Modes of Regulatory Enforcement and the Problem of Administrative Discretion

In addition to regulating different substantive areas, administrative agencies differ in the enforcement systems they use to implement regulatory regimes. In this article, Professor Bhagwat identifies a crucial distinction between ex ante enforcement regimes, which authorize agencies to review, approve, or disapprove of regulated conduct before it occurs, and ex post regimes, which limit agencies to prosecuting and penalizing regulatory violations after they have occurred. Ex ante authority appears in a variety of guises, including licensing schemes, preclearance or preapproval requirements, and certification requirements. Their common feature is that ex ante enforcement regimes place the burden of inertia, delay, and inaction on regulated entities, by prohibiting regulated conduct until after agency approval is obtained, or agency disapproval is successfully challenged in the courts (ex post regimes, by contrast, leave the burden of inertia on agencies). The practical consequence of this is that ex ante enforcement powers greatly increase the substantive lawmaking power, as well as the discretionary authority of both agencies as a whole and individual agency personnel, by shielding regulatory decisions from both internal agency and judicial supervision. Because of this, Professor Bhagwat argues, Congress should be extremely cautious about granting agencies ex ante authority, especially in substantive areas where agency discretion can threaten important social interests. On the other hand, this article also notes potential benefits from ex ante regulatory authority, primarily in terms of preventing irremediable social harms, and reducing investigatory and remedial burdens on agencies. The balance of the article identifies specific factors relevant to evaluating the wisdom of granting ex ante enforcement authority to an agency, and then applies the resulting framework to a number of existing regulatory regimes