Introduction
On May 11, 2005, drivers across America received an unpleasant surprise: an impending trip to the Department of Motor Vehicles. (1) As part of a broader package of anti-terrorism legislation, Congress enacted the REAL ID Act, establishing federal requirements for drivers' licenses and other identification cards. (2) The Act prohibited federal agencies from accepting noncompliant documents "for any official purpose," (3) including "entering nuclear power plants," and, more relevant to the average American, boarding commercial aircrafts. (4) Thus, many Americans resigned themselves to a trip to the DMV before the statutory deadline, "3 years after the date of the enactment of this division," or May 11, 2008, when federal agencies would no longer accept noncompliant IDs. (5)
As the initial deadline's fifteenth anniversary approaches, anyone putting off their REAL ID update need not worry: The newest enforcement deadline for the Act is May 7, 2025. (6) Almost 20 years after the Act's passage and 17 years after its initial compliance deadline, federal agencies will follow its mandate and begin to reject noncompliant IDs. This example may seem extreme or anomalous. But it instead illustrates a troublingly common practice in administrative law: agencies consistently failing to meet Congressional deadlines for administrative action. In fact, data collected between 1995 and 2014 shows that federal agencies failed to meet over 1,400 of these statutory deadlines. (7) This amounts to over half of the congressionally imposed (8) deadlines issued during this period. (9)
These delays matter. Agency delay "saps the public confidence in an agency's ability to discharge its responsibilities and creates uncertainty for [regulated] parties." (10) It also deprives citizens of important public health and safety benefits flowing from regulatory regimes. For instance, the REAL ID Act's stated purpose included "establishing] and rapidly implementing]" (11) federal identification standards after recommendations and findings from the National Commission on Terrorist Attacks' 9/11 report. (12) Noting that almost all of the 9/11 hijackers fraudulently obtained U.S. identification documents, the Commission recommended that the federal government set nationwide standards to minimize the risk of other terrorist groups doing the same. (13) When Congress tasks federal administrative agencies with implementing such important policies for public safety, delays are especially disturbing. (14)
Fortunately, the Administrative Procedure Act supplies a remedy: Reviewing courts may "compel agency action unlawfully withheld or unreasonably delayed." (15) Enforcement of statutory deadlines, however, does not always provide affected parties with relief. When agencies violate statutory deadlines, federal courts adopt one of two competing approaches. Some courts automatically order the agency to act, (16) but others exercise considerable discretion and apply a multi-factor balancing test in choosing whether to order agency action, in which a missed deadline is just one factor. (17)
This note seeks to situate APA [section] 706(1) and statutory deadlines (18) within the broader framework of administrative law and urge courts to take such deadlines seriously as a matter of congressional oversight. Strict construction of statutory deadlines should appeal to both sides of the fierce debate about the scope and size of administrative agencies, as this approach helps both to realize the benefits of regulatory programs and to strengthen congressional control of agencies. (19)
Section I overviews the pre-APA practice of compelling delayed executive action. It will also provide an account of the legislative history of the APA, exploring [section] 706(1)'s historical meaning and relevance to statutory deadlines. Section II describes how statutory deadlines interact with [section] 706(1). This section includes a discussion of the Supreme Court's seminal case expounding the provision, Norton v. Southern Utah Wilderness Alliance. (20) Section III describes the two dueling lower court approaches to missed deadlines. Section IV describes possible reasons for agency delay and lays out normative arguments explaining why both skeptics and advocates of a robust administrative state should support the Tenth Circuit's strict constructionist approach to statutory deadlines. Finally, Section V explores an alternative, self-executing type of deadline called "hammer provisions" before concluding that judicial enforcement of standard deadline provisions is preferable.
I. Pre-APA Practice and Legislative History
Judicial practice prior to the APA's enactment clearly authorized courts to compel certain types of action withheld by agencies and executive officers. The Supreme Court has long authorized mandamus as one such remedy available to courts in their equitable discretion. (21) The remedy required the right kind of executive inaction, however: It was available to compel performance of "a precise, definite act, purely ministerial, and about which the [officer] had no discretion whatsoever." (22) These cases gave rise to a "familiar" and related principle: courts may compel performance of such legal commands, but may not "control discretion" or mandate the content of its exercise. (23) When agencies failed to act pursuant to discretionary mandates, courts could order the agency "to take jurisdiction, not in what manner to exercise it." (24) These principles displayed concern about separating judicial power from agency discretion and respect for agency expertise when exercising such discretion.
Cases from around the time of the APA's enactment reflect this understanding of compelling agency action. In Safeway Stores v. Brown, Safeway Stores complained that the Office of Price Administration did not respond to its petitions about price controls within the statutorily specified response period. (25) Because the Administrator's response required him to exercise policy judgment, the Court "require[d] the Administrator to exercise his discretionary power ... without any direction as to the manner in which his discretion should be exercised." (26) Violation of a statutory deadline regularly warranted judicial compulsion of agency action, although courts respected the agency's substantive discretion. (27) The legislative history of the APA indicates that its drafters intended to codify this approach to compelling agency action.
As early as 1929, concerns mounted about the fairness and efficacy of administrative law and adjudications. (28) As a result, President Franklin Delano Roosevelt commissioned then-Attorney General Robert Jackson, who would later serve on the Supreme Court, to "investigate the need for procedural reform in various administrative tribunals and to suggest improvements therein." (29) After the disruption of World War II and "painstaking" consideration, Congress passed the APA in 1946. (30) Four years later, then-Justice Jackson wrote for the Court that the Act "represented] a long period of study and strife; it settle[d] long-continued and hard-fought contentions, and enact[ed] a formula upon which opposing social and political forces have come to rest." (31) This pronouncement is often invoked to urge courts to remain true to the legislative compromises behind the APA and interpret the Act accordingly. (32)
The Final Report from Jackson's Committee devotes little time to compulsion of delayed agency action, mentioning only that judicial review "is adapted chiefly to curbing excess of power, not toward compelling its exercise ... the courts cannot, as a practical matter, be used for that purpose without being assimilated into the administrative structure." (33) This reflects the concern in historical case law that courts might, in compelling agency action, interfere too much with the agency's prerogative to determine the content thereof. (34) The Act's legislative history further demonstrates that the enacting Congress intended [section] 706(1)35 to codify, not revolutionize, existing administrative law practices. The Senate Report on the Act includes an appendix from the Attorney General, stating that this section "declares the existing law concerning the scope of judicial review" and "is not intended to confer any nonjudicial functions or to narrow the principle of continuous administrative control." (36) That principle separated judicial review from making discretionary decisions committed to the agency by Congress.
Finally, the Attorney General's office issued a Manual to the Administrative Procedure Act in 1947. (37) The Manual sought to advise agencies about "the meaning of various provisions of the Act" and describe the government's position at the time. (38) Respecting [section] 706(1), Attorney General Tom Clark identified the remedies available to reviewing courts when compelling agency action. (39) The Department of Justice viewed the section as "codify[ing] these judicial functions." (40) In keeping with these long-extant practices, "the clause does not purport to empower a court to substitute its discretion for that of an administrative agency and thus exercise administrative duties ... However ... a court may require an agency to take action upon a matter, without directing how it shall act." (41) APA [section] 706(1) conferred broad authority on courts to compel legally mandated action, so long as the court did not stray beyond the judicial power to dictate the substance of agency decisions. In doing so, the Act preserved and codified the state of the law in the decades preceding its enactment.
II. APA [section] 706(1) and Statutory Deadlines
APA [section] 706(1) provides a cause of action for enforcement of statutory deadlines in federal court. In a seminal case expounding the provision, the Supreme Court considered when exactly it provides a remedy for agency failures to act. (42) Norton v. Southern Utah Wilderness Alliance involved a...
