The Administrative Law of Regulatory Slop and Strategy

68 Pages Posted: 13 Jun 2019 Last revised: 14 Sep 2019

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

Emily Hammond

George Washington University - Law School

Date Written: May 30, 2019

Abstract

Judicial review of agency behavior is often criticized as either interfering too much with agencies’ domains or doing too little to ensure fidelity to statutory directives and the rule of law. But the Trump administration has produced an unprecedented volume of agency actions that blatantly flout settled administrative-law doctrine. This phenomenon, which we term “regulatory slop,” requires courts to reinforce the norms of administrative law by adhering to established doctrine and paying careful attention to remedial options. In this Article, we document numerous examples of regulatory slop and canvass how the Trump agencies have fared in court thus far. We contend that traditional critiques of judicial review carry little force in such circumstances. Further, regulatory slop should be of concern regardless of one’s political leanings because it threatens the rule of law. Rather than argue for a change to substantive administrative-law doctrine, therefore, we take a close look at courts’ remedial options in such circumstances. We conclude that a strong approach to remedies can send corrective signals to agencies that reinforce both administrative-law values and the rule of law.

Keywords: Administrative Law, Rule of Law, Judicial Review, Rulemaking, Remedies, Trump Administration Regulatory Policies

Suggested Citation

Glicksman, Robert L. and Hammond, Emily, The Administrative Law of Regulatory Slop and Strategy (May 30, 2019). 68 Duke Law Journal 1651 (2019), GWU Law School Public Law Research Paper No. 2019-58, GWU Legal Studies Research Paper No. 2019-58, Available at SSRN: https://ssrn.com/abstract=3396610 or http://dx.doi.org/10.2139/ssrn.3396610

Robert L. Glicksman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Emily Hammond

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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