The Puzzling Presumption of Reviewability

56 Pages Posted: 3 Sep 2013 Last revised: 25 Mar 2014

See all articles by Nicholas Bagley

Nicholas Bagley

University of Michigan Law School

Date Written: September 3, 2013


The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors — appellate-style arbitrariness review — was not only unheard of prior to the twentieth century, but was commonly thought to be unconstitutional. The ostensible statutory source for the presumption — the Administrative Procedure Act — nowhere instructs courts to strain to read statutes to avoid the preclusion of judicial review. And although the text and structure of the Constitution may prohibit Congress from precluding review of constitutional claims, a presumption responsive to constitutional concerns would favor review of those claims, not any and all claims of agency wrongdoing.

As for policy, Congress has the constitutional authority, democratic legitimacy, and institutional capacity to make fact-intensive and value-laden judgments of how best to weigh the desire to afford private relief against the disruption to the smooth administration of public programs that such relief may entail. Courts do not. When the courts invoke the presumption to contort statutes that appear to preclude review to nonetheless permit it, they dishonor Congress’s choices and limit its ability to tailor administrative and regulatory schemes to their particular contexts. The courts should end this practice. Where the best construction of a statute indicates that Congress meant to preclude judicial review, the courts should no longer insist that their participation is indispensable.

Keywords: statutory interpretation, administrative law, canons of construction

Suggested Citation

Bagley, Nicholas, The Puzzling Presumption of Reviewability (September 3, 2013). Harvard Law Review, Vol. 127, 2014; U of Michigan Public Law Research Paper No. 362. Available at SSRN:

Nicholas Bagley (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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