	Introduction

During the 113 th Congress, the Obama Administration announced that certain federal agencies would not enforce specific aspects of the Affordable Care Act (ACA) for a period of time in order to allow the public to further prepare for proper compliance with the law in the future. This has led to numerous questions regarding how courts treat administrative delays of regulatory programs. This report will discuss the general legal principles applicable to judicial review of administrative delays in two different contexts: (1) delays in meeting a specific statutory deadline for implementing rules or completing particular adjudications, and (2) delays in the enforcement of a provision of law on the public at large. The report will then address whether the procedures outlined in the Administrative Procedure Act (APA) apply to these delays. The first type of agency delay—delays in meeting a specific statutory deadline for implementing rules or completing particular adjudications—arises when Congress has enacted a statute that expressly requires an agency to take a specific action by a specific date. The second type of delay occurs when an agency delays the enforcement of a statutory prohibition or requirement that Congress has imposed on third parties. An agency generally implements this delay by announcing that, as an enforcement policy, the agency will not pursue or punish non-compliance with the law for a certain period of time. Instead, courts will often undertake a balancing test to determine whether the court should force the agency to act. Federal agencies generally have flexibility in determining whether and when to initiate an enforcement action against a third party for violations of a law the agency is charged with administering. However, as mentioned above, an agency may be subject to a suit by a party seeking to compel the agency to take action.
Congress regularly authorizes and requires administrative agencies to implement and enforce regulatory programs. As such, agencies routinely make decisions about when to promulgate regulations and when to enforce statutory requirements against parties who violate the law.
During the 113th Congress, the Obama Administration announced that certain federal agencies would not enforce specific aspects of the Affordable Care Act (ACA) for a period of time in order to allow the public to further prepare for proper compliance with the law in the future. This has led to numerous questions regarding how courts treat administrative delays of regulatory programs. When can a suit be brought to force the agency to apply the law?
It is important to distinguish between two distinct types of agency delays: (1) delays resulting from when an agency fails to meet a statutory deadline for promulgating rules or completing particular adjudications, and (2) affirmative decisions to withhold enforcement of a provision of law on the public at large. The former arises in a scenario in which Congress has enacted a statute that expressly requires an agency to take a specific action by a certain date that the agency fails to meet. Because agencies can often struggle to meet tight congressional deadlines imposed by laws, courts have established a balancing test, known as the TRAC test, to determine whether the agency should be compelled to take action. The second type of delay occurs in a scenario in which an agency refuses, for a period of time, to enforce a statutory prohibition or requirement that Congress has imposed on third parties. This type of delay is generally implemented by announcing a period of non-enforcement during which the agency will not pursue or punish non-compliance with the law. Courts determine whether these delays are reviewable in court by following the Supreme Court's holding in Heckler v. Chaney.
This report will discuss the general legal principles applied in determining whether administrative delays are reviewable in court in these two different contexts and then address whether the procedures outlined in the Administrative Procedure Act (APA) are applicable to these delays.