The Federal Inaction Commission
55 Pages Posted: 5 Jun 2010 Last revised: 10 Jun 2010
Date Written: June 4, 2010
Administrative agencies can implement their delegated statutory authority too aggressively or not aggressively enough. When regulated entities are adversely affected by unduly aggressive agency action, they can routinely obtain judicial review of the legality of those decisions. Yet this important safeguard and other procedural protections are often unavailable to regulatory beneficiaries who are adversely affected by agency inaction. As a result, agencies have powerful incentives to favor the views of regulated entities over the views of regulatory beneficiaries during the administrative process. While several commentators have suggested that judicial review of non-enforcement decisions and other agency inaction should be more readily available to alleviate this asymmetry and advance other important objectives, such proposals arguably raise separation of powers concerns and other practical difficulties stemming from the limited resources of agencies and courts and questions regarding the judiciary’s competence to review decisions of this nature.
This Article proposes the establishment of a "Federal Inaction Commission" (FIC). This new, independent agency would be charged with investigating and reviewing the inaction of executive branch agencies and reporting its findings and recommendations to elected officials and the public. The FIC would provide many of the same benefits that would result from increasing the availability of judicial review of non-enforcement decisions and other regulatory inaction. At the same time, the FIC would be in a position to minimize the practical disadvantages that have been identified with judicial review of such decisions. Not only would the establishment of the FIC therefore provide a more workable solution to the problem of agency inaction than other commentators have offered, but the agency would also provide a political solution to what the staunchest defenders of the status quo have maintained is solely a "political" problem.
Keywords: administrative law, agency inaction, enforcement discretion, separation of powers, oversight
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