Searching for Proportionality in U.S. Administrative Law
The Judge and the Proportionate Use of Discretion (Routledge, 2015)
45 Pages Posted: 9 Feb 2015 Last revised: 12 Feb 2015
Date Written: February 6, 2015
There is no such thing as “proportionality review” in American administrative law, but instead, a number of doctrines that courts deploy to evaluate agency exercises of discretion. In some respects, these frameworks for review resemble proportionality in operation, but there are also notable differences. This essay surveys the doctrines governing judicial review of administrative discretion in the United States, highlighting three distinguishing features of the American approach. First, American judicial review is characterized by a high degree of unpredictability, not only with respect to outcomes, but often with respect to what framework of review is applicable. Second, while classical proportionality review is designed to detect and correct a particular kind of administrative failure — an overreach, in which the government uses measures that are excessive in relation to the ends they are designed to achieve — the American approach is more symmetrical, in that the agency bears the same burden of justification whether it is claimed that its actions go too far or not far enough. Third, reviewing courts in American administrative law tend to “proceduralize” substantive review, focusing more on the agency’s failures to thoroughly ventilate the relevant issues than the merits of the agency’s conclusions, with consequences both for the burdens agencies face before reviewing courts and for the ultimate ability of agencies to realize favored policy options.
Keywords: proportionality, administrative law, judicial review, discretion, deference
Suggested Citation: Suggested Citation