Administrative Forbearance
abstract. This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Article calls “administrative forbearance authority.” Although legal scholars have recently noted the rise of administrative forbearance authority, they have largely ignored how exactly such a power might operate in the hands of the agency and the various governance functions it performs. Without such knowledge, the case for administrative forbearance authority is necessarily incomplete.
This Article thus makes two principal contributions to the literature. First, it describes the variety of functions that administrative forbearance authority serves at the agency level, drawing on the previously unexplored histories of various agencies’ experience with such authority. Second, it uses the descriptive account both to develop a fuller normative and constitutional case for administrative forbearance authority and to illuminate the various circumstances in which forbearance can be beneficially employed as a policy tool.
To defenders of delegation generally, this Article posits that there is no special reason to be wary of administrative forbearance authority and that forbearance can be used as a governance device in previously underappreciated ways. To critics who urge a stronger nondelegation doctrine than the one we have today, I argue that there may be reasons to actually support administrative forbearance in a world where delegations of the traditional type are unlikely to go anywhere anytime soon.
author. Climenko Fellow and Lecturer on Law, Harvard Law School. Many thanks to Nick Bagley, Susan Crawford, Dan Epps, Barry Friedman, Jake Gersen, Jacob Goldin, Don Herzog, Sam Issacharoff, David Kamin, Jo Langille, Maggie Lemos, Leah Litman, Todd Rakoff, Ricky Revesz, Matthew Stephenson, Cass Sunstein, and participants in the Climenko Fellows works-in-progress workshop, the NYU School of Law Furman Scholars Seminar, and the Harvard Law School “Becoming a Law Professor” Seminar for valuable guidance and comments. I previously represented telecommunications carriers in some of the proceedings discussed below. All opinions, errors, etc. are my own.
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. Judges and commentators have recently expressed concerns
about different kinds of agency actions—especially discretionary
decisions not to enforce certain applications of federal statutes—that
border on unilateral executive lawmaking.8 An express forbearance authority
avoids many of the criticisms leveled against these other forms of executive
lawmaking: forbearance involves the exercise of a power that Congress
explicitly gave to an agency, and an agency’s exercise of its forbearance
authority triggers procedures that result in more opportunities for judicial
review and public comment than decisions not to enforce a statute. That said, forbearance does raise its own set of normative
issues, which have been thrust to the fore by forbearance-like provisions
contained in high-profile programs such as the No Child Left Behind Act,9
as well as by Mitt Romney’s presidential campaign pledge to dismantle the
Affordable Care Act through executive action.10
For one, the traditional policy justifications for delegating authority to an
administrative agency—most prominently, agencies’ greater expertise and
flexibility vis-à-vis Congress—apply less clearly to administrative
forbearance authority. With “normal” delegations, the typical narrative is that
Congress wants to do this or that but isn’t quite sure how and thus delegates
power to an agency. Among other reasons, we tolerate delegation because the
agency is, under the received view, often in a better position than Congress to
know the precise course to chart and can more easily change direction if
necessary. But with negative delegations, Congress has already set the
requirements and defined to whom (or what) they apply, at least using broad strokes.11
For that reason, the traditional story we tell for “normal” delegations does
not seem, at least at first glance, to apply with full force to
forbearance-like delegations. Scholars have also recently raised questions about the
propriety of forbearance-type delegations. Law professor and historian Philip
Hamburger has called an express agency power to nullify statutory requirements
“astonishing even by administrative standards.”12 Another scholar has written that
conferring negative-lawmaking authority on an agency “amounts to an abdication
of Congress’s core legislative functions.”13
And writing at the Volokh Conspiracy blog, Professor David Post recently penned
that it is “[h]ard for [him] to believe that” such provisions “can pass
constitutional muster; it’s like a repeal process, but one not involving
Congressional action.”14 For some,
agency action formally dispensing with legal requirements simply seems more
“legislative” than other types of agency action. Indeed, a majority of the
Supreme Court came close to endorsing this position in Clinton v. City of New York, which invalidated the Line Item Veto
Act.15
Under this view, forbearance authority is constitutionally suspect either
because it impermissibly delegates power to agencies or because it violates
Article I, Section 7’s bicameralism and presentment requirements.16 Even apart from these formal legal concerns, some have voiced
alarm that forbearance-type delegations are more likely to be used by agencies
in nefarious ways—perhaps to override the will of Congress or to grant
regulatory breaks to powerful groups.17 In an essay noting the rise of what
he called “government by waiver,” for example, Richard Epstein writes that, in
part because of the potential for favoritism created by a broad power in the Executive
to nullify statutory requirements, such authority represents a “particularly
dangerous form of government power.”18 This Article addresses these issues in the following ways.
First, it develops an understanding of the roles played by forbearance
authority, and, based on this descriptive account, reveals that the primary
justifications for delegations to an expert agency apply with full force to
“negative” or forbearance-type delegations. Second, the descriptive account
reveals that forbearance, like the more familiar authority to fill in the
details of statutes, is properly viewed as implementing
(and not overriding) the statute Congress has written, which includes the
delegation itself. Thus, an agency exercising forbearance authority no more
exercises a purely legislative power to “repeal” the law than an agency filling
in the gaps exercises a legislative power to enact law. Finally, in practice,
agencies’ histories with administrative forbearance power do not reveal them to
be behaving in particularly problematic ways. Instead, agencies often use
forbearance authority to address perennial governance problems that Congress
anticipated when it included the delegation in a statute. Of course, the potential for abuse remains, just as it
does for any type of government power. But these histories indicate that
forbearance need not be viewed as a particularly troubling form of delegation. This Article does more than respond defensively to various
critiques of forbearance, however. It also highlights several underappreciated
benefits of forbearance-like delegations, providing a roadmap for policymakers
who are considering when and in what circumstances to include forbearance
provisions. The descriptive account shows that forbearance can be used as a
policy tool in seemingly counterintuitive ways. For example, Congress has used
forbearance as an anticapture device, allowing it to set an initial
proregulatory baseline while permitting the agency some flexibility to depart
downward from that baseline. Similarly, even though forbearance might appear to
be a form of deregulation, forbearance actually can be used in a range of
circumstances to facilitate more socially beneficial regulation than might
otherwise be possible. Forbearance-type delegations also have underappreciated
ancillary benefits for the administrative process. Forbearance may substitute
for other types of agency action, such as agency nonenforcement decisions, that
pose graver normative concerns. In addition, a number of the standard critiques
of delegation apply with less force to forbearance-like authority. Thus, to the
extent forbearance-type delegations can stand in for garden-variety positive
delegations, even critics of delegation generally may have reason to support
them. The argument proceeds in four parts. Part I sets up the
problem. In the current age of congressional gridlock, scholars and politicians
have increasingly turned their attention to the executive branch for potential
solutions. Administrative forbearance is thus a particularly attractive tool at
this point in time. Yet it still is only partially understood. Part II turns to the task of describing the functions that
administrative forbearance serves in the hands of an agency. A forbearance
option can be used to address familiar problems, such as when a statutory
requirement has become unnecessary or counterproductive (the problem of
statutory obsolescence), or when the application of a requirement in a
particular setting does not seem justified in light of the reasons for the
statute (the problem of overinclusiveness or “fit”). But there are also a
number of less obvious ways an agency can use forbearance to pursue beneficial
regulatory ends. Somewhat paradoxically, one such use is to enable regulation: forbearance can be
deployed to selectively regulate in contexts where applying a set of statutory
requirements across the board would be unwise. Part III pivots from the descriptive to the normative. Section
III.A applies the primary policy-based justifications for administrative
delegation to the case of forbearance-type delegations and argues that those
justifications apply with equal force to forbearance authority. Section III.B
then shows that agency action pursuant to forbearance authority is superior to
other forms of agency action, such as statutory nonenforcement, for which it
may substitute. Because enforcement discretion often operates “underground,”
shielded from public view, policymaking through enforcement is vulnerable to
criticism on process grounds: nonenforcement often is not transparent and can
be used to evade the Administrative Procedure Act’s (APA) notice-and-comment
requirements, escape judicial “arbitrariness” review, and limit opportunities
for cost-benefit analysis. By contrast, forbearance decisions typically are
made openly, are immediately appealable to the courts, and are announced in a
form amenable to calculating the relevant costs and benefits. Section III.C then addresses various objections that might be
lodged against administrative forbearance. An important theme of this Section is
that, in many cases, the objections to traditional positive delegations apply
with less force to negative delegations. After all, when it delegates
forbearance authority, Congress is the one responsible for setting the
regulatory default. As I explain, agency deviations from the default often are
easier to monitor and address than agency actions setting regulatory
requirements in the first place. Finally, Part IV considers the promises and limits of
forbearance as a policymaking tool. Section IV.A describes the conditions under
which Congress should include forbearance authority in its statutes and under
which we might be skeptical of forbearance as a normative or policy matter. Section
IV.B then invokes recent regulatory controversies involving the Voting Rights
Act (VRA) and the Clean Air Act to describe how a forbearance authority might
operate in areas in which it currently does not exist. According to many scholars, agencies—and the executive
branch more generally19—are in
a tough spot. The current political climate, marked by congressional gridlock
and extreme partisanship, has hampered legislative policymaking.20
For any number of reasons, Congress increasingly lets “old” statutes that are
out of step with current realities languish on the books.21
In the rare political moments where Congress produces legislation, the
legislation tends to be sprawling and, at least according to some,
ill-conceived or even “incoherent”—a trend toward what one recent article
calls “hyper-legislation.”22 In this
climate, agencies are increasingly responsible for making sense of that
legislation. The result is what two scholars have recently described as a
significant uptick in executive “policymaking in the absence of Congress.”23
In particular, agencies face growing pressure to “tailor” statutes—using
enforcement discretion or otherwise—to address real governance concerns.24 Such agency action seems almost inevitable, especially in the
current environment.25 If Congress’s
statutes pose serious governance problems that Congress may not be prepared or
able to address, the task of working out those problems often will fall, for
good or ill, to the agencies charged with administering the statutes. However,
these agency-centered responses to congressional dysfunction pose potential legitimacy issues: most fundamentally,
are these exercises of power lawful in the absence of express congressional
approval? Questions like this have vexed lawyers and scholars in the debate
over President Obama’s immigration policies, for instance.26
And if recent history is an indication, they will continue to plague
administrative-law practice for years to come. Because of the governance problems posed by congressional
gridlock, administrative forbearance authority—by which Congress grants
agencies the express power to deprive the laws it passes of legal force and
effect27—may
be particularly appealing to modern policymakers. Of course, forbearance does
not itself solve the problem of gridlock. Because forbearance is an express
power, Congress itself must pass legislation to grant it. Nonetheless, there is
reason to think that Congress may be more able to pass legislation involving
broad forbearance provisions than legislation lacking such provisions: as Judge
(then Professor) David Barron and Professor Todd Rakoff have noted,
forbearance-like delegations may help facilitate compromise on legislation,
especially in the current political environment.28
Administrative forbearance is distinct from other kinds of
agency power that it resembles. It is different from enforcement discretion in
that it operates to formally nullify statutory requirements on a prospective
basis, at least if not reinstated by the agency during a subsequent rulemaking.29 It is also different from, though
related to, longstanding concepts such as administrative waivers and variances.
Traditionally, waiver has referred to agencies’ ability to waive their own regulations, not the requirements contained in a statute.30 Some statutes, however, do contain
provisions allowing agencies to waive statutory requirements in exceptional
circumstances and in particular cases—often, though not always, when
national security is at issue.31 Similarly,
statutes may allow agencies to grant variances from statutory or regulatory
requirements; these variances allow the agency to make such requirements more
or less strict for a particular regulated party.32
Forbearance is different. While waivers and variances tend to involve one-off
exceptions based on facts particular to the regulated entity involved,
forbearance operates on the wholesale level, resembling the exercise of
prospective policymaking. With forbearance, in other words, an agency decides
based on shared facts that a statutory requirement should be eliminated across
the board or with respect to an entire category of regulated entity.33 An expressly granted authority to void statutory requirements
solves the particular legitimacy
problem posed by unilateral executive action. When an agency acts pursuant to a
congressionally delegated power to deprive statutory provisions of legal force
or effect, the agency is not going it alone but rather exercising authority
granted by Congress. In these cases, the executive branch’s power is
traditionally at its apex.34 Although an expressly granted authority to deprive statutory
provisions of legal force and effect is a solution to one problem, it also
raises another: that of delegation.
Simply put, does the Constitution permit Congress to grant agencies such a
power? And normatively, as opposed to strictly legally, should we allow
Congress to provide agencies with the express authority to override statutes
that Congress itself has passed? The answers to these questions are unresolved, and the
literature on delegation thus far has not fully addressed them. As a purely
doctrinal matter, it is indeed unclear whether current law allows for such
delegations. It is true, of course, that Congress has nearly unfettered ability
to grant agencies the power to promulgate rules with binding legal force. Such
“positive” lawmaking delegations—delegations of the authority to make law—are valid as long as the
delegation supplies an “intelligible principle” to guide the agency’s lawmaking
discretion.35 And the Court has upheld, over the
years, several laws containing intelligible principles as vague as the “public
interest.”36 In theory, the “intelligible-principle” test should apply no
differently to negative delegations than to the more traditional positive
variety. The intelligible-principle test focuses on the scope of discretion
granted to an agency; it is satisfied as long as the agency’s discretion does
not amount to a limitless, truly “legislative”-type power. In terms of the
agency’s discretion, a congressional direction that an agency may regulate greenhouse-gas emissions if
doing so would be in the public interest is the same as a direction that an
agency shall regulate greenhouse-gas
emissions unless doing so would be contrary to the public interest.37
The only difference between these cases is the default state (regulation or no
regulation), an issue about which the intelligible-principle test is
theoretically agnostic.38 The rub comes with the Supreme Court’s decision in Clinton v. City of New York.39
That decision invalidated the Line Item Veto Act, which allowed the President
to “cancel” certain kinds of spending items and tax benefits after they were
formally signed into law.40 After President Clinton exercised
that power, the Supreme Court struck down the Act, stating that “[i]n both
legal and practical effect, the President has amended two Acts of Congress by
repealing a portion of each.”41 Scholars have debated the meaning of Clinton, which was famously cryptic. They have disagreed, for
instance, about whether the result rested on Presentment Clause grounds, as the
Court claimed, or whether the case was really a disguised application of the
nondelegation doctrine instead.42 And regarding the scope of the
decision, some scholars have argued that Clinton
is best read as essentially limited to its peculiar facts. In particular,
Barron and Rakoff have argued that the Court’s real concern lay in the five-day
limitation on the President’s exercise of his cancellation authority.43
In their view, the five-day limitation meant that the delegation in question
could not have been based on the traditional justifications for delegating
authority to the Executive (such as expertise), and was “thus proof of
abdication, pure and simple.”44 Outside of
such “extreme cases,” however, Barron and Rakoff argue that Clinton leaves plenty of room for
negative-type delegations.45 While Barron and Rakoff make a persuasive case for a narrow
reading of Clinton, a broader reading
may also be plausible and is supported by several other aspects of the Court’s
opinion.46
For example, Clinton repeatedly
noted, without reference to the five-day limitation or any other feature unique
to the Line Item Veto Act, that a cancellation effectively “amend[ed] or
repeal[ed]” legislation by depriving a statutory provision of legal force or
effect, something the Court appeared to believe violated the Presentment Clause
ipso facto.47
Moreover, in distinguishing prior cases upholding forbearance-like delegations,
the Court stressed two points. First, the Court explained that its decisions
had only upheld negative delegations in the context of international trade, an
area in which the Executive is afforded both greater deference and greater
discretion.48
Second, the Court emphasized the extremely limited nature of the Executive’s
discretion under prior negative delegations, which the Court characterized as
more akin to factfinding than policymaking.49 Clinton’s
discussion on these points can thus be interpreted to suggest that something
more than a lax form of the “intelligible-principle” test applies to negative
delegations. This broader reading of Clinton
cuts against negative delegations more generally, perhaps even prohibiting them
entirely. Some scholars have pushed this point even further. Most
prominently, Philip Hamburger suggests that an executive power to deprive legal
provisions of legal force is fundamentally at odds with the separation of
powers embodied by the Constitution.50
For him, a power to “waive” (or “dispense with”) statutory requirements for
individual parties is a kind of “extralegal” power that is not legislative,
judicial, or executive in nature and cannot be legally authorized, even by the
legislature.51
Hamburger believes that a more broad-based power to “suspend” legal requirements
rests with the legislature, but that power is nondelegable unless a
constitution specifically authorizes its delegation.52
It is unclear in which category Hamburger would place the various forbearance
provisions discussed in this Article. In any event, his critiques share a
common premise—namely, that when an agency lifts statutory requirements,
it is doing something categorically different than the executive task of
implementing legislation as written.53 In addition, R. Craig Kitchen, drawing on Clinton, argues that Article I, Section
7’s bicameralism and presentment requirements mean “[t]hat [statutory] text
should not have its legal force or effect undone through the exercise of
unilateral executive discretion.”54 In
particular, Kitchen worries that the minority-protective nature of Article I,
Section 7 will be undermined if “specific compromises in the negated statutory
text” are undone by the Executive through the exercise of forbearance
authority.55
As he elaborates: The Article I, Section 7 test of Clinton, properly understood, represents fidelity to a highly
specific constitutional bargain regarding the procedure for lawmaking. . . .
Negating or altering the legal force or effect of that text outside of
bicameralism and presentment risks undermining whatever bargain was made for
that specific text, and it does so without the input of the parties who made
the bargain and without providing them any opportunity to demand compromise in
other areas in exchange for their agreement to the change.56 Scholars are thus divided over whether negative delegations
are constitutional. As the foregoing discussion suggests, much of the
scholarship on negative delegations has focused on the proper interpretation of
the Court’s opinion in Clinton. In
doing so, however, the literature has yet to fully explore the constitutional
case for negative delegations. What has been missing from the small but growing literature
on forbearance-type delegations is, in part, a fuller understanding of how such
delegations operate within the overall system of government. Even defenders of
negative delegations treat them as a new phenomenon, and a potentially
irregular one at that.57 But, though
agency forbearance authority has operated mostly in the shadows until recently,
it is not so new. This lack of knowledge contributes to some of the uneasiness
about negative delegations. The propriety of positive delegations has rested in
part on a set of functional considerations that depend on a particular
understanding of the roles played by Congress and agencies in the policymaking
process.58 As Rafael Pardo and Kathryn Watts
recently put it, “Administrative law teaches that broad delegations of
policymaking power to agencies may well be desirable—and, hence, will
generally be tolerated as a constitutional matter—because of a variety of
functional considerations relating to agencies’ institutional structures and
capacities.”59 The prodelegation position has
(often implicitly) assumed that Congress and agencies perform particular,
complementary roles in the lawmaking process. Both critics and defenders of
broad congressional delegations assume that Congress does not engage in
detailed legislative drafting for various reasons—for example, the costs
associated with drafting detailed legislation, a desire to harness agency
expertise in fleshing out policy details, or, more nefariously, a desire to
shift blame for hard choices onto others, such as the President.60 According to one metaphor, a
decision to leave a statute “incomplete”—and allow an agency (or court)
to fill in the relevant details—is similar to the decision made by
contracting parties to write an incomplete contract.61 Whatever Congress’s reasons for
writing vaguely worded laws, however, the agency’s role in such situations is
clear. The agency makes rules governing situations where Congress has not
spoken. It is here, in filling in the policy details, where agencies’ greater
expertise, flexibility, and the like are usually brought to bear.62 But the functional considerations supporting delegations of negative-lawmaking authority to agencies
are less readily grasped. With negative delegations, Congress specifies certain
requirements and gives an agency
broad power to dispense with those requirements. To return to the contract
metaphor, this type of legislation resembles a contract in which the
contracting parties specify many details of their transaction while inserting a
broad force majeure clause allowing a court to dispense with the contract’s terms
under certain circumstances. Yet little is known about what agencies are to do,
and what they in fact do, when given such an authority. Existing defenses of forbearance authority are thus
necessarily incomplete. To date, the most thorough defense of forbearance-like
authority has been supplied by Barron and Rakoff.63 Apart from drawing attention to the
phenomenon of forbearance and providing their own interpretation of the Court’s
decision in Clinton, Barron and
Rakoff helpfully catalogue the reasons, sounding in considerations of political
economy, that Congress increasingly delegates forbearance authority to
administrative agencies.64 In their
telling, forbearance is a salutary development largely because it facilitates
lawmaking by allowing Congress to “establish new regulatory frameworks” knowing
that those frameworks can be revised by the executive branch.65 Yet Barron and Rakoff’s account focuses almost entirely on
Congress. Although Barron and Rakoff make a compelling case that forbearance
authority is a useful tool for Congress, their analysis, as a normative defense
of forbearance, tells only part of the story.66 That is because they do not focus on
the functions that forbearance might serve in the hands of the agency itself. Understanding those functions is useful for at least two
reasons. First, as the above analysis suggests, without understanding the
functions a statutory forbearance authority might serve, it is harder to know
whether such delegations capture the benefits of agencies’ greater expertise
and information relative to Congress, or whether Congress could perform a
similar role just as effectively. And if Congress could perform those roles as
well or better than an agency, thereby depriving such delegations of a
public-interested purpose, we should be more worried that Congress is engaged
in pure buck-passing. Second, an examination of the functions forbearance
serves in the hands of the agency can reveal the potentially counterintuitive
roles that forbearance may serve as part of an overall regulatory system, thus
providing further information for policymakers to consider when deciding
whether to include forbearance-like provisions in statutes of various kinds.
Moreover, as argued below, forbearance may be able to substitute for other, more
problematic forms of agency action, thus buttressing the normative case for
forbearance-like delegations. The analysis also responds in part to broad constitutional
critiques recently leveled against administrative forbearance authority.67 Negative delegations involve
Congress using its legislative power to specify the means by which real governance concerns are addressed—namely,
through the exercise of agency discretion. Negative delegations, like their
positive cousins, thus implement choices made by the statutes that Congress has
passed through the constitutionally prescribed Article I, Section 7 process.Moreover, the history of agencies’ use of
forbearance authority shows that agencies exercising such authority are not
ordinarily “undermining” whatever bargain the statute represents. Instead,
agencies are implementing the statute as a whole, which includes the negative
delegation itself. And because the statute as a whole has satisfied
bicameralism and presentment, the minority-protective functions of those
procedures should be satisfied.68 This Part describes how agencies have used forbearance
authority in practice, creating a taxonomy of the various functions that such
authority performs. As will become apparent, forbearance comes in many shapes
and sizes and has rarely involved nullifying a requirement altogether. For
example, agencies have used forbearance to exempt certain categories of
regulated entities from a requirement’s scope, to subject entities to
regulation under a statute while relieving them of the obligation to follow
certain requirements, or to defer a decision on classifying entities one way or
another while forbearing from any obligations that might apply in the interim. Because the following Sections frequently draw on the FCC’s
experience, a brief introduction to the statutory source of the FCC’s power
will be useful. The FCC has two different sources of forbearance authority. The
first is § 332(c) of the Communications Act, which was added in 1993.69
That section subjects commercial mobile services—i.e., cellular
telephony—to common carrier status, which automatically imposes a host of
statutory obligations on mobile carriers.70
But § 332 also allows the Commission to render most of those obligations
“inapplicable” to mobile carriers “by regulation.”71 Second, a more expansive grant of
forbearance authority, added as part of the 1996 overhaul of the communications
laws, is contained in § 160.72 That section
provides that if certain conditions are met, the Commission “shall forbear”
from applying any requirements contained either in its regulations or in the
Communications Act to “a telecommunications carrier or telecommunications
service, or class of telecommunications carriers or telecommunications
services, in any or some of its or their geographic markets.”73 Although both sources of the
Commission’s forbearance authority require it to make certain fact-sounding
determinations, they are worded broadly enough that the Commission has
substantial policymaking discretion to determine whether forbearance is
justified.74 The following Sections explain several problems forbearance
authority could be used to address and then draw on examples to show how
forbearance authority has served various purposes in the hands of agencies. Perhaps the most obvious use of a statutory forbearance
authority is in implementing statutory provisions that have become obsolete or
counterproductive due to changed circumstances.75 Two kinds of changes are
particularly relevant here. First, the factual conditions that justified a
statutory provision might change.76 The FCC’s decades-long efforts to
alter the Communications Act’s requirements in the face of newly emerging competition—culminating
in the Commission’s defeat in MCI
Telecommunications Corp. v. AT&T77—is what initially prompted
Congress to enact the 1996 Telecommunications Act’s forbearance provision.78
Indeed, the legislative history of the 1996 amendments suggests that Congress
acted specifically in order to overturn the decision in MCI,79
which held that the FCC’s authority to “modify” the Act’s tariffing
requirements did not create a forbearance-like power to dispense with those
requirements completely.80 Second, our assumptions about facts might change even when
the facts on the ground do not. In other words, what we know or understand about
facts might change even while the actual
facts remain exactly the same. A vivid illustration is provided by the “famous”
Delaney Clause,81
which banned food additives containing carcinogens at a time, the 1950s, “when
carcinogenic substances were difficult to detect and all detectable carcinogens
were extremely dangerous.”82 As time went on, however, our
knowledge of carcinogens changed, and it became clear that a literal
application of the Delaney Clause required the FDA to ban substances that posed
only a minuscule risk of cancer and that may even have been safer than the
available alternatives.83 How have agencies used forbearance to deal with such issues?
To return to the main case study, the FCC has used its forbearance authority to
relieve regulated entities of obligations in circumstances where the facts that
once supported the imposition of those obligations have changed. One example
comes from the 1996 Telecommunications Act’s “local competition” provisions,84
which were designed to spur competition in local (as distinct from
long-distance) telephone markets that had long been dominated by monopolist
firms.85
Among the Act’s reforms, Congress controversially required incumbent carriers
to lease portions of their network to competitors at cost-based rates.86 By the mid-2000s, however, the Commission had already seen
fit to exercise its forbearance authority to relieve incumbent carriers of
their forced-leasing obligations in two geographic markets where competition
had developed with unexpected rapidity.87
What had changed? The answer was something that Congress could barely have
anticipated in 1996: the use of cable television facilities to provide
point-to-point telephony services via Voice-over-Internet-Protocol (VoIP)
technology.88
The entry into local telephone markets by facilities-based competitors
unsettled a regulatory paradigm that assumed that, absent forced leasing, entry
by new market players would be very unlikely.89
If that premise does not hold, forced leasing imposes costs related both to
implementation and market incentives that likely would not be offset by
corresponding benefits.90 Seizing on
these facts, in 2004 Qwest (a former Bell company) formally asked the FCC to
exercise its forbearance authority and, among other things, relieve Qwest of
its unbundling obligations in Omaha, Nebraska.91
The FCC agreed.92 As the Commission explained: While the costs of such regulatory intervention may
be warranted in order to foster competitive entry into the local exchange and
exchange access markets where such competition would not otherwise be
generated, we find that these costs are unwarranted and do not serve the public
interest once local exchange and exchange access markets are sufficiently
competitive . . . . In addition to furthering the congressional goal of
creating competitive local exchange markets, our decision today also furthers
another of Congress’s primary aims in the 1996 Act—to deregulate
telecommunications markets to the extent possible. We act today in accord with
Congress’s clear intent in section 10 to sunset in a narrowly tailored fashion
any regulatory requirements that are no longer necessary in the public interest
so long as consumer interests and competition are protected.93 Another agency that has used a forbearance-like authority in
order to address changed circumstances is the SEC. Under the statutes it
administers, the SEC has several sources of what the securities laws refer to
as “exemptive” authority—essentially, a forbearance power to relieve
parties of statutory requirements similar to that held by the FCC.94 In 2005, the SEC exercised that
authority to significantly alter many restrictions on how companies may offer
securities stemming from the 1933 Act, essentially “forbearing” from those
restrictions.95 As part of the reforms, the
Commission relieved “well-known seasoned issuers”96
from compliance with the anti-gun jumping prohibition contained in section 5(c)
of the Act, which makes it unlawful to communicate regarding any security
offering prior to filing a registration statement (including a prospectus) with
the SEC.97
As the Commission explained, that statutory provision was “enacted at a time
when the means of communications were limited and restricting communications
(without regard to accuracy) to the statutory prospectus appropriately balanced
available communications and investor protection.”98
However, with the advent of modern communications technology and changes in
investor behavior, the pendulum had swung. The Commission believed that “the
gun-jumping provisions of the Securities Act,” as applied to seasoned issuers,
had “impose[d] substantial and increasingly unworkable restrictions on many communications
that would be beneficial to investors and markets and would be consistent with
investor protection.”99 The
Commission thus removed the restriction for well-seasoned issuers. The problem of changed circumstances emerges when portions of
a statute become unnecessary or counterproductive over time. Some statutes,
however, are born ill fitted. Most relevant here, a statute may be overinclusive—that is, its
“language, read without sufficient regard to context or its intended field of
application, will reach situations that it could not reasonably cover.”100
For example, a statutory prohibition might on its face prohibit certain conduct
that the reasons for the prohibition do not seem to reach. (Think, for example,
of H.L.A. Hart’s famous “vehicles in the park” hypothetical.)101
Likewise, a statutory requirement may obligate regulated entities to do
something that appears unjustified in light of the reasons for the requirement. A traditional way to deal with overinclusiveness is through purposive
statutory interpretation, wherein the purposes of a statute are invoked in
order to justify creating carveouts from the statutory text.102
But purposivism cannot cure all overinclusiveness, especially in an age where
textualism enjoys substantial support.103
Forbearance authority in the hands of an agency, on the other hand, can help
cure overinclusiveness by allowing an agency to tailor the statute to the
surrounding circumstances. This would ultimately create a regulatory regime
that makes more sense than the “provisional” statute enacted by Congress. The FCC has performed such a tailoring function in the mobile
wireless context. Prior to 1993, the Commission regulated mobile-wireless
providers—then emerging on a widespread basis—under an ad hoc regulatory
regime that relied on a hodgepodge of statutory sources of authority.104 In its 1993 amendments to the
Communications Act, Congress brought mobile-wireless providers within the Act’s
scope by subjecting “commercial mobile radio services”—the kind of mass-market
voice services now provided by carriers like AT&T and Verizon—to
common-carrier status.105 As an immediate result of that
decision, many of the various “Title II” common-carriage obligations, ranging
from tariffing requirements to licensing rules obligating providers to gain
permission from the FCC before entering or exiting the market, were to apply to
mobile-wireless providers.106 At the same
time, however, Congress understood that mobile-telephone markets exhibited much
greater levels of competition than traditional wired telephony. So Congress
allowed the Commission to “specify by regulation” that some statutory
obligations would be “inapplicable” to mobile carriers, provided that the
Commission had first determined that such regulations were in the public
interest.107 The Commission accordingly responded by forbearing from
applying many of Title II’s provisions, including all statutory requirements
dealing with tariffing and entry and exit from the market, to mobile carriers.108
Regarding the entry and exit certifications required by section 214 of the
Communications Act, the Commission stated: [I]n a competitive market, application of Section 214
could harm firms lacking market power since certification procedures can
actually deter entry of innovative and useful services, or can be used by
competitors to delay or block the introduction of such innovations. The
presence of Section 214 barriers to exit may also deter potential entrants from
entering the marketplace . . . . [T]he time involved in the decertification
process can impose additional losses on a carrier after competitive
circumstances have made a particular service uneconomic and, if adequate
substitute services are abundantly available, the discontinuance application is
unnecessary to protect consumers.109 Other agencies have also used forbearance authority to
perform a tailoring role. One example stems from Congress’s 1990 amendments to
the Clean Air Act. Section 112 of the 1970 amendments required the EPA to
create emission standards governing hazardous air pollutants from stationary
sources; the standards had to “provide[] an ample margin of safety to protect
the public health.”110 The EPA was also tasked with
creating a list of hazardous air pollutants from stationary sources within ninety
days of the passage of the 1970 amendments.111
Between 1970 and 1990, however, the EPA had regulated only seven air toxins
(out of potentially hundreds) under section 112.112
As the Senate report accompanying the amendments noted, “[T]he law ha[d] worked
poorly.”113 The 1990 amendments took the task of designating hazardous
air pollutants out of the EPA’s hands by specifying an “initial list” of nearly
two hundred such pollutants.114 At the same time, however, Congress
recognized that its list may have been overinclusive—that is, certain
chemical substances included on the initial list actually may not have posed a
threat to public health. Congress thus empowered the EPA to “delete” any
substance from the list of pollutants upon a showing that the substance “may
not reasonably be anticipated to cause any adverse effects to the human health
or adverse environmental effects.”115
“[A]ny person” may petition the EPA to delete (or add) a substance to the list,
and the EPA is required to “either grant or deny the petition by publishing a
written explanation” of the reasons for its decision within eighteen months.116
The EPA has occasionally exercised its authority to delete substances from the
list.117 When it does so, such substances are
no longer regulated under section 112. In each of the examples described above, an agency deregulates in some way: Congress set a
proregulatory baseline that the Executive can then (to a greater or lesser extent)
dismantle. That is not surprising, of course, because forbearance usually
empowers agencies to eliminate or limit the scope of a statutory requirement. In a somewhat paradoxical way, however, forbearance authority
may also be used to enable
regulation. Imagine the following scenario: an agency is tasked with deciding
whether something or someone falls within the meaning of a statutory term. The
statute is ambiguous in the Chevron
sense, meaning that the agency therefore has policymaking discretion (within
bounds) to decide the classification question either way.118
In many settings, the decision, if made in the affirmative, will automatically
trigger a number of statutory requirements (let’s call them Requirements A, B,
and C).119
Assume that the social benefits of applying Requirement A to the entity in question are net positive—yielding, say, one
billion dollars in net present value. But if the net costs of applying Requirements B
and C are sufficiently high, they may
swamp those benefits. The rub is this: in most situations, the agency’s choice
is all-or-nothing—that is, the agency can decide the initial
classification one way or another, but once it does, it cannot pick and choose
among the regulatory consequences of that decision. Thus, a rational agency faced
with a situation in which Requirement A
is socially beneficial but the costs of Requirements B and C outweigh those
benefits will choose not to regulate at all. Statutory forbearance authority may solve this dilemma. An
agency armed with such authority can simultaneously make the classification
decision in question—essentially flipping the “on” switch—while at
the same time avoiding the undesirable regulatory consequences of doing so. For
example, the agency in the above hypothetical could choose to apply A while at the same time negating B and C. This is essentially what the FCC has done in the continuing
controversy over so-called “net-neutrality” rules.120 Proponents of net neutrality seek to
regulate the relationship between ISPs, like Comcast, and Internet content
providers, such as Google or Netflix.121 By reclassifying broadband ISPs as
Title II “telecommunications carriers,” the Commission placed net neutrality on
sounder legal footing.122 But the decision to reclassify
broadband ISPs also automatically subjected those providers to the full suite
of “common-carrier” obligations contained in Title II of the Communications
Act, including retail rate tariffing requirements.123
Many believe that a number of the common carrier obligations, such as tariffing
requirements, should not apply to ISPs.124
Thus, proposals to reclassify broadband ISPs as common carriers have almost
uniformly demanded forbearance from certain Title II rules, and in particular
ex ante rate regulation, as a key component.125
And a large part of the Commission’s February 2015 Title II reclassification order
was devoted to forbearing from such obligations.126
As the Commission explained, the order forbore “from 30 statutory provisions
and render[ed] over 700 codified rules inapplicable” in order “to establish a
light-touch regulatory framework tailored to preserving those provisions that
advance our goals of more, better, and open broadband.”127 Another use for a negative-lawmaking delegation in the hands
of an agency is to reduce regulatory uncertainty while the agency makes (or
defers) a decision on an issue with broad consequences. Recent scholarship has
highlighted how agencies often wait to make decisions with important regulatory
consequences.128 For example, prior to Massachusetts v. EPA,129
the EPA had studiously avoided deciding whether greenhouse gases were air
pollutants requiring regulation under the Clean Air Act.130
One obvious cost arising from agency decisions not to decide,
however, is regulatory uncertainty. Take the hypothetical described above, in
which an agency is tasked with deciding whether something or someone meets a
statutory definition, with an affirmative answer triggering three distinct
regulatory requirements (A, B, and C). Now imagine that the agency declares that, at least for the
time being, it is agnostic on the classification question—that is, it has
chosen not to decide. The costs of choosing not to decide may not be great as
long as the agency is the only relevant enforcer and it is clear that the
agency will not enforce requirements A,
B, and C until it has decided the underlying question. However, that often
will not be the case. Frequently, whether regulatory requirements A, B,
or C apply will be determined in the
course of a legal dispute between private parties. And in those situations,
courts—including district courts—may ultimately have to decide the
classification question itself, subject to possible later override by the
agency.131
Not only can this dynamic cause significant ex ante regulatory uncertainty, but
it also may undermine one of the oft-cited rationales for the Chevron doctrine—namely, the value
of uniformity in federal law.132 Now imagine that the agency could exercise forbearance
authority and specify that certain requirements do not apply while also
deferring decision on the underlying classification question. In other words,
the agency in the above hypothetical could declare that Requirements A, B,
and C (or just A, or B and C, etc.) lack legal force and effect
while remaining mum on the broader classification issue. In this way, the
agency could defer a large decision and engage in “administrative minimalism”
while still maintaining national uniformity and reducing uncertainty, at least
with respect to the application of requirements A, B, and C.133 The FCC has just this power under its forbearance authority,
although that power had to be thrust upon the agency by litigants and the D.C.
Circuit. The FCC had for years avoided deciding whether certain Internet
Protocol-based services, including VoIP services providing two-way voice
communication, are “telecommunications services” under the Communications Act;
this determination carries with it an array of important regulatory
consequences, including various common-carrier obligations under Title II of
the Communications Act.134 It was in this context that in 2004, SBC Communications (now
AT&T) petitioned the Commission to forbear from placing Title II
requirements on “IP platform services”—including VoIP—“to the
extent that such regulation might otherwise be found to apply.”135 The Commission rejected the petition
on the procedural ground that the FCC’s forbearance authority did not allow it
to forbear from obligations that could only hypothetically apply in the future.136
In other words, because it had yet to decide the initial question regarding
whether IP services were telecommunications services, the Commission concluded
that it could not forbear from specific regulatory requirements that would flow
from an affirmative answer to that initial question. The D.C. Circuit disagreed.137
It rebutted the Commission’s claim that conditional forbearance was never in
the “public interest.”138 The court
stated that “[p]arties petitioning for conditional forbearance seek elimination
of regulatory uncertainty, and even the Commission recognizes that ‘regulatory
uncertainty . . . in itself may discourage investment and innovation’ regarding
the very technologies Congress intended the Act to promote.”139
In essence, the court determined that forbearance can be used to reduce
uncertainty regarding the specific obligations of regulated parties while the
agency decides (or defers) an issue of broader importance. Part II described the functions that a forbearance authority
can serve. This Part asks a different question: is delegation of those
functions to an agency normatively desirable? Section III.A applies the traditional justifications for
delegation to the special case of negative-lawmaking delegations. Those
justifications apply rather straightforwardly in this different context. In
particular, agencies’ greater expertise and flexibility likely make forbearance
by agencies superior to action by Congress through legislative repeals or
“sunset” clauses specifying an expiration date for statutory requirements.140 While Section III.A asks whether agency forbearance is
superior to action by the other branches, Section III.B analyzes whether
forbearance authority is superior to other regulatory tools that agencies
possess, such as the power to selectively enforce statutes. An express
forbearance authority may serve as a substitute for agency nonenforcement in a
range of circumstances, and a variety of process considerations—including
concerns about “underground” policymaking outside the normal accountability
channels—make the exercise of forbearance authority normatively
preferable as a policymaking device. Perhaps ironically, even opponents of
delegation may prefer express forbearance authority to one frequently used
alternative—detailed legislation coupled with de facto delegation to
agencies of the power to tailor legislation through enforcement discretion.141 Section III.C addresses a number of objections that may be
raised against agency forbearance authority. One important theme is that the charges
leveled against negative delegations are simply variants on concerns raised
with respect to more traditional positive delegations. These charges do not
apply with any more force to negative delegations; in fact, several of those
charges are considerably weaker with
respect to negative delegations. Thus, once again, even opponents of delegation
generally may have reason to tolerate forbearance authority as an alternative
to more open-ended positive delegations. This Section applies the traditional justifications for
delegation to agency forbearance authority. Because of the greater expertise
and flexibility of agencies vis-à-vis Congress, agencies might be better at
wielding the power to deprive statutory provisions of their legal force and
effect. Perhaps the classic justification for delegation is to
harness agencies’ superior expertise and information vis-à-vis Congress.142 Agencies are assumed to know more
about the likely effects of a given policy choice than either Congress or the
courts.143 Thus, in the traditional positive-delegation
model, agencies are tasked with a goal and allowed broad latitude to select the
policy means to achieve that goal. It is not difficult to see how agencies’ greater expertise
and information might also justify delegations of the “negative” sort. Take the
issue of statutory obsolescence. When Congress has made some effort to specify
the details of a statute, and even when Congress has made a large one-time
investment to acquire the information necessary to do so, the requirements
Congress has fashioned may become unnecessary or counterproductive over time.
Congress might assume responsibility for determining when statutes become
outdated: it might trust a future Congress to repeal obsolete requirements, or
it might specify ex ante that certain provisions will expire on a certain date.
A better option, however, may be to delegate that obsolescence determination to
an agency. Because agencies often have large staffs of experts devoted to
studying a particular area,144 they are
more likely to be able to make informed decisions about when statutory
requirements have become obsolete. They likely are also better at assessing the
often complex effects of lifting a statutory requirement.145 Agencies’ expertise and informational advantages also may
make them better at tailoring statutes to cure overinclusiveness. As noted
above, sometimes Congress realizes that its “initial” legislation is likely to
require tailoring, and it delegates that task to an expert agency.146
Although Congress may have enough information to write a “first draft” of
legislation147
and may prefer for any number of reasons that its draft be the default until
the agency acts, Congress may also reasonably predict that an agency will have
greater expertise regarding how the statute should be narrowed going forward. With regard to the two other functions of negative
delegations, enabling regulation and reducing uncertainty, it is less clear
that Congress is ever in a particularly good position to perform these tasks in
the first place. These two functions address situations in which old regulatory
structures are applied in new or unanticipated ways. For example, Congress
barely anticipated the rise of broadband Internet when it wrote the
communications laws. As a consequence, both the definitions and requirements
contained in the Communications Act apply rather crudely to broadband. In
theory, Congress could intervene to create a more rational regulatory structure
in such situations. But as will be discussed below, Congress’s crowded docket
and lethargic pace make such an intervention unlikely.148 One might object at this point that the Executive’s decision
to forbear often may not be motivated by expert judgment. Rather, we might
predict that political opposition to a given statutory requirement is often
what will fuel an agency’s exercise of forbearance authority. The general point—that agency decision making might be
influenced by political as well as expert judgment—cannot be denied.149
Denying Congress the ability to include forbearance provisions in its statutes
is unlikely to be the right response, however, and may actually make the
problem worse.150 The problem
of politics in agency decision making—to the extent it is a
problem—is one endemic to the administrative state, and not one specific
or unique in any way to agency forbearance authority. Moreover, as argued
below, including forbearance provisions in statutes may actually provide
Congress a way to reduce the amount of slack between the enacting Congress’s
wishes and the actions of the agency, at least as compared to traditional
delegations.151
Finally, the increased opportunity that expressly delegated forbearance
authority provides for judicial review and for monitoring by
Congress—because, for example, it is subject to notice-and-comment
requirements—reduces the risk of unchecked political influence compared
to executive branch nonenforcement.152 Another common justification for delegation to agencies is
their superior flexibility. As Pardo and Watts have noted, “[A]gencies are
better able to adapt rules to respond to new information, different facts, or
changed circumstances than Congress (which is constrained by political
roadblocks and institutional barriers) or the courts (which are constrained by
stare decisis).”153 Indeed, under prevailing
administrative-law principles, an agency is provided broad discretion both to
fashion the details of policy and to change or repeal those details.154 The flexibility rationale for delegation applies particularly
well to negative delegations. First, the same factors that make agencies more likely
to revise their own regulations in response to new information make them more
likely to be able to revise congressionally
specified requirements through forbearance. One might think Congress should
respond vigorously to changed circumstances, but a number of factors may
prevent it from doing so.155 Second, the fact that an agency can
reverse or revise its decisions more easily than Congress means that an agency
is more likely to fix an erroneous decision. This flexibility is particularly
valuable when statutory requirements are eliminated in response to changed
circumstances. After all, there may be uncertainty regarding whether the
statute itself is responsible for the changed circumstances and a risk that the
problems addressed by the statute will reoccur after the statutory requirements
in question are rendered inapplicable. Third, and relatedly, agencies’ greater flexibility can allow
valuable experimentation. Recent work has shown that when laws can be more
easily reversed, the optimal approach may be to experiment with policies in
order to gain valuable information that can help policymakers formulate general
rules.156
A forbearance authority allows an agency to experiment not with regulation but
with deregulation. Of course,
deregulatory experimentation carries its own risks. Agencies might, for
example, experiment in ways that undo requirements that in fact remain
necessary, resulting in backsliding.157
But while the risks associated with experimentation through forbearance must be
taken seriously, the added flexibility afforded by forbearance nonetheless
makes it a potentially valuable tool in the hands of agencies. Section III.A focused on institutional choice, asking whether
agencies, Congress, or courts were better at updating outdated statutes. This Section
asks a slightly different set of questions. How does an express forbearance
authority compare to other policymaking tools that an agency possesses and that
serve similar ends? And should we prefer agencies exercising power pursuant to
an express forbearance authority to them shaping statutes through more informal
means, especially nonenforcement policies? Recent scholarship has highlighted the extent to which
executive nonenforcement of federal statutes can substitute for more explicit
forms of policymaking.158 Take the area of immigration. The
immigration laws resemble the tax code in the number of congressionally
specified details they contain.159 However, as
Adam Cox and Cristina Rodríguez have explained, because the Executive cannot
(due to resource constraints) possibly remove all “formally deportable”
noncitizens, the system provides the Executive broad discretion to shape the
law through enforcement policies.160
Indeed, Cox and Rodríguez maintain that this ability to shape immigration
policy through enforcement practices amounts to a “de facto delegation of
power” from Congress to decide which particular persons (or classes of persons)
stay in the country and which do not.161 This Section examines the process
reasons we might prefer agencies to act pursuant to an express forbearance
authority rather than pursuant to nonenforcement.162 One assumption this Section makes is
that action pursuant to an express forbearance authority can reasonably
substitute for nonenforcement practices, such that the delegation of express
forbearance authority to agencies will, at least in some cases, lead to less
reliance on nonenforcement as a policymaking tool. Although agencies debating
whether to act through one or the other means may still have incentives to rely
on nonenforcement, perhaps particularly when they want to shield their actions
from public scrutiny or judicial review, agencies also have strong incentives
pointing in the opposite direction. For one, action taken pursuant to an
express delegation is more durable and more likely to carry over into the next
administration. Thus, agencies looking to “lock in” policies may prefer to act
through delegated rulemaking authority. In addition, as Justice Scalia recently
explained, the power to deprive statutory requirements of their legal force is
stronger than simple nonenforcement because it can stop private parties who otherwise hold private rights of action, and
not just the agency, from enforcing statutory requirements.163
The following discussion will therefore assume that agencies sometimes will
act, if given the opportunity, through an express negative delegation when they
otherwise would have pursued similar ends through nonenforcement. One advantage of agency action pursuant to an express
forbearance authority is its greater consonance with the Constitution’s Take
Care Clause, which provides that the President “shall take Care that the Laws
be faithfully executed.”164 Scholars
have argued that when the Executive uses its enforcement discretion in a manner
that is too categorical or policy-based, it violates the Take Care Clause.165
On this view, while the Executive has broad discretion to decide whether to
enforce statutory requirements in individual cases, decisions not to enforce a
statute prospectively for entire categories of violations go too far,
effectively amending the laws that Congress has passed. Whatever one thinks of these claims, the important point is
that an express congressional delegation of authority to deprive statutory
requirements of legal force and effect for certain categories of cases solves
any dilemma posed by the text of the Take Care Clause.166 That is because the negative
delegation is endogenous to the statute itself. Executive action pursuant to
such a delegation therefore is not “unfaithful” to the law Congress has passed.167
Instead, an agency exercising forbearance authority pursuant to a congressional
statute is faithfully executing that statute as written. A second reason that we might prefer agency action pursuant
to an express forbearance authority is that it provides greater opportunities
to monitor agency activity. One persistent criticism of the administrative
state, and particularly of broad delegations, is that policy is frequently
formulated through allegedly less transparent means.168
Less visible policymaking may lead to less accountable government.169 Visibility also may be linked to
other good government values invoked by opponents of delegation, such as the
rule of law.170 But agencies themselves can act in more or less visible (and
thus accountable) ways.171 And one
function of administrative law is to encourage agencies to announce policies in
ways that the people and their elected representatives can more easily monitor.172 Agency action pursuant to an express forbearance authority is
much more likely to be visible. Several of the delegations discussed above
specifically require the agency to invoke forbearance authority by rule or
regulation, which in turn requires the agency to publish its actions in the Federal Register.173
And in every one of the above examples of agencies using their forbearance
authority, the agency has done so following a notice-and-comment process.174
Such processes are likely mandated by the APA because negative delegations
prospectively alter substantive legal obligations.175 A notice-and-comment process resulting in a formal regulation
is, for obvious reasons, a much more visible form of policymaking than is
statutory nonenforcement. Following the FCC’s May 2014 Notice of Proposed
Rulemaking on net neutrality, the agency received almost four million comments.176
Although that proceeding is surely something of an outlier, it shows the
potential of notice and comment to bring regulatory issues into the public
discourse.177
Less dramatically but probably more importantly, notice-and-comment processes
provide information to political insiders, including elected politicians.
Influential work by Mathew McCubbins, Roger Noll, and Barry Weingast, for
example, has argued that such processes contribute to a “fire alarm” system of
oversight in which interested parties can more easily monitor agency behavior
and alert Congress (or the President) to potential problems.178 This contrasts with more costly
forms of oversight such as congressional committee investigations, in which
politicians must acquire information on their own.179
Another objection lodged against the modern administrative
state is that agency policymaking encourages “arbitrary” government decision making.180
The core of the concern is that delegation allows policy to be formulated
outside the deliberative structures set up by the Constitution. These
deliberative mechanisms were once thought to ensure that the government acts
with public purposes in mind.181 Administrative arbitrariness,
defined by the government’s failure to act rationally and according to public
purposes, is thus one threat traditionally associated with delegation.182 The primary way American law deals with administrative
arbitrariness is through various subconstitutional rules derived from the APA
and enforced through judicial review. Most importantly, agencies proceeding
through notice-and-comment rulemaking generally must (a) provide reasons for their
decisions, including a response to any significant objections;183
and (b) engage in “reasoned-decisionmaking” such that the policies they adopt
are at least minimally rational.184 They also must base their decisions
on the factors made relevant by Congress.185
These requirements seek to discipline agency decision making and promote
public-regarding (i.e., nonarbitrary) action by agencies.186 Agency nonenforcement decisions generally are not subject to
judicial review and thus do not have to satisfy the requirements of reason giving
and rationality that apply to other categories of agency action.187
In Heckler v. Chaney, the Supreme
Court held that agency nonenforcement decisions are presumptively unreviewable
under the APA.188 That presumption
has limits,189
but those limits are unlikely to play a meaningful role in cabining agency
action.190
In addition, even apart from the APA, constitutional standing requirements
often prevent members of the public from challenging agency nonenforcement
decisions.191 By contrast, and as explained above, agency action taken
pursuant to a forbearance authority will result in a “rule” under the APA.
Judicial review of such a rule is presumptively available.192
The FCC’s forbearance decisions, for example, have been routinely subject to
judicial review under the normal “arbitrary and capricious” standard.193 Judicial review is not the only way to discipline agency
decision making. Since the Reagan Administration, OIRA, which is part of the Office
of Management and Budget (OMB), has subjected all significant rules promulgated
by executive branch agencies to cost-benefit review.194 The original impetus for centralized
cost-benefit review was distrust of agency power and, in particular, “a fear that,
if left unchecked, regulatory agencies would consistently regulate ‘too much.’”195 But recent work also has highlighted
how cost-benefit review might usefully be applied to agency deregulation or
inaction.196
More generally, review of agency rules by officials closer to the President can
be seen as a way of monitoring agency behavior and mitigating any number of
pathologies that could lead agencies to act in undesirable ways.197 Cost-benefit review is much more easily applied to agency
forbearance decisions than to agency deregulation through nonenforcement.198
The former will usually result in a discrete rule, the effects of which can be
isolated and studied just as with any other rule. Agency enforcement practices,
by contrast, are not so easily policed. Even concerted efforts to reduce
enforcement of a particular requirement will often take the form of a series of
discrete (though related) decisions not to prosecute.199
In these kinds of nonenforcement actions, it is unclear how costs and benefits
could be measured in the first place. The relative lack of visibility
associated with nonenforcement practices compounds this difficulty, making it
easier for agencies to hide policymaking from potential reviewers. Thus, by
shifting agency policymaking away from nonenforcement, statutorily authorized
forbearance may make it easier for the executive branch to engage in
cost-benefit review of administrative deregulation. This Section addresses some possible critiques of forbearance
authority. An overarching theme of the Section is that the objections lodged
against negative delegations are just variants on traditional concerns
associated with more familiar types of delegation. In many cases, these
objections in fact apply with less
force to negative delegations than to positive ones. Thus, those already
comfortable with delegation to agencies generally should have no particular
reason to fear the growth of forbearance authority. More interestingly,
opponents of broad delegations to agencies may actually prefer forbearance-type
delegation in a world—such as our own—where positive delegations
are “here to stay.”200 Opponents of
delegation generally should support negative delegation as a second-best
solution because banning negative delegations may simply increase the law’s
already heavy reliance on positive ones.201
One objection to an agency forbearance authority is that it
simply places too much power—or perhaps power of a too dramatic
sort—in the hands of an agency. As noted above, critics of forbearance
have called such negative delegations “astonishing” and have questioned whether
allowing agencies such a power comports with the constitutional separation of
powers.202
This criticism echoes Clinton, where
the Court described the ability to deprive statutory requirements of legal
force and effect as a power “to enact, to amend, or to repeal statutes” that
the Constitution does not allow the Executive to wield.203 But if one steps back and considers more carefully what is
involved in forbearance, the power is not at all “astonishing.” In many ways it
is a tamer version of the traditional, positive-type delegation that is firmly
established as a matter of constitutional law. First, as a formal matter, to say that forbearance authority
allows a legislative “repeal” (or “modification” or “unmaking”) of the statute
Congress has passed fundamentally mischaracterizes forbearance. Since the
negative-lawmaking delegation is part of the statute, action pursuant to such a
delegation is an implementation of the statute, not a repeal or modification of
it. Here is a slightly different way to approach the point: when Congress
simultaneously enacts a requirement and makes it defeasible at the agency’s
discretion, the characteristic of defeasibility already has been built into the
requirement as passed. It is thus incorrect to posit that when an agency uses
its authority, it is engaged in a “repeal” of the statute that requires the
constitutional processes of bicameralism and presentment.204 It still could be argued that, at least as a functional
matter, an express forbearance authority is simply “too big” an authority to
vest in an agency. But is that right? Certainly it is correct that, from the
standpoint of agency power, a statute containing a negative-lawmaking
delegation allows the agency more power than a relatively detailed statute that
does not contain such a delegation. However, that is often the wrong
comparison, for Congress will always have the option of instead enacting a
garden-variety positive-type delegation that specifies few, if any, details in
advance. In terms of agency power, negative-lawmaking delegations in fact
occupy a middle ground between completely specified statutes and more
open-ended positive delegations. Recall, for instance, the 1993 mobile-wireless
amendments to the Communications Act.205
Congress could have written a statute providing that the FCC “shall have the
authority to regulate commercial mobile services to promote competition and
protect the public interest.” What Congress did instead was to presumptively
apply a number of requirements—such as entry and exit certifications and
tariffing obligations—to commercial mobile services and then allow the
agency to forbear from applying some of those requirements by regulation. As a
result, the agency had at its disposal a narrower set of options than if
Congress had allowed the Commission to regulate on a blank slate. Another objection to negative delegations is that such
delegations allow an agency to unmake deals that were necessary to strike the
legislative compromise that resulted in the requirement at issue.206
This objection similarly crumbles on closer inspection. First, as a purely formal matter, to say that agency action
pursuant to an expressly delegated authority undermines the deal struck by
Congress makes little sense. After all, the “deal” includes the negative
delegation. The risk that the agency would use the delegation as authorized was
built into the “deal.” The objection appears to assume that the compromise is
reflected in the specific language of the requirement and that the delegation
is somehow external to that compromise.207
But the delegation is just as much a part of the overall statute as any other
statutory language, and one cannot assume that prohibiting Congress from making
the delegation of forbearance authority would have resulted in the same statute
otherwise. Quite the contrary. In the absence of agency authority to forbear
from a particular requirement, the resulting statute might have been less
favorable toward the interests that lobbied in favor of that requirement. At
the extreme, the statute might not have even passed. Perhaps, however, the objection reflects a more nuanced
concern along the following lines. Every delegation involves the risk of what
political scientists refer to as bureaucratic
drift in which the agency pursues outcomes different from those preferred
by the principal (here, Congress).208
This risk may be heightened for negative-lawmaking delegations, as agents can
“cancel” the instructions they receive from Congress. But the intuition that negative delegations create greater
principal-agent problems than positive ones is empirically untested and, for
reasons similar to those discussed in Section III.C.1,209
unlikely to be true. Forbearance authority is in important ways a more modest
power than that more typically given to agencies. Most important here, when
Congress delegates forbearance authority, it still sets the default regulatory
regime, including the presumptive requirements that apply to regulated
entities. The agency thus has the burden of inertia to depart from that
regulatory regime, which, as argued above, must be done through
notice-and-comment processes. Moreover, just as in the traditional case,
Congress has the option to write a more or less stringent intelligible
principle to govern the exercise of agency discretion, and may place the burden
of proof on the agency (or petitioners) to satisfy that principle.210
Congress can thus monitor and assess any departures from its baseline regime
and respond accordingly. All of this is reason to think that, as compared to
the positive type, negative delegations may actually mitigate rather than
exacerbate the principal-agent problems arising from delegation. A third possible objection to negative-lawmaking delegations
is that such delegations allow Congress to shirk its responsibility and hide
potentially unpopular policymaking from public view. One form of this argument
has appeared in the popular press and takes the following general form:
negative delegations allow Congress to write laws that appear tough (and thus,
by hypothesis, please the public).211
However, those laws are a mirage because members of Congress (and, perhaps,
powerful regulated entities) know that the law will be implemented only
partially. The agency tasked with implementing the statute will, by exercising
its delegated authority, grant exceptions and lift statutory requirements.
Because such agency action is—again by hypothesis—less visible,
lines of accountability will be severed and democracy will suffer. This argument is really just a reframing of the conventional
critique of delegation—associated with David Schoenbrod212—that
delegation allows Congress to engage in “happy talk” about the laws it passes
while at the same time handing agencies the obligation to make hard choices.213
This argument is also open to the same responses. Most persuasively, under the
assumptions favored by critics of delegation, voters could still hold
legislators responsible for the decision to delegate in the first place.214
A vote for legislation containing a delegation (including a “negative” one)
signals Congress’s judgment that the delegation is in the public interest. If
that turns out to be wrong, voters can punish those who supported the law. As
Eric Posner and Adrian Vermeule have argued with respect to traditional
positive delegations: If the agency performs its function poorly, citizens
will hold Congress responsible for the poor design of the agency, or for giving
it too much power or not enough, or for giving it too much money or not enough,
or for confirming bad appointments, or for creating the agency in the first
place.215
And if voters are inattentive to the
details of legislation, there is no reason to think they are more easily duped
by happy talk concerning delegatory legislation than any other kind of
legislation.216 Negative delegations also may fare better than positive ones
when assessed in terms of the potential for congressional shirking. When
Congress legislates with specificity while allowing an agency to forbear from
implementing some of those detailed requirements, at least Congress is the one
responsible for setting the default policy.217
Often this is not true with traditional delegation, where Congress sets only a
goal or principle and leaves agencies to fill in the details.218
Thus, it is quite plausible that even “provisional” legislation that
establishes a default policy can supply voters with more information about
Congress’s performance than more open-ended legislation. One might still object that the act of delegating forbearance
authority inherently involves the transfer of power from Congress to agencies.
To the extent Congress is seen as the more accountable actor, the critique has
force and echoes a common concern with delegation generally.219 However, the point remains that
there is no reason to fear greater accountability losses with respect to
forbearance delegations than any other kind of delegation. In fact, for the
reasons just given, forbearance delegations involve more of a commitment by
Congress than the ordinary case.220 One further point bears mentioning. If Congress legislates
with specificity and does not delegate forbearance authority to an agency, it
increases the likelihood that courts might help themselves to such power. Guido
Calabresi argues that judges should rather explicitly “overrule” statutory
provisions that have become obsolete, much as a common-law judge would overrule
a precedent.221
Less jarringly, William Eskridge suggests that judges should “update” statutes
to reflect changed circumstances through a process of “dynamic statutory
interpretation.”222 Of course,
agencies have an undoubted accountability advantage over courts.223 Thus, when
deciding whether power should be lodged in an agency or, as a practical matter,
fall instead to the courts, accountability concerns should generally favor the
agency approach. Another objection to agency forbearance authority is that it
facilitates agency capture, which can be broadly defined as agency action for
the benefit—and at the behest of—a special interest, often
industry.224 This has sometimes been expressed as
a problem of “favoritism.”225 Another
proregulatory variant on the objection is that forbearance allows the Executive
to achieve a kind of backdoor deregulation, in which statutory requirements
designed to benefit the public are eroded over time.226 Putting aside whether there is a problem of agency capture
generally,227
the capture critique of negative delegations is unpersuasive on several counts.
First, to the extent that it treats deregulation as synonymous with industry
interest, the critique is mistaken. Indeed, modern capture theory in its
original form stressed how industries used regulation itself—not the lack
of it—to advance their interests.228
Thus, the prescription for solving agency capture was often deregulation. On
this view, to remedy capture, agencies should abolish regulations that powerful
parties could use to suppress competition and innovation, such as entry
requirements and tariffing obligations.229
These are exactly the sorts of regulations that the FCC, one of the few
remaining industry-specific competition agencies, has targeted with its
forbearance authority. More recent analyses have accepted that capture can lead to
agency inaction or deregulation as well as to regulation.230
Thus, negative delegations might seem to grant agencies a potent tool for
engaging in action motivated by this “corrosive” form of capture, eroding not
only the agency’s own administrative regulations, but also statutory
requirements.231
This argument has a ring of plausibility, but whether
negative delegations facilitate corrosive capture is uncertain. Negative
delegations may actually combat some of the ills associated with such capture.
Imagine a relatively public-spirited legislature that wants to protect the
public from air pollution but is unsure of exactly how to do so.232
Such uncertainty is a classic reason the legislature might delegate
policymaking authority to an expert agency. However, the legislature may also
fear that the agency will underregulate, perhaps because of capture. One option
in such circumstances is to write stringent but crude requirements and allow
the agency to depart downwards—that is, to grant the agency forbearance
authority. That option allows the legislature to set relatively heavy-handed
default rules and place the burdens of inertia, explanation, and proof on the
party seeking relief from those requirements; at the same time, the legislature
can preserve some of the benefits associated with agency expertise.233
From the perspective of agency capture theory, such an option appears to be
superior to delegations of the positive variety, which allow agencies to
achieve underregulation through mere inaction.234 Such a dynamic actually appears to have motivated Congress in
its efforts to address hazardous air pollutant (HAP) regulation.235
Earlier environmental-regulation regimes allowed the EPA to determine which
pollutants would be regulated as HAPs, but the agency had been slow to identify
pollutants as HAPs.236 In response,
Congress switched the default rule, subjecting a laundry list of pollutants to
regulation while allowing the EPA to remove any of those pollutants from the
list.237
The resulting regime has not worked perfectly.238
However, it does show the potential for forbearance to facilitate tougher,
rather than weaker, legislation and to combat the potential for corrosive
agency capture.239 There is always a concern that an agency may use its
delegated authority to advance special interests, just as there is a concern
that Congress will use its legislative authority to do so. But negative
delegations to agencies do not necessarily present a special challenge in this
regard. Indeed, in the right circumstances, negative delegations may be able to
reduce the effects of capture on the administrative state. The prior Parts have sought to establish the general
propriety of forbearance-like delegations. They have argued that, as a
normative and legal matter, there is nothing particularly troubling about forbearance
as opposed to the more familiar agency authority to fill in the details of a
statutory scheme. This Part asks a slightly different question: as a policy
matter, when should Congress include
an administrative forbearance authority? The guidance provided is tentative and
incomplete; after all, the Article suggests throughout that Congress generally
should be able to decide when to include negative delegations in statutes, just
as it does with “normal,” positive delegations. Nevertheless, as with any type
of delegation, there are good and bad reasons that Congress might give agencies
forbearance authority. Section IV.A briefly considers some of those reasons. Section
IV.B then fleshes out the analysis by showing how forbearance authority might
have helped resolve two recent regulatory controversies. The most obvious context in which forbearance might be
beneficial is when Congress writes statutory requirements, expects that the
need for those requirements may recede over time, and predicts that an agency
will have better information about—and be more likely to adjust—the
statutory framework as needed. Because Congress may be uncertain about when or
even whether statutory obligations will become obsolete, other statutory
tools—such as sunset provisions—might be too crude. In the 1996
Telecommunications Act, for example, Congress had hoped that competition in
local telephone markets might someday obviate the need for heavy-handed,
prescriptive regulation, but it did not know when that day would come, or if it
ever would. The FCC seemed better positioned to make that determination. This
example highlights that in substantive areas of law characterized by rapid
technological change, statutes might be particularly likely to become outdated.240
However, it would be a mistake to conclude that statutory obsolescence is a
challenge unique to the regulation of high-tech markets. Indeed, it may be an
enduring feature of the administrative state.241 Congress also might beneficially use forbearance when it
believes that the statutes it writes are currently overbroad but
wants—for one reason or another—to set a proregulatory baseline
instead of letting an agency build from the ground up. The legislative response
to HAPs is an instructive example of this approach.242
Congress tried letting the EPA craft the list of pollutants to be regulated as
hazardous but, because of capture or otherwise,243
the agency did a bad job.244 Congress
then flipped the baseline by specifying which pollutants were to be regulated,
and it allowed the agency to subtract from the list if the substances included
did not actually pose health risks.245 Congress might also anticipate that future developments or
information might subject new entities to regulation under existing statutory
requirements that were not designed to address these novel entities. As
discussed above, granting an agency a forbearance option can potentially enable
sound regulation in such circumstances and can also allow the agency to deal
with uncertainty that arises while it decides what to do.246
The Congresses that wrote the Communications Act only dimly foresaw the rise
and importance of broadband Internet, and so it is not surprising that the Act
as written applies rather crudely to it.247
The history of greenhouse-gas regulation under the Clean Air Act, discussed
below,248
provides another example. Giving forbearance power to an agency preserves some
amount of flexibility to adapt old regulatory structures to changing
environments. All of the above scenarios may be more likely to occur in
statutes where a threshold definitional question—say, whether a product
is a “drug,” a substance is a “pollutant,” or a service is
“telecommunications”—triggers broad statutory consequences. Because so
much turns on a single determination, such situations likely pose a threat of
overbreadth that forbearance may mitigate. It is thus not surprising that many
of the existing examples of forbearance are contained within such statutes. Finally, a word about when we might be wary of Congress
including a forbearance-like delegation. With any kind of delegation, Congress
sometimes may not appear to be harnessing the advantages associated with agency
decision making; instead, it may be engaged in political buck-passing “in an
attempt to shift responsibility for the negative impacts of law to other
governmental branches.”249 That
buck-passing concern raises a question: in what situations might we be more
skeptical of Congress including a forbearance provision in a statute? At least
two dimensions to the answer warrant discussion here. First, as a matter of constitutional law, this Article’s
analysis suggests that judges should rarely strike down forbearance provisions.
Indeed, judges should invalidate negative delegations no more frequently than
they invalidate traditional positive delegations, which are almost always
upheld because the strong form of the nondelegation doctrine is essentially
moribund.250
The dilution of the nondelegation doctrine has occurred because of judicial administrability
concerns that disrupt any clean attempt to separate delegations passed for good
reasons from those passed for bad251
or to judge whether a particular delegation is simply too sweeping for purposes
of the intelligible-principle doctrine.252
Thus, outside of “extreme cases” where there appears to be no good reason to
delegate,253
courts should not nullify forbearance delegations as long as they contain an
intelligible principle, which can be quite broad.254 Second, however, to say that courts should not strike down
forbearance provisions is not to say that forbearance provisions do not raise
normative concerns in some circumstances. For one, the judicial administrability
concerns just mentioned may leave certain norms underenforced.255 Underenforcement is especially
concerning where, based on the breadth of the forbearance provision itself and
the surrounding circumstances, there does not appear to be a nexus between the
reasons for the forbearance decision and the underlying purposes of the
statutory requirements from which the agency will forbear. Suppose, for
example, that in a future Republican administration, a Republican Congress were
to pass the “Obamacare Forbearance Act,” providing that the President (or an
executive branch agency, such as the Department of Health and Human Services)
could permanently forbear from any provision of the Affordable Care Act,
provided that forbearance was in the public interest.256
Imagine further that circumstances demonstrated that support for the
forbearance provision was fueled by political opposition to the law itself, and
not by a belief that the law’s purposes would be effectuated best by allowing
an agency to tailor the Act’s requirements. In such circumstances, we might be
concerned that the forbearance provision in question was a kind of backdoor
repeal that had been designed merely to gain some relative political advantage.257 This disjunction between the constitutionally permissible and
the normatively desirable suggests a role for subconstitutional rules of interpretation.
Indeed, scholars have long invoked certain “nondelegation canons” to deal with
normative issues raised by broad delegations to agencies.258
Two rules of interpretation may be particularly useful for forbearance-like
delegations. The first rule of interpretation underlies the Supreme
Court’s opinion in MCI Telecommunications
Corp. v. AT&T: an agency may not exercise forbearance authority unless
Congress has granted it that authority using relatively clear language.259
That is, a forbearance power may not be lightly implied, at least where
forbearance would result in a “fundamental revision” of the regulatory scheme
enacted by Congress.260 Although MCI was murky about the basis for this
rule, this Article provides some arguments in its favor. When Congress
expressly includes a forbearance provision in the statute, the “unmaking deals”
and principal-agent objections discussed above are considerably weaker, as
Congress’s express inclusion of the provision makes clear that it intends the
forbearance power to be part of the legislative package. Requiring Congress to
be explicit about the power it gives to the agency also undercuts the “backdoor-repeal”
objection by making clear to outsiders that Congress may in fact be authorizing
the dismantling of a particular law. The second rule of interpretation relates to the nexus
between the reasons to forbear and the underlying purposes of the statute. If
possible, when reviewing agency forbearance decisions, courts should presume
that Congress intends the agency to consider the underlying purposes of the
statute when deciding whether to forbear.261
Of course, when Congress has required the forbearing agency to consider a list
of specific factors that relate to the purposes of the statute in question,
this likely will not be difficult. For example, the FCC’s forbearance provision
requires the Commission to consider factors related to competition and
consumers, the twin aims of most of the Communication Act’s protections.262
But if Congress speaks in broader language—say, allowing an agency to
forbear when it is in the “public interest”—courts should still presume
that the agency’s decision should be guided (though perhaps not exclusively) by
the purposes underlying the statute. Such a presumption would require agencies
to articulate more clearly how their decisions advance the goals of the statute
as a whole. It would minimize the dangers associated with a runaway Executive
negating the will of Congress. And it would reduce the risk that Congress and
the Executive could act in tandem to achieve a “backdoor repeal” of a duly enacted
statute. This Section imagines the role a forbearance authority might
have played—had one been held by an agency—in two recent
controversies: first, the debate over the continued validity of the VRA’s
preclearance provisions, and second, the debate over the EPA’s regulations
regarding greenhouse-gas emissions. A statutory forbearance power could have
led to better regulatory outcomes in both controversies and might have saved
the programs in question from (partial) judicial invalidation. Passed in 1965 as a response to decades of black
disenfranchisement, the VRA has several key provisions.263
The Act categorically bars voting practices intended to deny voting rights on
the basis of race.264 It also suspends certain kinds of
“test[s] or device[s]”265 in “covered
jurisdictions,”which were determined
according to a formula contained in section 4(b).266
As relevant here, section 5 of the Act subjected those covered jurisdictions to
a “preclearance” regime.267 Under that
regime, covered jurisdictions were required to seek permission for changes to
their voting laws from the Department of Justice or a three-judge panel of the
U.S. District Court for the District of Columbia; permission would be granted
if the covered jurisdiction demonstrated that the change had neither the
purpose nor effect of abridging the right to vote based on race.268 Section 4(b) of the original 1965 Act determined which
jurisdictions were “covered” based on whether they had been using a forbidden
test or device and had less than fifty percent voter registration or turnout in
the November 1964 election.269 As
originally enacted, the preclearance provisions of the VRA were set to expire
in five years,270 reflecting
the fact that, in the Supreme Court’s words, they were from the beginning “intended
to be temporary.”271 In addition,
and as fleshed out by subsequent amendments, otherwise covered jurisdictions
could “bail out” of section 5’s requirements under certain conditions.272 Congress reenacted the VRA in 1970, 1975, 1982, and 2006,
extending the preclearance provisions long past their original five-year
expiration date.273 The 1970 and
1975 reauthorizations updated the Act’s coverage formula to include election
data from the 1968 and 1972 elections, but they otherwise left the formula
unchanged.274
Subsequent reauthorizations did not alter the coverage formula either.275
By the late 2000s, covered jurisdictions—which included much of the
South—were still determined based on their characteristics some forty
years prior. Scholars have found much to criticize about the Supreme
Court’s decision in Shelby County v.
Holder, which concluded that the preclearance scheme—or, more
accurately, the statute’s coverage formula—had become unconstitutional.276
What cannot be doubted, however, is that America’s racial politics looked much
different in 2013 than in 1965.277 This fact
mattered to Shelby County’s
five-member majority. As pointed out by Chief Justice Roberts, in many
jurisdictions still covered by section 5, black and white voting rates were
near parity.278
And some evidence suggested that at least as of 2004, voting disparities were
greatest in certain northern states that were not required to seek
preclearance.279
For the majority, the fact that Congress had, in the face of these facts, acted
“as if nothing had changed” sealed the Act’s fate.280
As the Court explained, “Our country has changed, and . . . Congress must
ensure that the legislation it passes to remedy that problem speaks to current
conditions.”281 The difficult counterfactual is whether a more agency-focused
scheme—one that involved, at least in part, a congressional delegation of
the power to remove jurisdictions from section 5’s scope—would have done
a better job addressing the concerns that ultimately led the Court to
invalidate the VRA’s coverage formula.282
The germ of such a solution is already found in the Act’s “bailout” mechanism.283
But that mechanism, besides lodging bailout authority in the courts and not in
an agency, proved too rigid to provide meaningful relief in most cases.284
There are reasons to think that a more flexible delegation, in place of the
bailout mechanism and the continued cycle of congressional reauthorization,
might have blunted some of the main criticisms of the Act. The main impediment
to changing the coverage formula itself was political—namely, a fear that
“a debate over the coverage formula . . . would have led to the complete
unraveling of the bill.”285 Instead of
reauthorizing the Act for a finite period of time and including a bailout
mechanism, however, Congress instead could have reenacted the Act and given an
agency authority to designate a covered jurisdiction as no longer subject to
the preclearance process. This amendment might have allowed Congress to
sidestep the thorniest debates about the VRA while also creating a mechanism to
address the coverage formula’s purported overinclusiveness in light of changed
circumstances.286 By granting an agency the power to alter the coverage
formula, Congress could have potentially captured some of the benefits
associated with agency decision making surveyed above.287
An agency tasked with forbearance authority could have naturally developed
expertise bearing on whether the preclearance regime had become unnecessary or
counterproductive in a particular locality. An agency-focused solution also
would have been more flexible than either the sunset-and-reauthorization
regime, which depended on Congress, or the Supreme Court’s ultimate
nullification of the Act’s entire coverage formula. With forbearance authority,
the agency could have more quickly reversed course and reimposed preclearance
requirements if backsliding occurred. Forbearance authority also might have played a critical role
in the controversy over the EPA’s regulation of greenhouse-gas emissions. That
saga began with the Supreme Court’s decision in Massachusetts v. EPA, which held (among other things) that
greenhouse gases count as “air pollutants” for purposes of the Clean Air Act’s
mobile-source (i.e., motor-vehicle) provisions.288
On remand several years later, the EPA ruled that greenhouse-gas emissions from
mobile sources “may reasonably be anticipated to endanger both public health
and welfare,”289
a determination many saw as the inevitable result of the Court’s holding in Massachusetts.290 As soon as the EPA made an
endangerment finding, as it did on remand, emissions of greenhouse gases
automatically became subject to a comprehensive set of rules governing
emissions of such air pollutants from automobiles.291 The EPA’s regulation of mobile-source emissions also
triggered the regulation of greenhouse gases under several other parts of the
Clean Air Act, two of which proved especially relevant.292
First, under the Prevention of Significant Deterioration (PSD) program,
stationary sources emitting large amounts of pollutants regulated elsewhere
under the Act are subject to onerous preconstruction permitting requirements.293
Such sources include “any stationary source with the potential to emit 250 tons
per year of ‘any air pollutant’ (or 100 tons per year for certain types of
sources).”294
Second, Title V of the Act requires “major sources”—defined as sources
having the potential to emit one hundred tons or more per year of “any air
pollutant”—to obtain comprehensive operating permits295
that “facilitate compliance and enforcement by consolidating into a single
document all of a facility’s obligations under the Act.”296 The EPA’s determination that greenhouse gases were regulated
pollutants for purposes of mobile-source regulation thus required the agency to
regulate greenhouse gases under the PSD and Title V provisions as well, or so
the agency ruled.297 But the EPA
faced a problem. Because greenhouse gases are emitted at much higher levels
than are “classic” pollutants, the statutory triggers for the PSD and Title V
programs would pull in an enormous number of new stationary
sources—estimated at over six million, including many smaller,
nonindustrial sources—resulting in “undue costs for sources and
impossible administrative burdens for permitting authorities.”298
The EPA thus decided to “tailor” those triggers, subjecting only those
otherwise unregulated sources emitting at least one hundred thousand tons of
greenhouse gases to eventual regulation under the PSD program and Title V, with
the possibility of lowering that threshold at a later date.299
That determination exempted many sources facially subject to regulation under
the Clean Air Act from the Act’s scope. The appeal from the EPA’s greenhouse-gas regulations
eventually reached the Supreme Court in Utility
Air Regulatory Group (UARG) v. EPA.300
In an opinion authored by Justice Scalia, who had dissented in Massachusetts, the Court vacated the
EPA’s treatment of stationary sources that would have been unregulated under
the Act but for their greenhouse-gas emissions.301
The Court reasoned that the EPA was correct that regulating greenhouse gases
from sources emitting amounts exceeding the statutory thresholds would have
created intolerable and indeed absurd results.302
However, the Court said, that did not mean that the EPA had authority to
“tailor” those thresholds as it saw fit. Indeed, Justice Scalia described this
kind of tailoring authority as a power “to alter [the Act’s] requirements and
to establish with the force of law that otherwise-prohibited conduct will not violate
the Act.”303
The Court then suggested that the intolerable and absurd results stemming from
EPA’s regulatory efforts meant that the EPA’s interpretation of air pollutant
as encompassing greenhouse gases in the context of the PSD and Title V programs
was unreasonable.304 The Court
thus invalidated that interpretation, finding that the EPA went beyond its
statutorily delegated authority in reading the phrase air pollutant—at
least as used in the Clean Air Act’s PSD and Title V provisions—to
include greenhouse gases.305 UARG was a curious
case. In Massachusetts, the Court
heldthat its interpretation of air
pollutant was mandated in the context
of mobile-source regulation, but that interpretation was affirmatively forbidden in other statutory contexts.306
Nevertheless, the EPA’s chosen solution—effectively rewriting the statute
to exempt certain sources—suffered from its own infirmities, most notably
the lack of any clear source of statutory authority to do so. As Justice Scalia
pointed out, an agency’s general powers do not “include a power to revise clear
statutory terms that turn out not to work in practice.”307 A forbearance-like statutory authority to remove the Clean
Air Act’s requirements for certain categories of sources, had one been
available, might have provided a straightforward solution to the conundrum
faced by both the EPA and the courts following Massachusetts. Indeed, the Court’s opinion in UARG can be read to endorse just such a power.308
By wielding it, the EPA could have simultaneously recognized greenhouse gases
to be “pollutants” wherever that term appeared in the statute while blunting
the extreme results that rendered this interpretation unreasonable in the
Court’s eyes. The agency thus could have created a regulatory regime that was
more rational, coherent, and protective of the environment than the one left in
the wake of UARG’s holding. This Article elaborates the normative and constitutional case
for administrative forbearance authority, which empowers agencies to deprive
statutory provisions of their legal force and effect. It makes two principal
contributions to the growing literature on such authority. First, the Article
describes how forbearance might be used and the various functions it might
perform, drawing on examples from agencies that already have a forbearance
power. Second, from that descriptive account, the Article sketches a normative
and constitutional defense of agency forbearance authority. That analysis is
necessarily comparative. It asks whether the traditional justifications for
delegation of positive policymaking authority apply to negative delegations, as
well. As this Article suggests, the answer is yes. Forbearance also might
substitute for other forms of agency action, such as nonenforcement practices,
that are for various reasons more troubling. Finally, the Article argues that
the criticisms that may be lodged against forbearance authority are actually
just generic objections to agency delegations and, in many cases, apply with
less force to delegations of the negative type. Thus, where the alternative is
delegation of the more open-ended, positive variety, even critics of delegation
generally should find some comfort in administrative forbearance.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
President Obama, for example, called on the FCC to take such action in November 2014. See Net Neutrality: President Obama’s Plan for a Free and Open Internet, White House, http://www.whitehouse.gov/net-neutrality [http://perma.cc/3LB7-N7QF]. The President and others believe that, by reclassifying broadband ISPs, the Commission can (among other things) craft a set of strong “net-neutrality” rules designed to prevent ISPs from using their networks to favor certain Internet content providers over others. For more on net neutrality, see infra note 121 and accompanying text.
Although I will refer to such an authority as “forbearance authority,” it goes by different names in different statutory contexts. I will also refer occasionally to “negative” delegations when distinguishing forbearance from the more traditional, “positive”-type delegations by which an agency is given authority to create legal rules or define the subjects of regulation. See R. Craig Kitchen, Negative Lawmaking Delegations: Constitutional Structure and Delegations to the Executive of Discretionary Authority To Amend, Waive, and Cancel Statutory Text, 40 Hastings Const. L.Q. 525 (2013). A further terminological complexity involves the relationship between forbearance and “waiver” or “variance.” See infra notes 30-33 and accompanying text (discussing differences between forbearance and traditional forms of agency waiver or variance authority).
Most importantly, David Barron and Todd Rakoff’s article, In Defense of Big Waiver, in addition to drawing attention to the phenomenon, delineates the reasons—largely sounding in considerations of political economy—that negative delegations play an increasingly important role in congressional lawmaking. See David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265 (2013). Barron and Rakoff also argue that such delegations are generally constitutional under their reading of controlling Supreme Court precedent. However, their article does not examine the various uses that forbearance serves in the hands of an agency. For that reason, their work does not engage in the type of functional defense of forbearance—focusing on the comparative advantages of agency decision making—that I argue is important to its normative and constitutional status. See infra notes 63-66 and accompanying text (discussing Barron and Rakoff’s article in greater detail). Similarly, two other pieces defend forbearance-like authority in particular contexts but do not engage in a full analysis of such a power based on the traditional administrative-law justifications for delegating authority to agencies. See Samuel R. Bagenstos, Federalism by Waiver After the Health Care Case, in The Health Care Case: The Supreme Court’s Decision and Its Implications 124 (Gillian Metzger et al. eds., 2013); Jonathan H. Adler, Let Fifty Flowers Bloom: Transforming the States into Laboratories of Environmental Policy, AEI Federalism Project (2001), http://heartland.org/sites/default/files/let_fifty.pdf [http:// perma.cc/43X5-ALEH]. Both pieces are largely concerned with the vertical-federalism implications of forbearance, an issue I largely will bracket.
See, e.g., Util. Air Regulatory Grp. v. EPA (UARG), 134 S. Ct. 2427, 2466 (2014) (vacating partly the EPA’s greenhouse-gas rules and reaffirming “the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate”); Texas v. United States, No. B-14-254, 2015 WL 648579, at *50 (S.D. Tex. Feb. 16, 2015) (enjoining President Obama’s immigration initiatives and stating that the President’s policies do “not represent mere inadequacy” in enforcing the immigration statutes but rather “complete abdication” of its statutory responsibility); Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781 (2013); Jeffrey A. Love & Arpit K. Garg, Presidential Inaction and the Separation of Powers, 112 Mich. L. Rev. 1195 (2014); Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 673 (2014).
See Karen Kaplan, Romney Says He’ll Undo Obama Healthcare Reform on Day 1. Can He?, L.A. Times (Oct. 30, 2012), http://articles.latimes.com/2012/oct/30/news/la-heb-president -romney-affordable-care-act-20121030 [http://perma.cc/L5JZ-UPEU].
“Broad strokes” is important here. Negative delegations will often introduce a kind of two-way ratchet, under which the agency has authority both to flesh out the statutory requirements themselves and to dispense with those requirements altogether. The Communications Act, which contains a number of specific requirements and an equal or greater number of capacious ones allowing broad agency discretion, is a good example. For most of the analysis below, what is important is that forbearance allows the agency to reduce requirements below the statutory minima, however insubstantial they may be.
David Post, Can a Federal Agency Declare “Regulatory Bankruptcy”?, Volokh Conspiracy (Oct. 2, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/02 /can-a-federal-agency-declare-regulatory-bankruptcy [http://perma.cc/JQS8-25RM].
U.S. Const. art. I, § 7, cl. 2; see Hamburger, supra note 12, at 120-27 (condemning agencies’ power to suspend provisions of the law); Kitchen, supra note 4 (considering the constitutionality of such delegations and concluding that they are, in fact, unlawful). Previous work has considered similar questions in the specific context of the Line Item Veto Act. See, e.g., Lawrence Lessig, Lessons from a Line Item Veto Law, 47 Case W. Res. L. Rev. 1659 (1997); Thomas O. Sargentich, The Future of the Item Veto Act, 83 Iowa L. Rev. 79 (1997); see also infra Section I.B (discussing the Line Item Veto Act).
See, e.g., Hamburger, supra note 12, at 127; Bagenstos, supra note 5, at 236 (“Liberal critics express concern for statutory erosion. They contend that waivers have been used to undermine hard-won statutory requirements that would otherwise bind states to provide important services to less privileged and less empowered individuals and communities.”); Kitchen, supra note 4, at 584 (“Negative lawmaking by the executive . . . is also problematic because it allows for favoritism and unequal application of the law.”); Kitchen, supra note 4, at 586 (worrying that negative delegations allow “presidential policy to override the difficult policy compromises reflected in statutory text”).
Richard A. Epstein, Government by Waiver, Nat’l Aff. 40 (2011), http://www.nationalaffairs .com/doclib/20110317_epstein.pdf [http://perma.cc/YLQ4-QB74].
See generally Freeman & Spence, supra note 7, at 15-16 (“[T]he current partisan and ideological makeup of Congress renders [regulatory legislative] action much less likely, all else equal, than at any time in the modern regulatory era.”); Greve & Parrish, supra note 7, at 502 (arguing that Congress “consistently fails to update or revise old statutes even when those enactments are manifestly outdated or, as actually administered, have assumed contours that the original Congress never contemplated and the current Congress would not countenance”); Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804 (2014) (attempting to “diagnos[e] the causes of government’s limited capacity to function effectively”).
See Michael Sant’Ambrogio, The Extra-Legislative Veto, 102 Geo. L.J. 351 (2014) (exploring situations in which the Executive exercises a postenactment “veto” over legislation); infra notes 158-161 and accompanying text (expanding on the issue of Executive enforcement discretion)See generally Freeman & Spence, supra note 7 (discussing congressional dysfunction and its relationship to agency policymaking).
See, e.g., Freeman & Spence, supra note 7, at 5 (“Our point is simply that typical statutory obsolescence made worse by atypical congressional dysfunction puts tremendous pressure on agencies to do something to address new problems, making that central challenge all the more acute.” (emphasis omitted)); Greve & Parrish, supra note 7, at 503 (“Knowing that there is no going back to Congress, agencies will be tempted to improvise policies lacking congressional authority, sometimes well beyond the limits of their organic statutes and of conventional legal canons.”).
See, e.g., Memorandum from the Office of Legal Counsel to the Sec’y of Homeland Sec. & the Counsel to the President (Nov. 19, 2014), http://www.justice.gov/sites/default/files/olc /opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf [http://perma.cc /ML85-FFDK]; Jack Balkin, Symposium on Administrative Reform of Immigration Law—Collected Posts, Balkinization (Nov. 26, 2014, 5:42 PM), http://balkin.blogspot.com/2014/11 /symposium-on-administrative-reform-of_26.html [http://perma.cc/9AJR-G28Z].
This power would allow agencies to essentially take portions of statutes off the books by rendering them legally unenforceable. Agencies might exercise such a power in a variety of ways, depending on how the delegatory provision is worded. Agencies might be able to exercise such a power broadly, declaring a particular provision inoperative in all cases. Or the power might be exercised to exempt only a particular class of regulated entities or persons from the law’s scope. For example, a statute might instruct that the EPA shall regulate greenhouse-gas emissions, but simultaneously allow the EPA to render that requirement inapplicable to certain classes or categories of polluters.
Of course, there may be difficult issues at the border, such as when a “waiver” or “variance” provision is so broadly written that it may be used, in effect, to forbear from a requirement in toto. Indeed, forbearance is defined by its functional characteristics and not its label, which has varied widely across statutes. Barron and Rakoff deal with this issue by distinguishing between “little waiver” and “big waiver,” the latter category closely resembling what I am calling forbearance. See Barron & Rakoff, supra note 5, at 276-78. For reasons of clarity, I have chosen not to employ their terminology. Because forbearance differs from traditional waiver and variance powers in important ways, labeling it as a form of waiver risks confusion.
See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (“[W]e repeatedly have said that when Congress confers decision-making authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’” (second alteration in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928))).
Here is another way of articulating the same point. In the hypothetical above, Congress is not really saying that the agency “shall” regulate greenhouse gases when it simultaneously gives the agency authority to dispense with regulation altogether. Instead, Congress is giving the agency authority either to regulate greenhouse gases or not, but the legal rule is designed so that regulation is the default state until the agency acts.
Id. at 436. The President had to cancel provisions within five days of signing a bill, and had to make certain determinations—namely, that the exercise of his authority would “reduce the Federal budget deficit,” “not impair any essential Government functions,” and “not harm the national interest”—regarding the canceled items. Id. (quoting 2 U.S.C. § 691(a)(3) (Supp. II 1994)). The canceled items would then be deprived of “‘legal force or effect,’” unless the majority of both Houses passed a “disapproval bill” disapproving of the cancellations. Id. at 437 (quoting 2 U.S.C. § 691e(4)(B)-(C) (Supp. II 1994)).
See Barron & Rakoff, supra note 5, at 315-18. In addition, other aspects of the Act may have appeared as uniquely nefarious end-runs around constitutionally required lawmaking procedures. For instance, the President could nearly simultaneously sign a bill and then cancel various provisions, and the Act called the cancellation mechanism a Line Item Veto. See Clinton, 524 U.S. at 469 (Scalia, J., dissenting) (“The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court.”).
See id. (“[W]hen enacting the statutes discussed in Field, Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President.”).
Other parts of Hamburger’s argument cut more broadly against positive as well as negative delegations and would, if accepted, lead to the dismantling of much of the administrative state. For a critique of various aspects of Hamburger’s argument, see Adrian Vermeule, No, 93 Tex. L. Rev. 1547 (2015) (reviewing Hamburger, supra note 12). But Hamburger gives particular reasons for why forbearance-like delegations are unconstitutional, reasons that might be accepted without necessarily accepting Hamburger’s broader critique. The point here is only that there is no particular reason to reject forbearance-like delegations as opposed to any other kind of delegation.
See Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405, 464 (2008) (“[C]ontemporary debate about delegations of lawmaking authority tends to have less to do with doctrine than with the practical necessity and desirability of the administrative model.”); see also Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2158 (2004) (“The policies that have been advanced in support of broad delegation provide significant support for lax delegation relative to strict nondelegation.”); Rafael I. Pardo & Kathryn A. Watts, The Structural Exceptionalism of Bankruptcy Administration, 60 UCLA L. Rev. 384, 423 (2012) (“[C]ourts have routinely condoned relatively standardless delegations of policymaking authority to agencies (and have been willing to give the nondelegation doctrine no more than lip service) because of functionalist considerations that make agencies well suited to receive and exercise delegations of policymaking power.”). See generally Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 148-57 (1997) (discussing the benefits of decision making by agencies); David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 Geo. L.J. 97 (2000) (providing an argument, grounded in the language of public choice, for delegating policymaking authority to agencies). The conclusion that positive delegations are supported by functional considerations is often paired with a concern that judicial efforts to police the boundaries of lawful congressional delegation will prove unworkable because some amount of executive policymaking discretion is inevitable. See, e.g., Lemos, supra, at 443 (“The tradition of nonenforcement often is explained on the ground of judicial (in)competence.”); see also Martin H. Redish, The Constitution as Political Structure 136 (1995) (“[T]hose in charge of enforcement of a statute will necessarily have to exercise a certain degree of latitude and discretion in deciding exactly when and how to apply the broader legislative directive to a specific set of circumstances. At what point that latitude unconstitutionally spills over into the category of legislation, rather than merely execution, will not always be obvious.”).
Pardo & Watts, supra note 58, at 423. This particular conception of the Congress-agency partnership was evident as early as J.W. Hampton, Jr., & Co. v. United States, where the Supreme Court first articulated the modern version of the intelligible principle standard. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928). There, in upholding Congress’s delegation to the Executive of the power to fix tariffs for certain goods, the Court remarked that “Congress seems to have doubted that the information in its possession” was sufficient to set rates by itself and that Congress had also “apprehended that . . . changing conditions” might make adjustments to the rates necessary. Id. at 404-05. Turning to the constitutionality of Congress’s choice, the Court stated that “[i]n determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.” Id. at 406; see also id. at 407-08 (“If Congress were to be required to fix every rate, it would be impossible to exercise the power at all. Therefore, common sense requires that in the fixing of such rates, Congress may provide a Commission . . . to fix those rates . . . all in accord with a general rule that Congress first lays down, that rates shall be just and reasonable considering the service given, and not discriminatory.”). The Court thought that the greater expertise, information, and flexibility of the executive branch were plainly relevant to the constitutional nondelegation inquiry.
See, e.g., Merrill, supra note 58, at 2154 (assuming a model of delegation in which “Congress hands over authority to agencies to determine the details of policy”); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1695 (1975) (stating that “[i]n many government endeavors it may be impossible in the nature of the subject matter to specify with particularity the course to be followed,” and that in those situations agencies will frequently be called upon as the primary regulators).
As the authors themselves state, the “historical forces” they say facilitate the rise of forbearance-like delegations do not necessarily “provide a normative justification,” and may even suggest that forbearance “is a dangerous innovation.” Id. at 309. Nevertheless, Barron and Rakoff argue that forbearance may enable an “effective, engaged, and democratically responsive administrative state,” a result they favor. Id. at 310.
Cf. Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1751 (2002) (arguing, in the context of positive delegations, that all of the constitutional values served by Article I, Section 7 “are formally protected because the delegatory statute itself must go through bicameralism and presentment” (emphasis omitted)). In addition, as a purely formal matter, negative delegations do not violate Article I, Section 7 because, as Saikrishna Prakash has observed in the context of the Line Item Veto Act, “The Clause speaks to what Congress must do, not what lawmaking authority Congress may cede to the Executive Branch” and that “laws may be canceled outside of bicameralism and presentment because the cancellation delegation is itself an element of the law—a law that came about through bicameralism and presentment.” Saikrishna Bangalore Prakash, Deviant Executive Lawmaking, 67 Geo. Wash. L. Rev. 1, 35-36 (1998). Kitchen, who argues that forbearance-like delegations violate bicameralism and presentment requirements, himself seems to recognize this point, and thus frames his argument against forbearance largely in terms of the “values” associated with bicameralism and presentment and not in terms of the constitutional text itself. See Kitchen, supra note 4, at 589-92; see also infra Section III.C (responding in greater depth to some of Kitchen’s arguments).
47 U.S.C. § 160(a). Those conditions are that:
(1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory;
(2) enforcement of such regulation or provision is not necessary for the protection of consumers; and
(3) forbearance from applying such provision or regulation is consistent with the public interest.
Id. § 160(a)(1)-(3).
See, e.g., EarthLink, Inc. v. FCC, 462 F.3d 1, 8 (D.C. Cir. 2006) (holding that “no particular mode of market analysis” is required of the Commission in making its forbearance determinations). Carriers may petition the FCC to exercise its forbearance authority, and the Commission has one year—with the possibility of a ninety-day extension—to reach a decision on such a forbearance petition. 47 U.S.C. § 160(c).
On changed circumstances generally, see, for example, Guido Calabresi, A Common Law for the Age of Statutes (1982), which argues that the increasing “statutorification” of American law has resulted in a profusion of legal requirements that are out of step with current society. See also Freeman & Spence, supra note 7, at 2-3 (discussing how agencies respond to Congress’s failure to update old statutes).
In particular, the 1970s saw new forms of long-distance communications technology, such as MCI’s microwave-relay system, which undermined both the belief that long-distance telephone markets would remain dominated by a single firm and also the policies based on that belief, such as mandatory tariffing of long-distance services. See Jonathan E. Nuechterlein & Philip J. Weiser, Digital Crossroads: Telecommunications Law and Policy in the Internet Age 44-46 (2d ed. 2013) (chronicling MCI’s rise as a competitor to AT&T). See generally Policy & Rules Concerning Rates for Competitive Carrier Servs. & Facilities Authorizations Therefor, 99 F.C.C.2d 1020, 1022 (1985) (canceling all forborne carrier tariffs due to an increase in competition), vacated, MCI Telecomms. Corp. v. FCC, 765 F.2d 1186 (D.C. Cir. 1985); Scott M. Schoenwald, Regulating Competition in the Interexchange Telecommunications Market: The Dominant/Nondominant Carrier Approach and the Evolution of Forbearance, 49 Fed. Comm. L.J. 367 (1997) (tracing the history of forbearance prior to the 1996 Telecommunications Act).
See S. Rep. No. 103-367, at 117 (1994) (noting that the “[p]rovisions of S. 1822 seek directly to reverse” the Supreme Court’s decision in MCI); 141 Cong. Rec. 15,016, 15,106 (1995) (statement of Sen. Pressler) (“The Federal courts have ruled that the FCC cannot deregulate. This bill solves that problem and makes deregulation legal and desirable.”); see also Schoenwald, supra note 78, at 449-52 (describing Congress’s “resolution of the forbearance issue”).
See id. at 496-97. For years the FDA attempted to evade literal application of the Clause, but, in Public Citizen v. Young, the D.C. Circuit concluded that the Clause allowed for no de minimis exceptions. Public Citizen v. Young, 831 F.2d 1108 (D.C. Cir. 1987); see also Richard A. Merrill, FDA’s Implementation of the Delaney Clause: Repudiation of Congressional Choice or Reasoned Adaptation to Scientific Progress?, 5 Yale J. on Reg. 1 (1988) (discussing the history of the FDA’s regulatory efforts with respect to the Delaney Clause); Sunstein, supra note 76, at 497 (criticizing the Young decision as overly rigid).
47 U.S.C. § 251(c)(3). See generally Nuechterlein & Weiser, supra note 78, at 58-66 (describing the unbundling obligation imposed by the 1996 Act and the FCC’s efforts to implement it). That the forced leasing requirement (known as network “unbundling”) proved controversial is unsurprising. See Howard A. Shelanski, A Comment on Competition and Controversy in Local Telecommunications, 50 Hastings L.J. 1617, 1621 (1999) (“It is one thing to tell incumbent firms that competitors will be allowed into their markets; it is another issue altogether to tell them that they must cooperate, against their interests and for little if any profit, with those very competitors.”). The controversy was heightened by the FCC’s decision to adopt a forward-looking pricing methodology that many incumbent carriers felt resulted in unfairly low leasing rates. See Nuechterlein & Weiser, supra note 78, at 60 (describing the FCC’s “total element long-run incremental cost” pricing methodology). Controversy over whether certain network elements were subject to unbundling and at what rates generated nearly a decade of litigation. See, e.g., Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 523 (2002) (upholding the FCC’s pricing methodology); Covad Commc’ns Co. v. FCC, 450 F.3d 528, 531 (D.C. Cir. 2006) (upholding the Commission’s fourth attempt to describe which elements of the incumbent’s network were subject to unbundling).
See Nuechterlein & Weiser, supra note 78, at 192. See generally Blaine Bassett, The Inevitable Television Revolution: The Technology Is Ready, the Business Is Lagging, and the Law Can Help, 29 Syracuse J. Sci. & Tech. L. 1, 8-9 (2013) (describing the rise of cable television); Kevin Werbach, No Dialtone: The End of the Public Switched Telephone Network, 66 Fed. Comm. L.J. 203 (2014) (discussing the ongoing transition from legacy telephone services to VoIP alternatives).
See Howard A. Shelanski, Adjusting Regulation to Competition: Toward a New Model for U.S. Telecommunications Policy, 24 Yale J. on Reg. 55, 69 (2007); see also U.S. Telecom Ass’n v. FCC, 290 F.3d 415, 427 (D.C. Cir. 2002) (“Each unbundling of an element imposes costs of its own, spreading the disincentive to invest in innovation and creating complex issues of managing shared facilities.”); Henry E. Smith, Governing the Tele-Semicommons, 22 Yale J. on Reg. 289 (2005) (discussing governance issues related to forced network sharing).
Id. at 19454. In 2007, the Commission again granted unbundling relief to the local telephone company in Anchorage, Alaska using similar reasoning. See Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Commc’ns Act of 1934, as Amended, for Forbearance from Sections 251(c)(3) & 252(d)(1) in the Anchorage Study Area, 22 FCC Rcd. 1958 (2007). The FCC has considered, but has ultimately rejected, several subsequent petitions seeking relief from unbundling requirements. See Petition of Qwest Corp. for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phx., Ariz. Metro. Statistical Area, 25 FCC Rcd. 8622 (2010); Petitions of Qwest Corp. for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul, Phx., & Seattle Metro. Statistical Areas, 13 FCC Rcd. 11729 (2008); Petitions of the Verizon Tel. Cos. for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Bos., N.Y., Phila., Pittsburgh, Providence & Va. Beach Metro. Statistical Areas, 22 FCC Rcd. 21293 (2007)See generally John Meisel, The Evolution of Federal Communications Commission Forbearance Orders: From Omaha to Phoenix, 20 CommLaw Conspectus 323 (2012) (chronicling the shift in the FCC’s approach to exercising forbearance in the unbundling context).
See, e.g., 15 U.S.C. § 77z–3 (2012) (allowing the SEC to “by rule or regulation . . . conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of this subchapter . . . .”); see also 15 U.S.C. § 78mm (providing the SEC with similar authority); 17 C.F.R. § 240 (2015) (collecting sources of exemptive authority).
See Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 Tex. L. Rev. 479, 486 (2013) (arguing that, in a recent case, “when faced with the choice between semantic meaning and statutory purpose . . . the Court chose semantic meaning unanimously”); see also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.”).
See Nuechterlein & Weiser, supra note 78, at 137; see also Implementation of Sections 3(n) and 332 of the Commc’ns Act: Regulatory Treatment of Mobile Servs., 9 FCC Rcd. 1411, 1414-17 (1994) (describing the history of FCC regulation in this area). There were approximately eighteen million wireless subscribers in 1993. John W. Berresford, Amendments to Section 332—Mobile Radio, in The Communications Act: A Legislative History of the Major Amendments, 1934-1996, at 106 (Max D. Paglin ed., 1999).
Id. As the Conference Report accompanying the 1993 amendments stated, Congress “intend[ed] to give the Commission the flexibility to determine whether or not the enforcement of these provisions [was] necessary, in light of their significance to consumers.” H.R. Rep. No. 103-213, at 491 (1993) (Conf. Rep.), as reprinted in 1993 U.S.C.C.A.N. 1088, 1180. The Commission was barred, however, from making obligations located in sections 201 and 202 of the Act inapplicable to mobile carriers. 47 U.S.C. § 332(c)(1)(A); see also Berresford, supra note 104, at 107 (“Commercial mobile services, from their inception, had exhibited a degree of rivalry that was sadly absent from the [Plain Old Telephone Service] part of the commercial telecommunications business.”).
For a real-world example of such a scenario, consider the Federal Food, Drug, and Cosmetic Act, which grants the FDA authority to regulate “drugs.” 21 U.S.C. § 321(g) (2012). The agency receives Chevron deference concerning whether substances qualify as drugs under the statutory definition. An FDA determination that a substance qualifies as a drug triggers various statutory requirements, including possible removal from the market. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126, 132, 134-35 (2000).
See supra note 1 and accompanying text; see also Rebecca R. Ruiz, F.C.C. Sets Net Neutrality Rules, N.Y. Times (Mar. 12, 2015), http://www.nytimes.com/2015/03/13/technology/fcc -releases-net-neutrality-rules.html [http://perma.cc/76KC-3W9T] (discussing potential legal challenges to the FCC’s decision).
The core of most net-neutrality proposals is a ban on “priority-tiering” or paid prioritization agreements, which are “contractual deals between broadband networks and Internet content providers for favored treatment over [the ISP’s] platform.” Nuechterlein & Weiser, supra note 78, at 198, 205. Net-neutrality proponents fear that without such a prohibition, ISPs may privilege certain content providers and disfavor others. See, e.g., Barbara van Schewick, Internet Architecture and Innovation 218-19 (2010); Barbara van Schewick, Towards an Economic Framework for Network Neutrality Regulation, 5 J. on Telecomm. & High Tech. L. 329, 332 (2007); Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. on Telecomm. & High Tech. L. 141, 141-42 (2003).
The FCC’s prior attempts to enforce net-neutrality obligations had failed in the courts. See Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (striking down the FCC’s attempt to impose net-neutrality rules under section 706 of the Telecommunications Act of 1996); Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) (invalidating the FCC’s attempt to regulate net neutrality under its “ancillary” authority). The FCC’s Title II reclassification order is currently on appeal. See Brett Kendall, Appeals Court To Hear Arguments Over FCC’s Net-Neutrality Rules, Wall St. J. (Aug. 3, 2015), http://www.wsj.com/articles/appeals-court-to -hear-arguments-over-fccs-net-neutrality-rules-1438640757 [http://perma.cc/2MJ5-R6XB].
For example, Howard Shelanski, currently the head of OMB’s Office of Information and Regulatory Affairs (OIRA), has observed that retail-price regulation is used only in relatively rare situations, such as when a monopolist is unlikely to face competition because of significant barriers to market entry. See Howard A. Shelanski, Adjusting Regulation to Competition: Toward a New Model for U.S. Telecommunications Policy, 24 Yale J. on Reg. 55, 64-65 (2007). Outside such situations, the costs associated with ex ante price regulation normally outweigh any benefits. See id. at 84-99.
See, e.g., Austin Schlick, A Third-Way Legal Framework for Addressing the Comcast Dilemma, Fed. Comm. Commission 8 (May 6, 2010), https://apps.fcc.gov/edocs_public/attachmatch /DOC-297945A1.pdf [https://perma.cc/84NE-JKEK]; see also Nuechterlein & Weiser, supra note 78, at 236 (discussing Schlick’s argument and related FCC actions).
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”).
See, e.g., Report & Order & Further Notice of Proposed Rulemaking, Rural Call Completion, 28 FCC Rcd. 16154, 16172 n.101 (2013) (“The Commission has not determined whether VoIP services should be classified as ‘telecommunications services’ or ‘information services’ under the Communications Act, and we do not decide that issue here.”)See generally Marc Elzweig, D, None of the Above: On the FCC Approach to VoIP Regulation, 2008 U. Chi. Legal F. 489 (chronicling the history of the FCC’s treatment of VoIP).
See generally Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458 (2009) [hereinafter Cox & Rodríguez, The President and Immigration Law] (describing how immigration law involves significant de facto delegation of policymaking to the Executive through enforcement discretion); Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law Redux, 125 Yale L.J. 104 (2015) (noting the continuation of this trend).
See, e.g., Lemos, supra note 58, at 445; Pardo & Watts, supra note 58, at 424 (“One of the main factors supporting congressional delegations of broad policymaking power to agencies is that agencies possess specialized expertise.”); Spence & Cross, supra note 58, at 135; Matthew C. Stephenson, Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J.L. Econ. & Org. 469, 469 (2007) [hereinafter Stephenson, Bureaucratic Decision Costs]; Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 Harv. L. Rev. 1422, 1440-41 (2011) [hereinafter Stephenson, Information Acquisition]. See generally Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 442, 444 (1987) (discussing the “New Deal belief in the importance of technical expertise” and the corresponding push toward giving agencies “a large measure of autonomy”).
Consider, for example, whether the FCC should continue to require long-distance telephone carriers to file tariffs under the Communications Act. See supra notes 77-80 and accompanying text. That determination depends on the answers to several complex questions. How competitive are long-distance markets? Is tariffing impeding further competition by deterring entry into the market? Does tariffing facilitate leader-follower pricing in long-distance markets to the detriment of consumers? Will eliminating tariffing impede the FCC’s ability to monitor industry practices and allow carriers to charge supracompetitive rates? When it comes to answering these questions, the FCC is likely the government actor with the most expertise.
The exact role politics should play in agency decision making is contested. See, e.g., Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 54-64 (describing the “problem of politicized expertise”); Kagan, supra note 42 (generally defending presidential involvement in agency decision making); Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2 (2009) (arguing that “political” considerations should rightfully influence agency decision making in certain situations).
Normally, the fact that otherwise expert agencies might sometimes engage in politics is not a reason to prohibit Congress from delegating authority to them. Rather, the risk that the Executive’s political preferences might diverge from Congress’s is simply a factor that Congress should consider when deciding whether and how broadly to delegate in the first instance. See Stephenson, Information Acquisition, supra note 142, at 1440 (noting that a principal such as Congress should be “willing to delegate more discretion to an agent with expected policy preferences similar to the principal’s own”).
Pardo & Watts, supra note 58, at 443; see also Lemos, supra note 58, at 453 (“A final argument in favor of agency lawmaking—and nonenforcement of the nondelegation doctrine—is that agencies are better able than Congress to adapt rules to respond to new information or changed circumstances”); Stephenson, supra note 148, at 139 (“Flexibility, like expertise, is often invoked to justify delegation of substantive policy choices to agencies.”).
See Pardo & Watts, supra note 58, at 443; see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-16 (2009) (rejecting heightened judicial review for agency policy reversals); Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863-64 (1984) (upholding agencies’ power to change interpretations of the statutes they administer).
See Yair Listokin, Learning Through Policy Variation, 118 Yale L.J. 480, 483-84 (2008); see also Zachary J. Gubler, Experimental Rules, 55 B.C. L. Rev. 129 (2014) (encouraging agencies to adopt experimental rules); Stephenson, Information Acquisition, supra note 142, at 1429 (“In some cases, a policymaker might implement a pilot program that, while not itself cost justified, will generate useful empirical information that can then be used in the formulation of more general public policy.”).
See Kate Andrias, The President’s Enforcement Power, 88 N.Y.U. L. Rev. 1031, 1035 (2013); Love & Garg, supra note 8, at 1197-99 (providing examples of how the Executive uses enforcement policies to pursue substantive policy goals); Price, supra note 8, at 674 (“[T]he practice of executive policymaking through nonenforcement stretches back across recent administrations.”); Daniel T. Deacon, Note, Deregulation Through Nonenforcement, 85 N.Y.U. L. Rev. 795 (2010). Several slightly older works pursued similar themes. See, e.g., Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004); 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 (2003); Ruth Colker, Administrative Prosecutorial Indiscretion, 63 Tul. L. Rev. 877 (1989).
Id. Recent controversies have vividly displayed such power in action. After the DREAM Act, which would have protected certain younger persons from deportation, failed to pass Congress in 2010, the Obama Administration implemented several of the Act’s key provisions through nonenforcement policies. See Delahunty & Yoo, supra note 8, at 788-91. Using nonenforcement to implement substantive policy goals is by no means limited to immigration law or to Democratic administrations. As one example, President George W. Bush was accused of implementing deregulatory policies concerning coal-fired power plants through nonenforcement practices after having those same policies struck down by the courts when done through rulemaking. See Deacon, supra note 158, at 811-13.
Some of these reasons echo the explanations scholars have given for preferring policymaking through rulemaking instead of adjudication. See, e.g., Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 812 (2013) (“Adjudication . . . allows agencies to conduct policymaking in a less visible form than rulemaking.”).
See Price, supra note 8, at 705 (“[C]ategorical nonenforcement for policy reasons usurps Congress’s function of embodying national policy in law; it effectively curtails the statute that Congress enacted, replacing it with a narrower prohibition.”); see also Delahunty & Yoo, supra note 8, at 856 (“The common idea that the President has a positive constitutional authority to decide not to enforce the civil law is mistaken.”).
See Price, supra note 8, at 707-08 (arguing that negative delegations “raise[] none of the [Take Care Clause] concerns that support a presumption against executive suspending or dispensing authority in the absence of congressional authorization”). Zachary Price also finds little historical evidence that the original understanding of the U.S. Constitution precluded such delegations. Id. But see Hamburger, supra note 12, at 78 (arguing that the Constitution implicitly bans delegation of forbearance-like authority).
Or, if you prefer, from the pen of “some green eye-shade type in the bowels of the bureaucracy.” Thomas O. Sargentich, Normative Tensions in the Theory of Presidential Oversight of Agency Rulemaking, 7 Admin. L.J. 325, 329 (1993) (quoting Quayle Competitiveness Council Called Secretive, Meddlesome, by OMB Watch Report, 174 Daily Rep. for Executives (BNA), at A-11 (Sept. 9, 1991)).
See Kagan, supra note 42, at 2332 (calling “the degree to which the public can understand the sources and levers of bureaucratic action” a “fundamental precondition of accountability in administration”); Stephenson, supra note 148, at 137 (assuming a correlation between visibility and accountability).
See, e.g., David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 19-20 (1993); see also Kagan, supra note 42, at 2368 (arguing that the nondelegation doctrine is used to “promote distinctive rule of law values” and specifically to “provide notice, prevent arbitrariness, and facilitate judicial review”).
See Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. Pa. L. Rev. 1, 23 (2011) (“[A]dministrative law’s primary purpose has been to develop various legal structures and mechanisms—such as political oversight, judicial review, public participation, and reason-giving requirements—that help to legitimate and control agency action.”).
Jacob Kastrenakes, FCC Received a Total of 3.7 Million Comments on Net Neutrality, Verge (Sept. 16, 2014, 6:06 PM), http://www.theverge.com/2014/9/16/6257887/fcc-net-neutrality -3-7-million-comments-made [http://perma.cc/B883-HCF9].
See Richard J. Pierce, Jr., Rulemaking and the Administrative Procedure Act, 32 Tulsa L.J. 185, 189 (1996) (“[R]ulemaking enhances the political accountability and legitimacy of agency policy making by providing the general public, the President, and members of Congress advance notice of an agency’s intent to make major policy decisions and an opportunity to influence the policies ultimately chosen by the agency.”).
See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 274 (1987) [hereinafter McNollGast, Administrative Procedures]; Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 434 (1989) [hereinafter McNollGast, Structure and Process].
See Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 998 (2007) (arguing that the requirement that an agency give reasons for its decisions “promotes conditions for rationality, regularity, stability, and principled accountability within the boundaries of acceptable discretion”); see also United States v. N.S. Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (“It is not in keeping with the rational process to leave vital questions, raised by comments which are of cogent materiality, completely unanswered. The agencies certainly have a good deal of discretion in expressing the basis of a rule, but the agencies do not have quite the prerogative of obscurantism reserved to legislatures.”).
See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 528 n.313 (2003) (“The reasoned-decisionmaking requirement calls on agencies, as a condition of judicial validation of their policy decisions, to engage in the type of decisionmaking that tends to produce rational decisions.”); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Corp., 463 U.S. 29, 43 (1983) (“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.”).
See 5 U.S.C. § 704 (2012) (“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.”); Nicholas Bagley, The Puzzling Presumption of Reviewability, 127 Harv. L. Rev. 1285, 1286 (2014) (“The presumption in favor of judicial review of agency action is a cornerstone of administrative law.”).
See, e.g., Cellular Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 507 (D.C. Cir. 2003). To the extent the Commission is engaged in statutory interpretation, its decision is also reviewed under Chevron. See id. In addition, although difficult standing issues occasionally may arise, see Barron & Rakoff, supra note 5, at 319 & n.201, an agency rule depriving a statutory requirement of legal force and effect is much more likely to result in a justiciable “case or controversy” than a simple nonenforcement decision. For one, the agency’s decision to exercise forbearance authority comes in the shape of a discrete rule with direct legal consequences, making it easier to trace any resulting harm to individual parties capable of seeking judicial relief. See id. (“[T]he decision to dispense with a statutory requirement will, in a broad range of cases, supply enough potentially discretely injured parties to deprive agency officials—if well advised—of confidence that exercises of big waiver authority should be assumed to be immune from judicial second-guessing.”). And a party who petitions an agency to remove a statutory requirement and whose request is denied should have clear standing to appeal the denial, assuming that the petitioner is subject to the requirement in question. See id.
See, e.g., Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 Harv. L. Rev. 1755, 1766-68 (2013); see also Livermore & Revesz, supra note 194, at 1361-77 (suggesting an anticapture rationale for OIRA review). But see Michael A. Livermore, Cost-Benefit Analysis and Agency Independence, 81 U. Chi. L. Rev. 609, 609 (2014) (arguing that cost-benefit analysis in fact helps preserve agency autonomy).
Independent agencies such as the FCC fall outside the OIRA review process. Scholars have debated whether that should continue to be the case, and whether independent agencies should incorporate more robust cost-benefit analysis into their decision making. See, e.g., Datla & Revesz, supra note 162, at 836-42 (arguing against the view that independent agencies cannot be subject to OIRA review). This Article sidesteps those issues.
Moreover, under normal administrative-law principles, the agency has presumptive authority to reverse itself and reimpose the requirement as it sees fit, something it obviously could not do if forbearance were a true statutory repeal. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009).
This premise might have greater force in some contexts, particularly where Congress delegates a forbearance authority that cuts broadly across different regulatory contexts. For example, one negative delegation previously discussed in the literature allows the Attorney General to render any statute inapplicable if it interferes with the construction of a border fence along the U.S.-Mexico border. See Barron & Rakoff, supra note 5, at 289-90. However, the objection fails in the forbearance contexts described in this Article, where both the forbearance-like delegation and the statutory requirement subject to forbearance are closely linked.
See, e.g., Philip Hamburger, Can Health-Care Waivers Be Justified?, Nat’l Rev. (Feb. 18, 2011, 4:00 AM), http://www.nationalreview.com/article/260018/can-health-care-waivers-be -justified-philip-hamburger [http://perma.cc/6K3K-3RAF].
See Stephenson, supra note 60, at 291 (“One of the principal arguments in favor of a stronger non-delegation doctrine is that it would promote political accountability by forcing Congress to make more critical policy decisions itself, rather than shifting these decisions to agencies . . . .”); see also Indus. Union Dep’t v. Am. Petrol. Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (noting that nondelegation “ensures . . . that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will”). But see Kagan, supra note 42, at 2335 (noting that the Executive’s ultimate accountability to the entire electorate (through presidential elections) means that the Executive may be quite responsive to the median national voter); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 98-99 (1985) (sketching the accountability argument in favor of delegation); Stephenson, supra note 148, at 135-36 (“[D]elegating authority from one elected branch (Congress) to another one (the executive) does not entail any obvious accountability loss, unless one believes that decisionmaking by the former inherently involves a greater degree of political accountability than decisionmaking by the latter.”). See generally Schoenbrod, supra note 170 (mounting an accountability-based critique of delegation)Moreover, even so-called “independent” agencies, the heads of which may not be removed by the President without cause, remain accountable to political actors through various means. See Pardo & Watts, supra note 58, at 432 (“[E]ven independent agencies that are insulated from direct presidential control are not insulated from politics or from congressional control.”); see also Datla & Revesz, supra note 162, at 784 (“[T]he binary distinction between independent and executive agencies is false.”).
See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1512 (1987); see also Sunstein, supra note 76, at 423-24 (arguing that departures from statutory text may be justified in response to, among other things, changed circumstances). In addition, courts may be tempted to use constitutional-law doctrine to invalidate legislation in circumstances in which an agency could otherwise exercise forbearance. See, e.g., Shelby County v. Holder, 133 S. Ct. 2612, 2618 (2013) (“There is no denying . . . that the conditions that originally justified [the preclearance] measures no longer characterize voting in the covered jurisdictions.”); see also infra Section IV.B (exploring the case in greater depth).
See Lemos, supra note 58, at 449-50; Pardo & Watts, supra note 58, at 433; see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (“While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”).
See George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 3 (1971) (“A central thesis of this paper is that, as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit.”); see also Bruce M. Owen & Ronald Braeutigam, The Regulation Game: Strategic Use of the Administrative Process 2 (1978) (“No industry offered the opportunity to be regulated should decline it.”).
See Carpenter & Moss, supra note 224, at 16 (“A captured policy process can also result in less public interest-serving regulation, and (as a consequence) reduce or eliminate regulatory costs that fall on industry.”); Livermore & Revesz, supra note 194, at 1355 (“Although it is possible that special-interest influence may sometimes lead to overregulation, it is at least as likely that too little regulation will be the result.”).
This argument shares some similarities with the “deck-stacking” hypothesis articulated by McNollGast. They argue that Congress can structure the administrative process to favor certain interests, including the public’s. See McNollGast, Structure and Process, supra note 178, at 444 (“[T]he structure and process of an agency should stack the deck in favor of the groups who, among those significantly affected by the policy, are also favored constituents of the coalition that caused the policy to be adopted.”).
See Livermore & Revesz, supra note 194, at 1355 (“[S]pecial-interest influence could just as easily lead to underregulation as overzealousness.”). Negative delegations are also superior to other forms of executive inaction or deregulation, such as nonenforcement, because these alternatives are harder to monitor for evidence of capture. See supra Section III.B.2.
The reasons for the failure of the pre-1990 HAP regime in particular are varied. But those reasons included the EPA’s unwillingness to impose potentially draconian requirements on industry, as would apparently have been required once the agency decided to designate a pollutant as hazardous. See Michael E. Herz, The Air Toxics Dilemma: Whither Section 112?, 1990 Ann. Surv. Am. L. 135.
See Christopher S. Yoo, Beyond Network Neutrality, 19 Harv. J.L. & Tech. 1, 2 (2005) (noting that Congress “largely failed to take the Internet into consideration when enacting the Telecommunications Act of 1996,” leading to uncertainty regarding how the Internet fit into the “existing regulatory regime”).
See Mark Seidenfeld, Pyrrhic Political Penalties: Why the Public Would Lose Under the “Penalty Default Canon,” 72 Geo. Wash. L. Rev. 724, 725 (2004) (“[A]ny analysis that depends on reading legislative history to find the motive of a multibody group like Congress is going to raise difficult questions about what it means for a group to have a motive and precisely how the courts are to determine what that motive is.”).
See Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 338 (2000) (“The difficulty of drawing lines between prohibited and permitted delegations makes it reasonable to conclude that for the most part, the ban on unacceptable delegations is a judicially underenforced norm, and properly so.”); cf. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978) (discussing the underenforcement of constitutional norms).
Similar scenarios might readily be imagined in other contexts. Indeed, this is one way to interpret the Line Item Veto Act. See Lessig, supra note 16, at 1663 (arguing against delegations, like the Line Item Veto Act, where “Congress has so plainly liquidated its policy choice, and empowered the President plainly to negate it”).
See, e.g., Sunstein, supra note 255, at 315 (“[N]ondelegation canons are far preferable to the old nondelegation doctrine, because they are subject to principled judicial application, and because they do not threaten to unsettle so much of modern government.”); see also Indus. Union Dep’t v. Am. Petrol. Inst., 448 U.S. 607, 646 (1980) (plurality opinion) (reading the statute so as to avoid a “sweeping delegation of legislative power”).
See 52 U.S.C. § 10303(a)(1)(A)-(F) (2012). As Nathaniel Persily has explained, the bailout provision “basically require[s] the covered jurisdiction to prove to the U.S. District Court for the District of Columbia that in the previous ten years it has not violated the voting rights of its citizens, has fully complied with its preclearance obligations, has taken affirmative steps to prevent potential VRA violations and has included minorities in the apparatus of election administration.” Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 212 (2007).
See Shelby County v. Holder, 679 F.3d 848, 891 (D.C. Cir. 2012) (Williams, J., dissenting) (singling out Massachusetts, Washington, and Colorado as “the worst offenders”), rev’d, 133 S. Ct. 2612 (2013). But see Persily, supra note 272, at 196 (“Turnout rates in the covered and uncovered jurisdictions do not differ consistently.”).
Indeed, some advocated for expanded bailout opportunities on similar grounds. See, e.g., An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 10, 14 (2006) (statements of Richard L. Hasen, William H. Hannon Distinguished Professor, Loyola Law School, and Samuel Issacharoff, Reiss Professor of Constitutional Law, New York University School of Law).
See, e.g., Kirti Datla, Note, The Tailoring Rule: Mending the Conflict Between Plain Text and Agency Resource Constraints, 86 N.Y.U. L. Rev. 1989, 1997 (2011) (arguing that “the Court’s narrow limitation of the grounds available to EPA to justify a second denial of the rulemaking petition on remand made it almost inevitable that EPA would” issue an endangerment finding).
See Datla, supra note 290, at 1998 (“Under EPA’s interpretation of its existing regulations, once it began regulating greenhouse gas emissions from mobile sources, it acquired a nondiscretionary duty under its own longstanding regulations to regulate greenhouse gas emissions from stationary sources through two permitting programs: the Prevention of Significant Deterioration (PSD) program and the Title V program.”).