The United States Department of Labor has similarly utilized an abnegation strategy, relying on disclaimers of statutory authority under the Fair Labor Standards Act as a justification for a 2017 rollback of a finalized regulation designed to ensure that workers retain tips.
(116) This instance of abnegation broadly disclaimed power to regulate animal welfare, stating that such regulation was "not authorize[d]," the agency's power was "authoritatively prescribed" by the statute, and that it "lack[ed] the power to tailor legislation to policy goals, however worthy, by rewriting unambiguous statutory terms." (117) However, the agency waffled a bit on the abnegation claim, in one instance calling "market-based solutions ...
(121) This proposal and the later tentative final order relied on a weaker form of statutory abnegation. The agency did not wholly disclaim power but instead stated the earlier action was founded on unsound "statutory construction" and claimed the new action was based on a "better reading" of the statute.
Under a slightly different form of statutory abnegation, an agency does not decisively disavow power but rather identifies ambiguity about agency authority and then rationalizes a power retreat as wise in light of such doubt.
In these instances of statutory abnegation, several common elements are apparent.
(129) Through statutory abnegation, the agency reduces burdens imposed on regulated entities.
Recent uses of statutory abnegation are also notable in what they decline to do or include.
These abnegation actions hence seem to reflect at least an implicit view that the more the agency argues that it lacks power through statutory abnegation, the less it needs to engage with other factors, such as the basis for the earlier (but now abandoned) view of the agency's power or the underlying facts, data, or scientific contingencies relevant to the old and new action.
Another category of abnegation likely exists but is hard to identify and raises a different set of issues; it hence is excluded here, apart from this limited identification.
As a result, there may be no written documents declaring or explaining an abnegation rationale or whether a different view is tenable.
(136) might seem to support statutory abnegation, that case did not involve abnegation at all.
Another common sort of action often characterized as deregulatory is neither an example of statutory abnegation nor even an example of policy change.