Academic journal article The Yale Law Journal

Administrative Forbearance

Academic journal article The Yale Law Journal

Administrative Forbearance

Article excerpt

ARTICLE CONTENTS  INTRODUCTION I.   BACKGROUND      A. Old Statutes, "Hyper"-Statutes, and Executive Policymaking      B. A Way Out? Agency Forbearance Authority      C. The Need for a Functional Analysis II.  THE USES OF FORBEARANCE      A. Addressing Changed Circumstances      B. Statutory Fit      C. Enabling Regulation      D. Reducing Uncertainty III. FORBEARANCE AS DELEGATION      A. Traditional Justifications for Delegation to Agencies         1. Expertise-Information         2. Flexibility      B. Advantages over Policymaking Through Enforcement         1. The Take Care Clause         2. Visibility         3. Arbitrariness         4. Cost-Benefit Analysis      C. Addressing Concerns         1. Agency Power         2. "Unmaking" Deals         3. Congressional Shirking and Accountability         4. Capture IV.  APPLICATIONS      A. The Promise (and Limits) of Forbearance         1. When Should Congress Give Agencies Forbearance Authority?         2. The Limits of Forbearance      B. Examples         1. The Voting Rights Act         2. The EPA and Climate Change CONCLUSION 


In 2015, the Federal Communications Commission (FCC) reclassified broadband Internet service providers (ISPs)--companies like Comcast and Verizon-as common carriers under the Communications Act. (1) That decision, heralded by many, (2) automatically subjected such providers to a range of statutory obligations. At the same time, however, the Commission announced it will "forbear from"-render inapplicable-many of these requirements. The Commission can do so because of a provision in the Communications Act, little known outside of communications-law circles, allowing the FCC to formally deprive portions of the Act of their legal force. (3) In other words, the statute expressly allows the Commission to render statutory requirements no longer legally binding.

Delegations to agencies of the power to deprive statutory provisions of legal force and effect--what this Article calls "administrative forbearance authority" (4)--raise a set of questions distinct from those associated with traditional delegations of authority to agencies to fill in the details of a regulatory scheme. What roles does such an authority serve in the hands of an agency? Do the traditional justifications for delegating authority to make law also apply to delegations that allow an agency to relieve regulated parties of their statutory obligations? How does such a power compare to other forms of agency action, such as nonenforcement? Should we have more reason to fear such delegations than we do delegations of the normal sort?

Although the literature has begun to investigate these and other questions, (5) it has yet to offer a full descriptive and normative evaluation of administrative forbearance authority. This Article thus makes two principal contributions to the literature. First, it describes the variety of functions that administrative forbearance serves at the agency level, drawing on the ways the FCC and other agencies have used their forbearance authority. Second, the Article uses this descriptive account to mount a normative case for forbearance as a particular form of delegation and to illuminate the range of circumstances in which it might be used. It thus provides a robust defense of administrative forbearance authority that is firmly grounded in both the realities of administration and administrative-law theory.

The time is ripe for a fuller evaluation of forbearance authority. As many have written, (6) the current age is characterized by legislative gridlock in which agencies face increasing pressure to "tailor" statutes that are out of date, overbroad, or simply unworkable. (7) An expressly delegated power to ease or eliminate statutory requirements, such as that held by the FCC, presents the promise of much-needed regulatory flexibility.

Forbearance authority is also potentially more legitimate than other tools. …

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