Regulatory Hide and Seek: What Agencies Can (and Can’t) Do to Limit Judicial Review
57 Pages Posted: 1 Aug 2011 Last revised: 26 Aug 2011
Date Written: August 1, 2011
Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies’ role in modulating that oversight. We consider cases in which the timing or form of an agency action has curtailed judicial review of the agency’s policy choices. In some such cases, the agency’s choice of form deprived the court of statutory or Article III jurisdiction; in others, the court chose to delay or deny review to avoid interfering with agency policy development. Despite these differences, though, all such “reviewability” cases pose important constitutional questions about the degree to which an agency should be able to limit judicial oversight of its activities.
We argue that courts pay too little attention to these questions, instead focusing solely on the reviewability objections raised in each case. When a party challenges a broad agency program that has not yet been implemented, for example, the court typically dismisses the challenge as unripe. But the agency may have structured the program, or the rollout of the program, to achieve large practical effects with little judicial oversight. We suggest courts should ask whether constitutional principles permit an agency to thwart review in this way.
We first identify the separation of powers and due process issues lurking in many reviewability cases. We then turn our attention to two recent Supreme Court cases and a D.C. Circuit case in which the defendant agencies argued their actions were unreviewable. These cases well illustrate some of the concrete implications of our broader argument: By elevating the importance of the timing and form of agency actions, reviewability doctrines give agencies the power to limit court oversight, and this power may, in turn, encroach on congressional authority and undermine the constitutional legitimacy of the governing statutory regime.
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