74 Pages Posted: 11 Nov 2011 Last revised: 10 May 2012
Date Written: May 1, 2012
Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time. As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states implemented some kind of executive-driven regulatory moratorium. In addition, beginning with President Reagan, all U.S. presidents other than George H.W. Bush have issued short-term regulatory moratoria immediately upon coming into office to facilitate review of midnight regulations passed by their predecessors. President Bush, who followed a member of his own party into the White House, instead implemented a one-year moratorium during his last year in office.
This Article aims to situate regulatory moratoria within the existing literature on political control of the administrative state. The goal of this Article is largely descriptive: to provide the first overarching description of the emergence of and proposals for regulatory moratoria at both the federal and state levels and the different contexts in which regulatory moratoria have arisen. The Article also seeks to identify and analyze the major arguments for and against regulatory moratoria from both a legal and a policy perspective. In weighing the pros and cons of regulatory moratoria, this Article warns against the use of “hard” moratoria — defined as long-term moratoria often spanning a year or more. It also suggests, however, that “soft” moratoria — meaning short-term moratoria keyed to a brief period of political transition — might appropriately further notions of democratic accountability when used carefully by the executive branch following a change in administration to ensure that the regulatory machinery is aligned with the policies of those newly elected to power.
Keywords: administrative law, rulemaking, regulatory moratoria, regulatory suspensions, rulemaking freezes, political control
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