78 Pages Posted: 12 Sep 2022 Last revised: 31 May 2023
Date Written: May 31, 2023
In recent years, federal agencies have increasingly used nonenforcement as a bargaining chip—promising not to enforce a legal requirement in exchange for a regulated party’s promise to do something else that the law doesn’t require. This Article takes an in-depth look at how these nonenforcement trades work, why agencies and regulated parties make them, and the effects they have on social policy. The Article argues that these trades pose serious risks: Agencies often use trading to evade procedural and substantive limits on their power. The trades themselves present fairness problems, both because they tend to reward large, well-connected firms and because they often coerce regulated parties that lack bargaining power. Moreover, the agency’s nonenforcement promises aren’t binding—thus, even if a regulated party upholds its end of the bargain, the agency can always renege on the deal. The Article concludes by identifying several possible solutions that might discourage agencies from trading nonenforcement.
Keywords: administrative law, nonenforcement, what's new in administrative law
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