Reviewing Agency Action for Inconsistency with Prior Rules and Regulations

Abstract

In various contexts, Congress and courts have directed that agency action be unreviewable to prevent judicial second guessing of certain discretionary administrative acts. Yet, when agencies tie their own hands through regulations or directives, then the courts have exercised review despite the discretionary resource questions otherwise involved. This paper explores the costs of predicating review on the agency's failure to comply with prior rules and directives, and suggests alternative approaches to minimize such costs.

JEL Classification: K23