The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue
Christopher J. Walker
Ohio State University (OSU) - Michael E. Moritz College of Law
March 12, 2014
George Washington Law Review, Summer 2014, Forthcoming
Ohio State Public Law Working Paper No. 199
When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Despite that the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation-of-powers values that motivate the rule. This Article is the first to conduct such an investigation — focusing on judicial review of agency immigration adjudications and reviewing the over 400 published court of appeals decisions that have addressed the remand rule since the Court rearticulated it in 2002.
The Article finds that courts generally fail to appreciate the dual separation-of-powers values of Article I legislative and Article II executive authority at issue and that some circuits have not been faithful to this command. Courts that refuse to remand seem do so when they believe the petitioner is entitled to relief and remand would unduly delay or, worse, preclude relief because the petitioner would get lost in the process. In refusing to remand, courts express perceived Article III concerns of abdicating their authority to say what the law is and to ensure that procedures are fair and rights are protected in the administrative process. In reviewing the cases, however, this Article uncovers a novel set of tools that courts have developed to preserve their role in the process and enhance the court-agency dialogue. Instead of ignoring the remand rule, this Article suggests that courts utilize and further develop this dialogue-enhancing toolbox to exercise their constitutional authority while preserving the delicate balance of powers between courts and agencies via the ordinary remand rule.
Number of Pages in PDF File: 56
Keywords: administrative law, separation of powers, dialogue, deference, Ventura ordinary remand ruleAccepted Paper Series
Date posted: April 2, 2013 ; Last revised: March 13, 2014
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