Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia

16 Pages Posted: 20 Jul 2017

Date Written: July 17, 2017

Abstract

This essay contrast two different approaches to reviewability in administrative law, one associated with Justice Antonin Scalia, the other associated with Justice John Paul Stevens, and also on display in recent litigation over the Trump administration's "travel ban." Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that "general programs" and "general policies" are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the paradigmatic business of courts is to review specific applications of agency rules to particular parties. For Justice Stevens, by contrast, the principal role of courts is to say what the general rules of law are, leaving agencies (reasonable) discretion in application.

The two approaches differ as to the relationship between reviewability and the idea—perhaps Justice Scalia's most famous contribution to legal theory—that the rule of law is best understood as "a law of rules." On the Stevens view, reviewability should attempt to ensure that courts review the overall legality of programs and policies to keep the administrative state within the broad bounds of the rule of law. The Scalia view, by contrast, admits into court only agency action at the point of specific application, but then demands that judges analyze the validity of the specific application under general rules. The rule of law, qua law of rules, operates primarily as a constraint on the types of rationales courts may give for their decisions of particular cases, once those cases are already in court.

Suggested Citation

Vermeule, Adrian, Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia (July 17, 2017). 92 Notre Dame L. Rev. 2163 (2017). Available at SSRN: https://ssrn.com/abstract=3004071 or http://dx.doi.org/10.2139/ssrn.3004071

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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