GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Working

Abstract

Administrative delay plagues the modern regulatory state, yet scholars and courts lack a coherent framework for analyzing when delay becomes unlawful and how to remedy it. This Article provides the first comprehensive examination of judicial oversight of agency delay, tracing the evolution from common law mandamus through the delay provisions of the Administrative Procedure Act. It reveals critical distinctions between these mechanisms that courts have increasingly elided, leading to doctrinal confusion and ineffective remedies. On account of the second Trump administration’s Department of Government Efficiency initiatives, this topic takes on unprecedented urgency because administration policies to reduce workforce and restructure the executive branch agencies will rapidly lead to a dramatic increase in delays across the administrative state. This Article makes three contributions. First, it illuminates the forgotten role of mandamus as a check on bureaucratic delay by excavating its development from prerogative writ to modern remedy. Second, it demonstrates how courts have improperly conflated mandamus with APA delay claims, obscuring important differences in their scope, standards, and available relief. Finally, it proposes a new framework for evaluating agency delay that better serves congressional intent while respecting executive branch resource constraints. This framework would replace the malleable and increasingly ineffective factors in the prevailing judicial review standard for agency delay with more structured analysis of agency operations, congressional deadlines, and regulated party impacts. The Article’s insights are intended to help the Judiciary more effectively police the boundary between permissible administrative discretion and unlawful foot-dragging—a critical task as political forces threaten to increase delays across the regulatory state as a consequence of shrinking government.

GW Paper Series

2025-17

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