Administrative Law Without Courts

Abstract

As part of the UCLA Law Review’s Symposium on The Safeguards of Our Constitutional Republic, this Article argues that it is a mistake to fixate on courts as the core safeguard in the modern administrative state. So much of administrative law happens without courts. Put differently, federal agencies regulate us in many meaningful, and sometimes frightening, ways that either evade judicial review entirely or are at least substantially insulated from such review. This Article surveys the phenomenon. It sketches out seven categories of such agency action, drawing on examples from both the Obama and Trump Administrations and highlighting some of the relevant scholarship. The Article concludes with a few observations concerning the implications of administrative law without courts for administrative law theory and doctrine and a call for more scholarly attention.

Keywords: administrative law, judicial review, agency guidance, enforcement, rulemaking, agency adjudication, legislative drafting, appropriations, Chevron deference