Waivers, Flexibility, and Reviewability

Abstract

In this Comment, I shall explore the issue of reviewability, as discussed by Krent, in the context of one flexible approach to regulation-- express agency waiver of regulations. Part I of this Comment addresses the increased need for flexible solutions in the administrative context, such as waiver of rules, and provides some examples. Part II argues that, especially in the context of flexible regulatory approaches, Heckler v. Chaney, a key case for determining whether courts will review agency decisions, should not be given a reading that precludes review of agency inaction. It should be read to value consistency with program purposes and across similar adjudicative cases, as well as consistency with the letter of published regulations. In Part III, I suggest that Krent's process proposal may provide for too little oversight of agency decisionmaking in the waiver context. In considering appeals of agency flexibility decisions, such as administrative waiver of regulation, courts should generally err in favor of, rather than against, reviewability; in the waiver context, the third-party reliance approach examined by Krent provides a more legitimate approach than the process approach for determining the appropriateness of review.