Reasonableness and Proportionality

Abstract

All systems of administrative governance must decide whether to provide for substantive review over administrative decisions that comply with all the prescribed formalities and are otherwise lawful, and if so, how intensive the review should be. These are high-stakes questions. If courts review administrative choices too aggressively, they may end up effectively substituting their own judgment for the administrators’. Substitution of judgment defeats the purpose of delegating power to agencies, which have subject-specific expertise that courts lack. It also can raise separation of powers concerns, if courts are arrogating to themselves control over matters that has in fact been vested in agencies. On the other hand, if substantive review is too lax, or lacking altogether, regulated parties and the public may be left more vulnerable to administrative decisions that are arbitrary, inefficient, or wanting in other ways. The consequences, for individual freedom, efficiency, and governing legitimacy writ large, can be significant.

Courts around the world have employed different doctrines to review the substance of agencies’ policy choices. This piece focuses on two canonical approaches: reasonableness and proportionality.

Keywords: administrative law, judicial review, discretion, separation of powers, reasonableness, Wednesbury unreasonableness, proportionality

JEL Classification: K23