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Time is Not the Enemy

The conservative members of the Supreme Court desire to radically reshape the status quo of administrative law. To achieve this goal, members of the Court have drawn their attention to time preclusion statutes that provide pre-enforcement judicial review of an agency action but closes off review once the time period expires. Congress included these preclusion provisions in order to assure finality, certainty, and efficiency for both agencies and regulated entities. But a recent concurring opinion in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., written by Justice Brett Kavanaugh, reflects the conservative justices’ desire to limit the reach of these time limiting statutes in favor of more judicial review. At issue in PDR Network was the Hobbs Act, which provides pre-enforcement review, but does not explicitly close review unlike other variations of time preclusion statutes. Justice Kavanaugh posited statutes like the Hobbs Act should be read as allowing for both pre-enforcement and enforcement review of an agency action. This Essay will argue that such statutes should not be read in accord with Justice Kavanaugh’s view. Rather, statutes like the Hobbs Act should be read as closing off review once the time period has lapsed. This view both comports with the intentions of Congress and alleviates the burdens of ossification on the administrative process. In addition, this Essay will argue that these time preclusion statutes should be read as providing an implied exemption in instances where a party’s claim is not ripe for review during the pre-enforcement time period but become ripe outside of the time period. As many circuit courts have recognized, parties should be allowed to bring a suit once the circumstances are such that a party’s claim becomes ripe. This Essay will argue that such an exemption, if recognized by the Court, will alleviate the concerns of the conservative members of the Court but yet still respect the will of Congress.