Self-Executing Statutes in the Administrative State
chapter in The Timing of Legal Intervention, (Frank Fagan & Saul Levmore eds., 2016) Forthcoming
31 Pages Posted: 22 Jan 2016
Date Written: January 22, 2016
Some statutes delegate authority to administrative agencies while others do not. Far less well known is that some statutes are self-executing while others are not. That is, some statutes announce legal norms that govern as of the statute’s effective date, while other statutes announce no such norm in advance of agency or other official action. Maintaining a practical distinction between self-executing and non-self-executing statutes can be challenging, but the models are different and they coexist in our legal system today. Some famous modern statutes create law to govern social life even if an agency fails to act or flunks judicial review (e.g., parts of the Controlled Substances Act of 1970 and the Dodd-Frank Act of 2010), while other equally famous statutes depend on successful agency action to create such law (e.g., parts of the Clean Air Act of 1970 and the Affordable Care Act of 2010). This paper specifies trade-offs across modern self-executing and non-self-executing statutes, identifies forces that lessen without eliminating the differences, and finds that courts have not effectively opposed either model. These model choices are more political and policy-based than judicial or constitutional. When combined with other dimensions of choice such as specificity, breadth, complexity, personnel appointments, material resources, and decision sequencing, we can better understand the basic elements of statutory design and, therefore, the architecture of our legal system.
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