Advancing Federalism Concerns in Administrative Law Through a Revitalization of Enforcement Powers – A Case Study of the Consumer Product Safety and Improvement Act of 2008

Abstract

Problems of executive discretion, accountability, and limits of judicial review are both the source and the crux of administrative law. Judicial review of agency rule-making and action are the focus of many scholarly discussions. However, in the area of agency inaction there has traditionally been very little judicial review and almost unfettered executive discretion. Inaction can take many forms, such as a denial of rule-making or a choice not to enforce, or otherwise overlook, violations of regulations. A great majority of these inactions go unnoticed by the electorate, leading to few political accountability mechanisms. The lack of political accountability, coupled with established understandings that the courts generally do not review areas of inaction, leaves an oversight gap that can have real consequences. This article addresses that gap and argues that a legislative grant of state enforcement power serves as a remedy, both in expanding enforcement and also providing a necessary tension to hold the federal agency accountable for its decisions not to enforce.

Keywords: Administrative law