Person:

Gersen, Jacob

A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control of administrative agencies. Restrictions on the appointment and removal of personnel, the specification of requisite procedures for agency decisionmaking, presidential prompt letters, ex ante review of proposed decisions by the Office of Management and Budget, legislative vetoes, and alterations in funding or jurisdiction all constitute potential mechanisms for the control of agency behavior. In this paper, we focus on a much more elemental mechanism of control that has surprisingly gone relatively unnoticed in the literature on administrative agencies: Congressional control of the timing of administrative action. The use of deadlines that require agency action to commence or complete by a specific date is extremely common in the modern administrative state, but even basic descriptive statistics about the frequency and nature of these mechanisms are lacking, much less a fully elaborated theory of regulatory deadlines. This paper offers the beginning of such a theory by providing a doctrinal, theoretical, and empirical analysis of deadlines in administrative law.

Anecdotal evidence of agencies burying bad news is rife in law and politics. The bureaucracy regularly is accused of announcing controversial policies on holidays and weekends when public attention is elsewhere. We show that this conventional wisdom is wrong, or at least significantly incomplete. The conventional wisdom is riddled with theoretical holes, and there is little systematic empirical evidence to support it. After critiquing the conventional account of agencies hiding bad news, we articulate and defend a revised theory of strategic timing in administrative law. We argue that timing decisions rarely affect the visibility of decisions but can drive up the costs of monitoring and responding for interest groups and legislative coalitions. Agency discretion to choose when to announce policy decisions can even allow agencies to influence which interest groups monitor the regulatory process and therefore whose preferences must be taken into account. We evaluate both the conventional wisdom and our revised theory using twenty-five years of empirical evidence. We then develop the implications for administrative law doctrine and institutional design of the bureaucracy.