Duke Law Journal

Agency Statutory Abnegation In the Deregulatory Playbook

Abstract

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this Article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation as justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, reveal an especially prevalent use of such statutory abnegation. This Article explains the agency statutory-abnegation strategy, illustrating its variants with review of past and recent uses. It then distinguishes statutory abnegation from agency actions and explanations that might appear to manifest or permit such a strategy but actually involve doctrinally different and less problematic settings. Then, after distilling the key elements of doctrines governing agency policy change, or what is sometimes referred to as consistency doctrine, it reviews procedural and analytical hurdles agencies must surmount to succeed in a policy change. It explores how analysis of this strategic move reveals the inadequacy of—or perhaps the naïve, publicly interested optimism behind—prevalent theories and linked normative claims about agency incentives, judicial roles, and political accountability. The Article closes by analyzing the persistent judicial rejection of such strategies and the underlying normative vision they reflect about the balance of law and politics in the administrative state.