souter's dissent).
228. Id. at 1823 (Kennedy, J., concurring).
229. Id. Justice Scalia also appeared to endorse this idea. See id. at 1811 (majority opinion) (noting that when "new policy rests upon factual findings that contradict those which underlay its prior policy," ignoring
230. See Scott A. Keller, Depoliticizing Judicial Review of Agency Rulemaking, 84 WASH. L. REV. 419, 457 (2009) (suggesting that lower courts could seize on parts of Kennedy's opinion to impose more searching review and rejecting this reading of Kennedy's opinion).
231. See supra Part I.C (explaining that regulatory assymetry created by Chaney rule incentivizes agencies to act through means that avoid judicial review).
232. See, e.g., Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1387-96, 1400-03, 1410-26 (1992) (cataloguing phenomenon of regulatory ossification and placing substantial blame on analytical and substantive requirements of judicial review); Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 60-62 (1995) (discussing problem of ossification).
233. See generally Richard J. Pierce, Jr., The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 ADMIN. L. REV. 7 (1991) (providing case study of possible negative effects of aggressive judicial review of rulemaking).
234. A similar concern attaches to agency guidance documents or manuals, whether or not they are enforcement-related. See McGarity, supra note 187, at 1393 (explaining how burdensome notice-and-comment procedures have led agencies to engage in "nonrule rulemaking").
235. This is the course suggested by Keller, supra note 185, at 469-81 (arguing that courts should use "rational basis with bite standard").
236. Recent presidential administrations, and especially the Clinton Administration, have in fact opted to act through rulemaking when it is in their interest to do so. See Kagan, supra note 140, at 2281-2303 (describing Clinton-era regulatory initiatives, including rulemaking regarding tobacco and paid leave).
237. Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965, 965-67 (1997) (presenting Clinton's rulemaking agenda).
238. See supra note 6 and accompanying text (describing difficulty of changing regulations made through notice-and-comment rulemaking).
239. This is perhaps most clearly seen in the phenomenon of the "midnight regulation," passed at the end of an outgoing administration's term in office, which may or may not be quickly repealed by the incoming administration. See generally Jason M. Loring & Liam R. Roth, After Midnight: The Durability of the "Midnight" Regulations Passed by the Two Previous Outgoing Administrations, 40 WAKE FOREST L. REV. 1441 (2005) (detailing practice of passing "midnight regulations" and arguing that deregulatory administrations may face difficulty amending or repealing such regulations).
240. See, e.g., Manning, supra note 89, at 893-94 (distinguishing between legislative and nonlegislative rules based on former's ability to bind agency and public).
241. For example, a President with close industry ties may prefer regulation when it is in the interests of industry itself as a way of seeking rents and keeping out competition. Cf. E. Donald Elliot et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 326-38 (1985) (explaining how certain industries demanded federal environmental regulation to advance industry interests by avoiding stringent or inconsistent state regulation).
242. See supra notes 191-95 and accompanying text (describing benefits of acting through rulemaking).