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regulation, rulemaking, regulatory decisions, Fair Labor Standards Act, Department of Labor


President Obama has exhibited a steadfast determination to respond with conciliation to intemperate and relentless demands by his political opponents that he dismantle regulation because it is undermining the nation’s economy. Viewed from the perspective of winning either political support or the basis for compromise with Republican legislative leaders, his concessions seem not only to have failed, but have also made matters significantly worse because, as negotiation experts would remind us, responding to highly competitive negotiation tactics with conciliation incites escalating confrontations and even more extreme demands.

The Article uses the Administration’s decision to kill a proposed rule updating “hazardous orders” under the Fair Labor Standards Act for children as young as twelve who work in agriculture. The proposal was issued in the context of a series of gruesome incidents involving teenagers as young as fourteen who were smothered in grain elevators or lost legs to giant augers used to remove crops from elevators and silos. The Department of Labor terminated the rulemaking without even reading the thousands of comments it had received, in part because the American Farm Bureau Federation and its congressional allies grossly distorted the substance of the rule.

The long-term implications of this and similar decisions to subject rulemaking to short-term political calculations will be remembered long after the President leaves office. In the maddening, heavily politicized scrum where regulatory decisions are up for grabs these days, the long-standing tradition of expertise-driven administrative decision making is hanging by a thread, dooming Executive Branch agencies to shy away from controversial rulemaking regarding public health, worker and consumer safety, and the environment in the absence of a statutory mandate, no matter how pressing the problem. Or, as Professor Thomas McGarity rightly warns us, the era of “blood sport rulemaking” is now upon us, with the inevitable result that even the resolution of business-on-business disputes will become far more expensive and unpredictable.

Publication Citation

47 Wake Forest Law Review 503 (2012).


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