Nonenforcement and the Dangers of Leveraging

Abstract

Nonenforcement discretion is often beneficial. Not only do agencies have limited resources, general prohibitions can be poor fits for specific situations. Hence, agency discretion to not to enforce the law often makes a great deal of sense. Unfortunately, such discretion can also be abused. This short symposium essay addresses one type of potential abuse: leveraging. An agency may forego enforcement in order to obtain ends that are beyond the mission Congress set for it and, in so doing, may pursue technical violations that would not otherwise be a priority in order to obtain greater leverage over a particular party. This essay first addresses leveraging as a concept, including when quid pro quo trades between regulators and regulated parties are appropriate. And second, it begins to sketch options to minimize the danger of leveraging. Although there is no easy fix, it may be possible to reduce the risk.

Keywords: nonenforcement, leveraging, administrative law, what's new in administrative law

JEL Classification: K23