A lot of attention these days has been focused on prosecutorial discretion in the administrative law context—the scope of the Executive Branch’s authority to not enforce the law. We recently had a week-long online symposium about it in the immigration context, with a particular focus on the pending Supreme Court case challenging the Obama Administration’s executive actions on immigration.
These questions regarding Executive Branch discretion to enforce the law are fascinating, and will no doubt be explored in way-too-many law review articles in the near future. But there is another type of law-waiver authority that has been far less examined: congressional delegation to agencies to waive statutory provisions. To be sure, now-Judge David Barron and Todd Rakoff published In Defense of Big Waiver a few years back that nicely framed the issue. But it remains an undertheorized and underexamined area of administrative law.
Along comes a terrific new article by Dan Deacon entitled Administrative Forbearance, which will be published this year in the Yale Law Journal. You can download a draft of the article from SSRN here, and here’s the 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, scholars 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 maintains 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.
Definitely go give the article a full read. This topic is of great importance not only for scholars of administrative law, but also for agency officials and practitioners who work in the bureaucratic trenches.