Closing the Courthouse to Immigrants
24 Administrative & Regulatory Law News 1 (1999).
3 Pages Posted: 21 May 2016
Date Written: Winter 1999
One of the hallmarks of the American administrative law system is the presumption of judicial reviewability of agency action. As the Supreme Court said in Abbott Laboratories, 387 U.S. 136, 140 (1967), "the Administrative Procedure Act's 'generous review provision' must be given a 'hospitable' interpretation." Under the APA, §701(a), judicial review is available unless (1) judicial review is precluded by statute or (2) the agency action is "committed to agency discretion by law." These provisions have been read narrowly by reviewing courts so that clear evidence of Congressional intent to preclude is required under prong (1), and even then review may be available for constitutional claims, and prong (2) may be invoked only where there is "no law to apply."
We administrative lawyers assume the availability of review in most contexts. Where it has been restricted, we have supported a change in the law-as in the Veterans Judicial Review Act of 1988, 38 U.S.C. §§ 7251 et seq., in which this Section and the ABA supported a change to allow review. However, this long-standing presumption of reviewability is now under severe attack in one corner of administrative law that probably has more to do with the adjudication of individual rights than any agency of the Federal Government - immigration.
Keywords: administrative law, immigration, judicial review
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