John M. Hindley
88 Geo. Wash. L. Rev. 1193
The conservative members of the Supreme Court desire to radically reshape the status quo of administrative law. To achieve this goal, conservative justices have focused on time preclusion statutes which provide for judicial review of agency action pre-enforcement but close off review once the time period expires. Congress included these preclusion provisions to assure finality, certainty, and efficiency for both agencies and regulated entities. But Justice Brett Kavanaugh’s recent concurring opinion in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., reflects the conservative justices’ desire to limit the reach of these time limiting statutes in favor of more judicial review. Justice Kavanaugh posited statutes like the Hobbs Act, which provides pre-enforcement review but does not explicitly close review unlike other variations of time preclusion statutes, should be read to allow for both pre-enforcement and enforcement review of an agency action. This Essay advocates a different reading. Rather, statutes like the Hobbs Act should be read as closing off review once the time period has lapsed. This view both comports with Congress’s intent and alleviates the burdens of ossification on the administrative process. This Essay further argues that these time preclusion statutes should be read as providing an implied exemption when a party’s claim is not ripe for review during the pre-enforcement time period but becomes ripe outside of the time period. Such an exemption, if recognized by the Court, will alleviate the concerns of the conservative justices yet still respect the will of Congress.
