12/10/2021 - Faculty

Structural Deregulation—Jody Freeman and Sharon Jacobs in the Harvard Law Review

“Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government.  This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call ‘structural deregulation,’ is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed ‘presidential administration.’

“Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies understaffed and without permanent leadership; marginalizing agency expertise; reallocating agency resources; occupying an agency with busywork; and damaging an agency’s reputation. Structural deregulation differs from traditional ‘substantive’ deregulation, which targets the repeal of particular agency rules or policies. While substantive deregulation may have serious consequences, it is relatively transparent, limited in scope, and subject to legal challenge. By contrast, structural deregulation is stealthier. It is death by a thousand cuts.” Read a summary of Structural Deregulation in the Harvard Law Review or the full article Structural Deregulation in the Harvard Law Review.