When new administrations arrive and consider agency policy changes, they often must choose what actions to take in court or through regulatory process. They may seek to stay an existing regulation, rescind, or possibly replace it. This article assesses strategic uses of, and responses to, agencies that pursue deregulatory rollbacks through a splintered series of steps. Through such splintering, agencies sometimes seek to avoid direct apples-to-apples comparison of the baseline regulation and new proposal, also often squelching opportunities for comment. They may seek to achieve a deregulatory outcome without the full process, disclosure, and reason-giving that ordinarily must accompanying any notice-and-comment regulation and that longstanding Supreme Court precedents require when an agency changes policy. This article highlights problems with such deregulatory splintering, analyzes governing law, and also illuminates misunderstandings about deference regimes that are sometimes erroneously relied upon to justify deregulation via procedural shortcuts. Courts have generally rejected deregulatory splintering strategies, correctly noting how such deregulatory splintering violates both positive law requirements and central precepts about accountability and legitimacy in the administrative state.
William W. Buzbee,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol94/iss2/8