Abstract

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of administrative reliance has been underdeveloped by the courts and underexplored in legal scholarship. The resulting confusion allows partisan litigants—including States—to effectively veto federal policy change and allows the judiciary to subsume policymaking power traditionally wielded by the executive branch.

This Article fills an important gap in the literature and begins to present a coherent understanding of administrative reliance. It provides the first in-depth account of the doctrine’s development and evolution, and it looks to the doctrine’s history to identify what values administrative reliance seeks to protect. This Article argues that courts should adopt a threshold inquiry to focus administrative reliance–based review in a way that adheres to these values, and that privileges reliance-based claims asserting concrete expectations arising from rights, statuses, or benefits previously granted through agency action.

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