New York University Public Law and Legal Theory Working Papers

Document Type



George Washington Law Review, Vol. 79, p. 1381, 2011


How long should it take a government agency to act on a nondiscretionary duty? When does the agency’s decisionmaking process become unreasonably delayed, warranting judicial intervention to compel agency action? These questions are central to the operation and accountability of the modern administrative state. Agency delays in decisionmaking and action have been widely acknowledged as a fundamental impediment to the effective functioning of federal agencies for over thirty years; and more recently, significant delays in regulatory action have raised serious concerns about the political legitimacy of unfettered presidential control of the bureaucracy. Yet the appropriate role for courts to play in reviewing agency delays has garnered little attention in the academic literature, and the judicial doctrine is ad hoc, incoherent, and difficult to apply consistently. Thus, this Article argues, judicial review of agency delay is ripe for reform.

Drawing upon the insights of positive political theory, this Article reframes agency delays as a principal-agent problem between congressional enacting coalitions and the agency, rather than merely a conflict between the agency and its beneficiaries, as the problem has traditionally been understood. Therefore, courts should assess whether agencies have abused their discretion over when to act in light of the type of decision delegated to the agency, whether the motivation behind the agency’s timeline comports with its delegated authority, and the costs and benefits of inaction to the enacting coalition’s statutory goals. This Article proposes that plaintiffs should have the burden of proving that the costs of delay due to other priorities outweigh the benefits, but that the burden of proof should shift to the agency once substantive decisionmaking is underway. This burden-shifting framework preserves agencies’ discretion over their agendas while preventing foot-dragging caused by agency dysfunction, agency capture, or regulatory obstructionism by competing political principals. In addition, this Article proposes ways in which agencies’ regulatory submissions to the Office of Information and Regulatory Affairs can facilitate political oversight and provide additional tools for curing unreasonable delays.

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