February 25, 2020 11 minutes to read · 2600 words

Don’t Delay . . . It Will Only Delay Things

By Jamie Conrad

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Reprinted with permission from Administrative and Regulatory Law News, Volume 44, Number 4, Summer 2019, at 4-6. ©2019 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

A cottage industry has emerged to track the Trump Administration’s losing judicial record, particularly involving its deregulatory efforts. See, e.g., https://policyintegrity.org/deregulation-roundup. In roughly 80% of the latter cases, the Trump Administration had not sought to repeal the prior administration’s “midnight rules,” but rather had sought to prevent them from coming into (or remaining in) effect. These delay tactics have mostly been rejected by reviewing courts, even when implemented through notice-and-comment rulemaking. As discussed below, these courts have effectively held that an agency’s delay of a rule’s effective date requires as much public engagement and analysis as rescinding a rule. This is very bad law and policy—even if you are not a Trump fan. 

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