Administrative forbearance.

• Author: Deacon, Daniel T.
• Position: Agency authority to deprive statutory provisions of legal force and effect - III. Forbearance as Delegation through Conclusion, with footnotes, p. 1581-1614

3. FORBEARANCE AS DELEGATION

   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.

   1. Traditional Justifications for Delegation to Agencies

      This Section applies the traditional justifications for delegation to agency forbearance authority. Because of the greater expertise and flexibility of agencies vis-a-vis Congress, agencies might be better at wielding the power to deprive statutory provisions of their legal force and effect.

      1. Expertise-Information

         Perhaps the classic justification for delegation is to harness agencies' superior expertise and information vis-a-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 legislation (147) 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)

      2. Flexibility

         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.

   2. Advantages over Policymaking Through Enforcement

      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...