Administrative law isn’t usually political, but an attendee at a two-day American Bar Association conference wanted to know what would happen if a regulatory agency decided not to comply with a court order.
The line of questioning started with a query about the methods that the next administration could use to deregulate and how far back existing rules can be frozen.
One of the questions pitched to the panel: “Assuming they lose in court, what does the court do if the administration doesn’t decide to comply?”
The first reaction from the panel was, “Wow.” And the second, from Jamie Gorelick, partner at Wilmer Cutler Pickering Hale and Dorr in Washington, was: “You have a constitutional crisis.”
Jack Beermann, professor of law at Boston University Law School, was moderating the panel, entitled Legal, Policy and Political Challenges in the Presidential Transition. The room, which seats about 500, was so full some attendees were sitting on the floor.
Beermann deftly turned the question into a related discussion about enforcement discretion.
“Which is that, whatever regulations or statutes are on the books, any administration has a great deal of enforcement discretion,” Beermann said.
The most famous exercise of that occurred during the current administration with deferred action on immigration hearings, he said.
“It’s nigh impossible to force any administration to actually take regulatory action against anyone,” Beermann said.
And the only positive thing about lawsuits seeking to compel regulation is if you’re billing hourly, Beermann quipped to laughter from the room.
Once a regulation has been actually promulgated, there is a question of whether it can be frozen if it has not yet gone into effect, he said.
Marcus Peacock, professor at the George Washington University Regulatory Studies Center, said any rules that have been submitted to the Federal Register, but not yet put on display, can be pulled back and frozen.
Deregulatory actions, however, are like any other regulatory action, in that they must adhere to the requirements of the Administrative Procedure Act, including analysis and a notice-and-comment period, Peacock said.
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