The Law of 'Not Now'

30 Pages Posted: 17 Nov 2013 Last revised: 12 Mar 2014

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Adrian Vermeule

Harvard Law School

Date Written: November 15, 2013


Administrative agencies frequently say “not now.” They defer decisions about rulemaking or adjudication, or decide not to decide. When is it lawful for them to do so? A substantial degree of agency autonomy is guaranteed by a recognition of resource constraints, which require agencies to set priorities, often with reference to their independent assessments of the relative importance of legislative policies. Unless a fair reading of congressional instructions suggests otherwise, agencies may also defer decisions because of their own policy judgments about appropriate timing. At the same time, agencies may not defer decisions, or decide not to decide, if Congress has imposed a statutory deadline, or if their failure to act amounts to a circumvention of express or implied statutory requirements, or amounts to an abdication of the agency’s basic responsibility to promote and enforce policies established by Congress.

Keywords: Agency inaction, executive power, cost-benefit analysis, bandwidth

Suggested Citation

Sunstein, Cass R. and Vermeule, Adrian, The Law of 'Not Now' (November 15, 2013). Harvard Public Law Working Paper No. 14-08, Available at SSRN: or

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
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617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Adrian Vermeule

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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