Administrative Inertia after Regents and Department of Commerce
Forthcoming, Administrative Law Review Accord
24 Pages Posted: 9 Mar 2021 Last revised: 13 Apr 2021
Date Written: March 6, 2021
Agency actions, like objects in motion, resist being reversed. That resistance is administrative inertia and is measured by the amount of effort an administration must expend to reverse it in compliance with the APA. The principle of stare decisis implies that the amount of effort that one administration must expend to reverse a predecessor’s action ought to be constant across administrations. DHS v. Regents and Dep't of Commerce v. New York, however, added mass to certain regulatory actions by requiring that, before an agency may rescind an action that confers a benefit, the agency must separately consider each part of a policy, articulate granular and specific decisions for rescission, consider reliance interests and alternatives, and ensure that the rationale is directed at a concrete outcome and that the record shows it. This article sets about identifying those agency actions that have had their administrative mass increased and measuring just how much more force is now needed to reverse them. It then applies those observations to the Biden Administration’s aggressive efforts to rescind various Trump-administration actions.
The article concludes that if the courts apply these two decisions to the Biden Administration in the same way that the Supreme Court applied them to the Trump Administration, the Biden Administration will likely find it much harder to rescind many Trump-Administration policies than it was for past presidents to rescind the policies of their predecessors. This increased administrative inertia will be most noticeable in agency actions that loosened environmental restrictions and relaxed regulatory burdens on commerce.
Keywords: administrative law, administrative inertia, Supreme Court, administrative recission, agency action, Biden, Trump, environmental, commerce
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