How Agencies Choose Whether to Enforce the Law: A Preliminary Investigation
32 Pages Posted: 27 Jun 2018 Last revised: 10 Feb 2021
Date Written: June 15, 2018
This Article has three purposes. First, drawing on interviews and survey data, it offers a preliminary real-world look into how a number of agencies choose whether to enforce the law in the context of waivers, exemptions, and prosecutorial discretion. The evidence suggests that nonenforcement is heterogeneous across numerous dimensions—including who is involved in the process, the steps the agency must take to make a nonenforcement decision, the scope of nonenforcement, and the potential for public and judicial scrutiny of the agency’s decision. Second, this Article begins to sketch a taxonomy of nonenforcement. Although nonenforcement is often treated as a unitary concept, in fact it comes in many flavors, some of which are more dangerous than others. Finally, building on this taxonomy, this Article urges safeguards to prevent nonenforcement’s abuse. Most significantly, nonenforcement should be rare and requests for it should serve as a signal that retrospective review may be in order.
Keywords: administrative law, what's new in administrative law, enforcement decisions, prosecutorial discretion
JEL Classification: K23
Suggested Citation: Suggested Citation