STAYING AGENCY RULES: CONSTITUTIONAL STRUCTURE AND RULE OF LAW IN THE ADMINISTRATIVE STATE

• 成果类型: Article
• 署名作者: Cass, Ronald A.
• 署名单位: Boston University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2017
• 页码: 225-258
• 关键词: delegation doctrine; COMMON-LAW; chevron; RETHINKING; DISCRETION; DEFERENCE; balance; COURT

摘要

Today, administrative rules are far more numerous than the laws enacted by Congress, cover far more pages in the relevant legal codes, account for far more regulatory commands, and have profound effects on American economy and society. Although administrative rules can provide substantial public ben fit, legal constraints on the scope of administrative authoriy and on the processes by which it is employed provide critical protections. Courts, when asked, can review the legality of these rules; courts also can stay rules' effectiveness pending review, both preserving the status quo and reducing costs entailed by rules of questionable legality. Holding rules in abeyance until thy can be reviewed often is the best-and at times the only-vehicle for guaranteeing a meaningful review. Canons of deference to both administrative and judicial discretion should be revisited in light of the vast reach of federal administrative regulation, the concentrated impact regulations often have on speqfic individuals and entities, and the frequent experience that staying rules' effects is critical to limiting administrative adventurism and avoiding irreparable harm. Greater attention to the harm from failure to stay questionable rules can protect rule-of-law values, preserve liberties that were central to our constitutional design, and provide space for serious evaluation of the rules' consistency with law.