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Note: Going Back in Time: The Search for Retroactive Rulemaking Power in Statutory Deadlines

By Chris Schmitter. Full text here.

Congress regularly enacts complex laws that require administrative agencies to promulgate rules by specific deadlines. Yet, as agencies do the work of creating rules and, from time to time, miss statutory deadlines, a question remains as to whether an agency can promulgate a rule that is retroactive to the statutory deadline. This seemingly esoteric issue, which this Note terms the “tardy-agency problem,” recently sparked a heated debate on the U.S. Court of Appeals for the D.C. Circuit and may become a commonplace problem. This Note explores the tardy-agency problem, first by summarizing the law governing retroactive rulemaking and then by analyzing the rationales underlying retroactivity doctrine. The traditional response to retroactive rulemaking, that an agency is barred from making retroactive rules absent explict permission from Congress, fails to resolve the tardy-agency problem. But it is also not appropriate simply to grant an agency blanket power to make retroactive rules after missing an agency deadline. Both bright-line rules fail to address the problem and carry significant policy implications.

This Note proposes a new approach to the tardy-agency problem. Judges should focus on whether a statutory deadline represents implicit congressional intent to give an agency the power to make retroactive rules. To engage in this inquiry, courts should consider the nature, duration, and complexity of the statutory scheme. This approach gives courts flexibility that a bright-line rule does not, but it also avoids the instability of giving the courts a multi-factor balancing test. And it successfully addresses two competing policy concerns. This approach will ensure agencies do not take statutory deadlines any less seriously, while also guarding against agency efforts to use the bar on retroactivity to obstruct Congress’s priorities. This Note encourages courts to adopt the congressional-intent test, because it provides a clear and coherent way to deal with the tardy-agency problem that is consistent with key precedent and the principles of administrative law.