Academic journal article Duke Law Journal

Rulemaking Inaction and the Failure of Administrative Law

Academic journal article Duke Law Journal

Rulemaking Inaction and the Failure of Administrative Law

Article excerpt


The Trump administration may be the first presidency to go four years without promulgating new significant regulations to protect people and the environment. Although administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, those protections evaporate when an agency rejects a rulemaking petition, fails to answer a petition for years, or fails to work on pending regulatory protections. In effect, the courts have outsourced agency accountability for rulemaking inaction to political oversight, but as a defense of the interests of regulatory beneficiaries, political accountability is the "Maginot Line" of oversight. Despite the difficulty of judging an agency's claim that it has higher priorities or that it needs more time to make a decision, judges should require more detailed explanations. Although less trusting judicial review is not without its problems, the current approach of abject deference to agency inaction ignores Congress' commitment to protect people and the environment as specified in an agency's mandate.


  I. The Deregulation Game
 II. The Administrative Law of Deregulation
     A. Revocation
     B. Modification
     C. Inaction
        1. Rulemaking Petitions
        2. Denial
        3. No Response
        4. A Slow Walk
III. Enhanced Accountability
     A. Legal Civics
     B. "The Unbearable Lightness" of Political
     C. Less Passive Judicial Review
 IV. Conclusion


Presidents can pursue deregulation using three strategies: the revocation of rules, the modification of them, or rulemaking inaction. Inaction involves refusing to start any new rules to protect the public or the environment or to delay regulatory rules already started to the point of a crawl. While these steps do remove or modify existing rules, they are still deregulatory. Inaction, despite the name, is deregulatory because, as the Article will develop, Congress creates regulatory agencies with the expectation that they will use their delegated authority to protect people and the environment in the manner that legislation indicates. When an administration engages in rulemaking inaction, it fails this expectation, making its action deregulatory. Moreover, the deregulatory impact is more than four (or eight) years when you consider it will take a proregulatory administration years to adopt a regulation after it takes office. Fans of the television show Parks and Recreation will recognize this as the "Ron Swanson" strategy. (1)

President Trump is unique among presidents in channeling Ron Swanson. Other administrations have employed rulemaking inaction as a deregulatory strategy. In the Reagan administration, for example, the Occupational Safety and Health Administration ("OSHA") issued no new health standards for five years. (2) It is probably not coincidental that the two administrators of OSHA during that period were both extremely hostile to the agency's mission. (3) But the Trump administration is the first to employ this tactic on a government-wide basis. President Trump's executive order requiring agencies to eliminate two rules for each new regulatory rule they promulgate has stopped the entire government from adopting regulatory rules. (4) In 2017, the regulatory agenda indicated that agencies took sixty-seven deregulatory actions and only three regulatory actions. (5) There is no doubt that agencies in the Trump administration can defend their lack of interest in new protective regulation as simply a matter of priority setting--they are too busy deregulating--but the question remains whether the courts should accept this claim as existing administrative law appears to require them to do.

Among the three deregulatory strategies, administrative law provides the weakest check-an almost nonexistent check in fact--on rulemaking inaction as a strategy of deregulation as compared to revocation and modification. …

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