Agency Underenforcement as Reviewable Abdication

Jentry Lanza | March 1, 2018

The Supreme Court held in 1985 that agency refusals to enforce are presumptively unreviewable under the Administrative Procedure Act. In doing so, the Court created an exception for when an agency has “consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Courts and scholars have mostly interpreted this abdication exception as capturing only total nonenforcement, which is when an agency completely stops enforcing its statutory responsibilities. On the other hand, the D.C. Circuit allows review of all general enforcement policies, regardless of whether they implicate abdication—but rarely do agencies create such official policies. Both these approaches, however, fail to allow review when the agency is underenforcing its responsibilities so severely that it achieves substantially the same effect as total nonenforcement. This type of “severe underenforcement” poses concerning problems. It can potentially undermine complex statutory schemes and implicates constitutional separation of powers concerns. This Note argues that courts and scholars have misread the abdication exception to include only total nonenforcement. Because severe underenforcement poses the same types of concerns that compelled the Court to establish the abdication exception, courts should also allow review under the Administrative Procedure Act when there is severe underenforcement. Adopting a severe underenforcement approach to the abdication exception would help alleviate the concerns it poses and check agency overreach via underenforcement.