Improving Statutory Deadlines on Agency Action: Learning from the SEC’s Missed Deadlines Under the JOBS Act

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  • August 3, 2015

The Securities and Exchange Commission (SEC) has received a great deal of negative attention for missing deadlines imposed by various provisions of the JOBS Act. This Note argues that these missed deadlines were at least partially due to Congress’s problematic use of statutory deadlines. Ms. Bubar begins by discussing the Administrative Procedures Act (APA), which sets forth the rulemaking procedures that an agency must follow, and also explains the legal implications of statutory deadlines, describing how they can increase the likelihood of a successful claim against an agency for unreasonable delay, affect a court’s evaluation of agency compliance with the APA, and affect “arbitrary and capricious” review.

Ms. Bubar then describes why statutory deadlines are used—to reduce regulatory delay, to align agency decision making with legislative intent, and to give Congress an easy way to narrow agency discretion in areas where it does not have expertise. She also addresses the problems created by their use, explaining how deadlines reduce agency flexibility, exacerbate resource constraints, can result in decreased quality of rulemaking, and can be used by Congress as a political tool. Using these purposes and problems as a framework, Ms. Bubar analyzes the use of statutory deadlines in the context of the SEC and concludes that while deadlines can accelerate regulatory action by the SEC and align the SEC’s rulemaking action with legislative intent, the SEC’s failure to meet its deadlines is at least partially due to Congress’s problematic use of deadlines. She argues that, in the context of the SEC, statutory deadlines can have a positive effect on agency action, as long as they are not used in a problematic way. Lastly, Ms. Bubar makes three recommendations for improving Congress’s use of deadlines.