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    Yale Law Journal: Volume 125, Number 6 - April 2016
    Yale Law Journal: Volume 125, Number 6 - April 2016
    Yale Law Journal: Volume 125, Number 6 - April 2016
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    Yale Law Journal: Volume 125, Number 6 - April 2016

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    About this ebook

    This issue of the Yale Law Journal (the sixth issue of academic year 2015-2016) features articles and essays by notable scholars, as well as extensive student research. The issue's contents include:

    Article, "Administrative Forbearance," by Daniel T. Deacon

    Essay, "The New Public," by Sarah A. Seo

    The student contributions are:

    Note, "How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes," by Robert L. Nightingale

    Note, "Border Checkpoints and Substantive Due Process: Abortion in the Border Zone," by Kate Huddleston

    Comment, "The State's Right to Property Under International Law," by Peter Tzeng

    Quality digital editions include active Contents for the issue and for individual articles, linked footnotes, active URLs in notes, and proper digital and Bluebook presentation from the original edition.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateApr 29, 2016
    ISBN9781610277945
    Yale Law Journal: Volume 125, Number 6 - April 2016
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      YALE LAW JOURNAL

      APRIL 2016

      VOLUME 125, NUMBER 6

      Yale Law School

      New Haven, Connecticut

      Yale Law Journal

      Smashwords edition. Copyright © 2016 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the "About the Yale Law Journal" page.

      Published by the Yale Law Journal. Digitally published in ebook editions, for the Yale Law Journal, by Quid Pro Books, at Smashwords. Available in all major digital formats and at leading retailers and booksellers.

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      Cataloging (Volume 125, Number 6):

      ISBN 978-1-61027-794-5 (ePUB)

      CONTENTS

      ARTICLE

      Administrative Forbearance

      Daniel T. Deacon     (125 YALE L.J. 1548)

      ESSAY

      The New Public

      Sarah A. Seo     (125 YALE L.J. 1616)

      NOTES

      How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes

      Robert L. Nightingale     (125 YALE L.J. 1672)

      Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone

      Kate Huddleston     (125 YALE L.J. 1744)

      COMMENT

      The State’s Right to Property Under International Law

      Peter Tzeng     (125 YALE L.J. 1805)

      About the Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Forum at http://www.yalelawjournal.org/submissions. We cannot guarantee that submitted responses will be published. Responses selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, with the exception of December) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 125 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, and overseas claims within 180 days. Thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Administrator.

      SINGLE AND BACK ISSUES. Each issue of of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc., for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-124, please contact William S. Hein & Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org) and through Volume 110 on the Yale Law Journal’s website (http://www.yalelawjournal.org).

      MANUSCRIPTS. The Journal invites the submission of unsolicited Articles, Essays, Book Reviews, and Forum pieces. Manuscripts must be submitted online at http://www.yalelawjournal.org/submissions.

      COPYRIGHT. Copyright © 2016 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (20th ed. 2015), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Peter Salovey, A.B., M.A., Ph.D., President of the University

      Benjamin Polak, B.A., M.A., Ph.D., Provost of the University

      Robert C. Post, J.D., Ph.D., Dean

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian

      Ellen Cosgrove, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Mary Briese Matheron, B.S., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law

      John H. Langbein, LL.B., Ph.D., Sterling Professor Emeritus of Law and Legal History and Professorial Lecturer in Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jerry L. Mashaw, LL.B., Ph.D., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      †    Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      Richard Albert, B.C.L., LL.M., Visiting Professor of Law and Canadian Bicentennial Visiting Associate Professor of Political Science (fall term)

      †    Anne L. Alstott, A.B., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Michelle Anderson, J.D., LL.M., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Women’s Rights (spring term)

      Rick Antie, B.S., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Paul Bloom, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Philip C. Bobbitt, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law (fall term)

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)

      Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      George Chauncey, M.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Marian R. Chertow, M.P.P.M., Ph.D., Professor (Adjunct) of Law (fall term)

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Ellen Cosgrove, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven Barry Duke, J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor Emeritus of Property and Urban Law and Professorial Lecturer in Law

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      †    William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence

      Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      †    James Forman, Jr., A.B., J.D., Clinical Professor of Law

      Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)

      Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Stanley J. Garstka, M.S.I.A., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      Abbe R. Gluck, B.A., J.D., Professor of Law

      Julie Goldscheid, M.S.W., J.D., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Women’s Rights (spring term)

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Mark Hall, B.A., J.D., Florence Rogatz Visiting Professor of Law (fall term)

      ‡    Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Marcia Johnson, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      ‡    Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities

      Johanna Kalb, M.A., J.D., Visiting Associate Professor of Law

      Amy Kapczynski, M.A., J.D., Professor of Law

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics

      Harold Hongju Koh, M.A., J.D., Sterling Professor of International Law

      Issa Kohler-Hausmann, J.D., Ph.D., Associate Professor of Law and Associate Professor of Sociology

      Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law

      John H. Langbein, LL.B., Ph.D., Sterling Professor Emeritus of Law and Legal History and Professorial Lecturer in Law

      ‡    Anika Singh Lemar, B.A., J.D., Clinical Associate Professor of Law

      ‡    Yair Listokin, Ph.D., J.D., Shibley Family Fund Professor of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Mary Briese Matheron, B.S., Associate Dean

      †    Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      John D. Morley, B.S., J.D., Associate Professor of Law

      Christina M. Mulligan, B.A., J.D., Visiting Associate Professor of Law (spring term)

      Andrew V. Papachristos, M.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Jason Parkin, B.A., J.D., Florence Rogatz Visiting Clinical Associate Professor of Law

      Nicholas R. Parrillo, J.D., Ph.D., Professor of Law

      Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law

      Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law

      Claire Priest, J.D., Ph.D., Simeon E. Baldwin Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      Asha Rangappa, A.B., J.D., Associate Dean

      William Michael Reisman, LL.M., J.S.D., Myres S. McDougal Professor of International Law

      ‡    Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      †    Cristina Rodríguez, M.Litt., J.D., Leighton Homer Surbeck Professor of Law

      John E. Roemer, A.B., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Roberta Romano, M.A., J.D., Sterling Professor of Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law (fall term)

      Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      David E. Schizer, M.A., J.D., Florence Rogatz Visiting Professor of Law (spring term)

      David N. Schleicher, M.Sc., J.D., Associate Professor of Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      †    Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, J.D., Ph.D., Professor (Adjunct) of Law (fall term)

      †    Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      James J. Silk, M.A., J.D., Clinical Professor of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Lawrence M. Solan, Ph.D., J.D., Sidley Austin—Robert D. McLean Visiting Professor of Law (spring term)

      Edward Stein, Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (spring term)

      ‡    Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies (fall term)

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      ‡    Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, and Director, Jerome N. Frank Legal Services Organization

      ‡    John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      *    Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Taisu Zhang, J.D., Ph.D., Irving S. Ribicoff Visiting Associate Professor of Law (fall term)

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law (spring term)

      *    On leave of absence, 2015–2016.

      †    On leave of absence, fall term, 2015.

      ‡    On leave of absence, spring term, 2016.

      LECTURERS IN LAW

      Sarah Baumgartel, A.B., J.D.

      Emily Bazelon, B.A., J.D.

      Brian Logan Beirne, B.S., J.D.

      Tessa Bialek, B.A., J.D.

      Jeremy L. Daum, B.S., J.D.

      Gregg Gonsalves, B.S.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Su Lin Han, M.A., J.D.

      Stephen Latham, J.D., Ph.D.

      James Ponet, M.A., D.D.

      Megan Quattlebaum, B.A., J.D.

      Michael Ulrich, J.D., M.P.H.

      Graham Webster, B.S., A.M.

      Robert D. Williams, B.A., J.D.

      VISITING LECTURERS IN LAW

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Catherine Ashton, B.Sc.

      Yas Banifatemi, Ph.D., LL.M.

      Mark Barnes, J.D., LL.M.

      Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      Lincoln Caplan, B.A., J.D., Truman Capote Visiting Lecturer in Law

      Timothy Collins, B.A., M.B.A.

      Victoria A. Cundiff, B.A., J.D.

      Brian T. Daly, M.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Gregory Fleming, B.A., J.D.

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Lee Gelernt, M.Sc., J.D.

      Peter T. Grossi, Jr., M.A., J.D.

      Menaka Guruswamy, LL.M., D.Phil., Peter and Patricia Gruber Fellow in Global Justice

      David L. Harfst, B.A., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow

      Jeffrey A. Meyer, B.A., J.D.

      Andrew J. Pincus, B.A., J.D.

      Stephen Preston, B.A., J.D., Oscar M. Ruebhausen Distinguished Senior Fellow

      Richard Ravitch, B.A., LL.B.

      Eric S. Robinson, M.B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      John M. Samuels, J.D., LL.M., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Paul Schwaber, M.A., Ph.D.

      Michael S. Solender, B.A., J.D.

      Jacob J. Sullivan, M.Phil., J.D., Oscar M. Ruebhausen Distinguished Senior Fellow in National Security

      Robert Sussman, B.A., LL.D.

      Stefan R. Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Megan A. Wulff, M.P.H., J.D.

      David M. Zornow, B.A., J.D.

      Administrative Forbearance

      DANIEL T. DEACON

      [125 YALE L.J. 1548 (2016)]

      ABSTRACT. This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Article calls administrative forbearance authority. Although legal scholars have recently noted the rise of administrative forbearance authority, they have largely ignored how exactly such a power might operate in the hands of the agency and the various governance functions it performs. Without such knowledge, the case for administrative forbearance authority is necessarily incomplete.

      This Article thus makes two principal contributions to the literature. First, it describes the variety of functions that administrative forbearance authority serves at the agency level, drawing on the previously unexplored histories of various agencies’ experience with such authority. Second, it uses the descriptive account both to develop a fuller normative and constitutional case for administrative forbearance authority and to illuminate the various circumstances in which forbearance can be beneficially employed as a policy tool.

      To defenders of delegation generally, this Article posits that there is no special reason to be wary of administrative forbearance authority and that forbearance can be used as a governance device in previously underappreciated ways. To critics who urge a stronger nondelegation doctrine than the one we have today, I argue that there may be reasons to actually support administrative forbearance in a world where delegations of the traditional type are unlikely to go anywhere anytime soon.

      AUTHOR. Climenko Fellow and Lecturer on Law, Harvard Law School. Many thanks to Nick Bagley, Susan Crawford, Dan Epps, Barry Friedman, Jake Gersen, Jacob Goldin, Don Herzog, Sam Issacharoff, David Kamin, Jo Langille, Maggie Lemos, Leah Litman, Todd Rakoff, Ricky Revesz, Matthew Stephenson, Cass Sunstein, and participants in the Climenko Fellows works-in-progress workshop, the NYU School of Law Furman Scholars Seminar, and the Harvard Law School Becoming a Law Professor Seminar for valuable guidance and comments. I previously represented telecommunications carriers in some of the proceedings discussed below. All opinions, errors, etc. are my own.

      ARTICLE CONTENTS

      INTRODUCTION

      In 2015, the Federal Communications Commission (FCC) reclassified broadband Internet service providers (ISPs)—companies like Comcast and Verizon—as common carriers under the Communications Act.¹ That decision, heralded by many,² automatically subjected such providers to a range of statutory obligations. At the same time, however, the Commission announced it will forbear from—render inapplicable—many of these requirements. The Commission can do so because of a provision in the Communications Act, little known outside of communications-law circles, allowing the FCC to formally deprive portions of the Act of their legal force.³ In other words, the statute expressly allows the Commission to render statutory requirements no longer legally binding.

      Delegations to agencies of the power to deprive statutory provisions of legal force and effect—what this Article calls administrative forbearance authority⁴—raise a set of questions distinct from those associated with traditional delegations of authority to agencies to fill in the details of a regulatory scheme. What roles does such an authority serve in the hands of an agency? Do the traditional justifications for delegating authority to make law also apply to delegations that allow an agency to relieve regulated parties of their statutory obligations? How does such a power compare to other forms of agency action, such as nonenforcement? Should we have more reason to fear such delegations than we do delegations of the normal sort?

      Although the literature has begun to investigate these and other questions,⁵ it has yet to offer a full descriptive and normative evaluation of administrative forbearance authority. This Article thus makes two principal contributions to the literature. First, it describes the variety of functions that administrative forbearance serves at the agency level, drawing on the ways the FCC and other agencies have used their forbearance authority. Second, the Article uses this descriptive account to mount a normative case for forbearance as a particular form of delegation and to illuminate the range of circumstances in which it might be used. It thus provides a robust defense of administrative forbearance authority that is firmly grounded in both the realities of administration and administrative-law theory.

      The time is ripe for a fuller evaluation of forbearance authority. As many have written,⁶ the current age is characterized by legislative gridlock in which agencies face increasing pressure to tailor statutes that are out of date, overbroad, or simply unworkable.⁷ An expressly delegated power to ease or eliminate statutory requirements, such as that held by the FCC, presents the promise of much-needed regulatory flexibility.

      Forbearance authority is also potentially more legitimate than other tools. Judges and commentators have recently expressed concerns about different kinds of agency actions—especially discretionary decisions not to enforce certain applications of federal statutes—that border on unilateral executive lawmaking.⁸ An express forbearance authority avoids many of the criticisms leveled against these other forms of executive lawmaking: forbearance involves the exercise of a power that Congress explicitly gave to an agency, and an agency’s exercise of its forbearance authority triggers procedures that result in more opportunities for judicial review and public comment than decisions not to enforce a statute.

      That said, forbearance does raise its own set of normative issues, which have been thrust to the fore by forbearance-like provisions contained in high-profile programs such as the No Child Left Behind Act,⁹ as well as by Mitt Romney’s presidential campaign pledge to dismantle the Affordable Care Act through executive action.¹⁰ For one, the traditional policy justifications for delegating authority to an administrative agency—most prominently, agencies’ greater expertise and flexibility vis-à-vis Congress—apply less clearly to administrative forbearance authority. With normal delegations, the typical narrative is that Congress wants to do this or that but isn’t quite sure how and thus delegates power to an agency. Among other reasons, we tolerate delegation because the agency is, under the received view, often in a better position than Congress to know the precise course to chart and can more easily change direction if necessary. But with negative delegations, Congress has already set the requirements and defined to whom (or what) they apply, at least using broad strokes.¹¹ For that reason, the traditional story we tell for normal delegations does not seem, at least at first glance, to apply with full force to forbearance-like delegations.

      Scholars have also recently raised questions about the propriety of forbearance-type delegations. Law professor and historian Philip Hamburger has called an express agency power to nullify statutory requirements astonishing even by administrative standards.¹² Another scholar has written that conferring negative-lawmaking authority on an agency amounts to an abdication of Congress’s core legislative functions.¹³ And writing at the Volokh Conspiracy blog, Professor David Post recently penned that it is [h]ard for [him] to believe that such provisions can pass constitutional muster; it’s like a repeal process, but one not involving Congressional action.¹⁴ For some, agency action formally dispensing with legal requirements simply seems more legislative than other types of agency action. Indeed, a majority of the Supreme Court came close to endorsing this position in Clinton v. City of New York, which invalidated the Line Item Veto Act.¹⁵ Under this view, forbearance authority is constitutionally suspect either because it impermissibly delegates power to agencies or because it violates Article I, Section 7’s bicameralism and presentment requirements.¹⁶

      Even apart from these formal legal concerns, some have voiced alarm that forbearance-type delegations are more likely to be used by agencies in nefarious ways—perhaps to override the will of Congress or to grant regulatory breaks to powerful groups.¹⁷ In an essay noting the rise of what he called government by waiver, for example, Richard Epstein writes that, in part because of the potential for favoritism created by a broad power in the Executive to nullify statutory requirements, such authority represents a particularly dangerous form of government power.¹⁸

      This Article addresses these issues in the following ways. First, it develops an understanding of the roles played by forbearance authority, and, based on this descriptive account, reveals that the primary justifications for delegations to an expert agency apply with full force to negative or forbearance-type delegations. Second, the descriptive account reveals that forbearance, like the more familiar authority to fill in the details of statutes, is properly viewed as implementing (and not overriding) the statute Congress has written, which includes the delegation itself. Thus, an agency exercising forbearance authority no more exercises a purely legislative power to repeal the law than an agency filling in the gaps exercises a legislative power to enact law. Finally, in practice, agencies’ histories with administrative forbearance power do not reveal them to be behaving in particularly problematic ways. Instead, agencies often use forbearance authority to address perennial governance problems that Congress anticipated when it included the delegation in a statute. Of course, the potential for abuse remains, just as it does for any type of government power. But these histories indicate that forbearance need not be viewed as a particularly troubling form of delegation.

      This Article does more than respond defensively to various critiques of forbearance, however. It also highlights several underappreciated benefits of forbearance-like delegations, providing a roadmap for policymakers who are considering when and in what circumstances to include forbearance provisions. The descriptive account shows that forbearance can be used as a policy tool in seemingly counterintuitive ways. For example, Congress has used forbearance as an anticapture device, allowing it to set an initial proregulatory baseline while permitting the agency some flexibility to depart downward from that baseline. Similarly, even though forbearance might appear to be a form of deregulation, forbearance actually can be used in a range of circumstances to facilitate more socially beneficial regulation than might otherwise be possible. Forbearance-type delegations also have underappreciated ancillary benefits for the administrative process. Forbearance may substitute for other types of agency action, such as agency nonenforcement decisions, that pose graver normative concerns. In addition, a number of the standard critiques of delegation apply with less force to forbearance-like authority. Thus, to the extent forbearance-type delegations can stand in for garden-variety positive delegations, even critics of delegation generally may have reason to support them.

      The argument proceeds in four parts. Part I sets up the problem. In the current age of congressional gridlock, scholars and politicians have increasingly turned their attention to the executive branch for potential solutions. Administrative forbearance is thus a particularly attractive tool at this point in time. Yet it still is only partially understood.

      Part II turns to the task of describing the functions that administrative forbearance serves in the hands of an agency. A forbearance option can be used to address familiar problems, such as when a statutory requirement has become unnecessary or counterproductive (the problem of statutory obsolescence), or when the application of a requirement in a particular setting does not seem justified in light of the reasons for the statute (the problem of overinclusiveness or fit). But there are also a number of less obvious ways an agency can use forbearance to pursue beneficial regulatory ends. Somewhat paradoxically, one such use is to enable regulation: forbearance can be deployed to selectively regulate in contexts where applying a set of statutory requirements across the board would be unwise.

      Part III pivots from the descriptive to the normative. Section III.A applies the primary policy-based justifications for administrative delegation to the case of forbearance-type delegations and argues that those justifications apply with equal force to forbearance authority. Section III.B then shows that agency action pursuant to forbearance authority is superior to other forms of agency action, such as statutory nonenforcement, for which it may substitute. Because enforcement discretion often operates underground, shielded from public view, policymaking through enforcement is vulnerable to criticism on process grounds: nonenforcement often is not transparent and can be used to evade the Administrative Procedure Act’s (APA) notice-and-comment requirements, escape judicial arbitrariness review, and limit opportunities for cost-benefit analysis. By contrast, forbearance decisions typically are made openly, are immediately appealable to the courts, and are announced in a form amenable to calculating the relevant costs and benefits.

      Section III.C then addresses various objections that might be lodged against administrative forbearance. An important theme of this Section is that, in many cases, the objections to traditional positive delegations apply with less force to negative delegations. After all, when it delegates forbearance authority, Congress is the one responsible for setting the regulatory default. As I explain, agency deviations from the default often are easier to monitor and address than agency actions setting regulatory requirements in the first place.

      Finally, Part IV considers the promises and limits of forbearance as a policymaking tool. Section IV.A describes the conditions under which Congress should include forbearance authority in its statutes and under which we might be skeptical of forbearance as a normative or policy matter. Section IV.B then invokes recent regulatory controversies involving the Voting Rights Act (VRA) and the Clean Air Act to describe how a forbearance authority might operate in areas in which it currently does not exist.

      I. BACKGROUND

      A. Old Statutes, Hyper-Statutes, and Executive Policymaking

      According to many scholars, agencies—and the executive branch more generally¹⁹—are in a tough spot. The current political climate, marked by congressional gridlock and extreme partisanship, has hampered legislative policymaking.²⁰ For any number of reasons, Congress increasingly lets old statutes that are out of step with current realities languish on the books.²¹ In the rare political moments where Congress produces legislation, the legislation tends to be sprawling and, at least according to some, ill-conceived or even incoherent—a trend toward what one recent article calls hyper-legislation.²² In this climate, agencies are increasingly responsible for making sense of that legislation. The result is what two scholars have recently described as a significant uptick in executive policymaking in the absence of Congress.²³ In particular, agencies face growing pressure to tailor statutes—using enforcement discretion or otherwise—to address real governance concerns.²⁴

      Such agency action seems almost inevitable, especially in the current environment.²⁵ If Congress’s statutes pose serious governance problems that Congress may not be prepared or able to address, the task of working out those problems often will fall, for good or ill, to the agencies charged with administering the statutes. However, these agency-centered responses to congressional dysfunction pose potential legitimacy issues: most fundamentally, are these exercises of power lawful in the absence of express congressional approval? Questions like this have vexed lawyers and scholars in the debate over President Obama’s immigration policies, for instance.²⁶ And if recent history is an indication, they will continue to plague administrative-law practice for years to come.

      B. A Way Out? Agency Forbearance Authority

      Because of the governance problems posed by congressional gridlock, administrative forbearance authority—by which Congress grants agencies the express power to deprive the laws it passes of legal force and effect²⁷—may be particularly appealing to modern policymakers. Of course, forbearance does not itself solve the problem of gridlock. Because forbearance is an express power, Congress itself must pass legislation to grant it. Nonetheless, there is reason to think that Congress may be more able to pass legislation involving broad forbearance provisions than legislation lacking such provisions: as Judge (then Professor) David Barron and Professor Todd Rakoff have noted, forbearance-like delegations may help facilitate compromise on legislation, especially in the current political environment.²⁸

      Administrative forbearance is distinct from other kinds of agency power that it resembles. It is different from enforcement discretion in that it operates to formally nullify statutory requirements on a prospective basis, at least if not reinstated by the agency during a subsequent rulemaking.²⁹ It is also different from, though related to, longstanding concepts such as administrative waivers and variances. Traditionally, waiver has referred to agencies’ ability to waive their own regulations, not the requirements contained in a statute.³⁰ Some statutes, however, do contain provisions allowing agencies to waive statutory requirements in exceptional circumstances and in particular cases—often, though not always, when national security is at issue.³¹ Similarly, statutes may allow agencies to grant variances from statutory or regulatory requirements; these variances allow the agency to make such requirements more or less strict for a particular regulated party.³² Forbearance is different. While waivers and variances tend to involve one-off exceptions based on facts particular to the regulated entity involved, forbearance operates on the wholesale level, resembling the exercise of prospective policymaking. With forbearance, in other words, an agency decides based on shared facts that a statutory requirement should be eliminated across the board or with respect to an entire category of regulated entity.³³

      An expressly granted authority to void statutory requirements solves the particular legitimacy problem posed by unilateral executive action. When an agency acts pursuant to a congressionally delegated power to deprive statutory provisions of legal force or effect, the agency is not going it alone but rather exercising authority granted by Congress. In these cases, the executive branch’s power is traditionally at its apex.³⁴

      Although an expressly granted authority to deprive statutory provisions of legal force and effect is a solution to one problem, it also raises another: that of delegation. Simply put, does the Constitution permit Congress to grant agencies such a power? And normatively, as opposed to strictly legally, should we allow Congress to provide agencies with the express authority to override statutes that Congress itself has

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