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Agency delay is a pervasive problem. It occurs in a broad range of policy areas, including environmental protection, healthcare, and financial regulation. The trope of slow and inefficient government agencies has become cliché.

Statutory deadlines are one solution to the problem of agency delay. Attaching a deadline to authorize legislation seems like an obvious way to make agencies act faster. Therefore, scholars and policymakers have urged the use of statutory deadlines to spur agencies to action. They have focused on ways to more vigorously enforce statutory deadlines through negative incentives, such as hammer provisions or mandamus remedies, as well as on the effectiveness and drawbacks of negative approaches.

The current debate neglects positive incentives as another way to encourage agencies to meet deadlines. This Note argues that statutory deadlines can be a superior way of avoiding agency delay when linked to positive incentives (“carrots”) rather than negative incentives (“sticks”). The Note specifically focuses on conditional relaxation of judicial review as a promising mechanism to induce agencies to more appropriately avoid unnecessary delay. Conditional relaxation of judicial review is so promising because it accounts for the costs of litigation and judicial review in a manner that the typical negative incentives do not. This Note will review the relevant current doctrine and debate on enforcement of statutory deadlines, lay out the possible ways to attach positive incentives to statutory deadlines, and in comparing this carrot approach to deadlines to the stick approach, will show the advantages (and limitations) of positive incentives. Ultimately, the carrot approach will be most appropriate where there is a policy need for speed and when an agency faces resource constraints, though such an approach may never be appropriate when there is a strong principal-agent conflict between Congress and the relevant agency.

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court split 5–4 on appointing party lines in striking down for-cause removal protections for the Bureau’s single Director as violating the constitutional separation of powers. Chief Justice Roberts’s majority opinion expounded a novel principle: Significant executive power may not be concentrated in any single individual in the executive branch unless that individual is removable at-will by the President. This Note argues that the majority’s usage of structure and history to constitutionalize this principle was deeply flawed. It is unconstrained by any particular interpretive commitments. Further, it is internally inconsistent, logically flawed, historically opportunistic, and unsupported by a pragmatic consideration of the issue. And the Court’s subsequent decision, Collins v. Yellen—extending Seila Law to invalidate removal protection for the Director of the Federal Housing Finance Agency—has only exacerbated Seila Law’s flaws. I conclude with reflection on agency independence post-Seila Law and a call for pragmatic deference to the political branches.

In its 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court began the process of “bringing discipline” to the various elements of prudential standing and suggested that the doctrine as a whole is inconsistent with the Court’s place in the federal separation of powers. Last year, the litany of opinions delivered by a divided Court in June Medical Services L.L.C. v. Russo manifested ongoing confusion about the fate of prohibitions on third-party standing and generalized grievances—two of the traditional prongs of prudential standing. This Note documents the heterogeneous approaches to prudential standing taken in the lower federal courts since Lexmark, and argues that this confusion is partly attributable to the Court’s misleading analysis of the role of judge-made gatekeeping doctrines in our federal system. Judge-made gatekeeping rules are ubiquitous in the federal judiciary, and courts have adopted a wide-range of approaches in the wake of Lexmark’s failure to identify a principle that could cabin its disfavor to only prudential standing rules. This Note argues that courts should instead acknowledge that judge-made gatekeeping rules like prudential standing’s third-party standing rule do a better job than alternatives in upholding the separation of powers values that are at the heart of the Supreme Court’s jurisdictional jurisprudence.

The Supreme Court for decades has said that Congress, by statute, may create rights and that the infringement of those rights is a sufficient injury to allow standing to sue in federal court. But in TransUnion LLC v. Ramirez, in June 2021, the Court said that federal laws creating rights may be a basis for standing only if the right protected is one for which there is “a close historical or common-law analogue.” This principle, if followed, would mean that countless federal laws—ranging from the Freedom of Information Act to civil rights statutes to environmental laws to the prohibition of child labor—could not be enforced in federal court because they create statutory rights that did not exist historically or at common law. Such an approach would be a radical, undesirable change in the law, particularly as a matter of separation of powers. Congress always has had the authority, and should have the power, to create enforceable rights by statute.