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