Justiciability and Remedies in Administrative Law Challenges

Abstract

The Supreme Court’s changing composition and, relatedly, its increasing skepticism for the current structure and pervasiveness of the administrative state have given rise to increased constitutional challenges to agency actions that seem increasingly likely to be successful. However, the Court’s jurisprudence (and consequently the lower courts’ application of it) on the proper remedy when a constitutional violation is found is fractured and underdeveloped. Particularly, two strands of jurisprudence—justiciability and remedies—are in tension with one another. This conflict also puts pressure on the Court’s commitment to the doctrine of constitutional avoidance.

The root of the tension is the “writ-of-erasure fallacy.” The judicial power granted to federal courts in Article III does not allow judges to repeal laws or remove statutes from the U.S. Code; such a system was considered and rejected in 1787. Instead, judicial review allows judges to refuse to enforce certain laws if they deem these laws “repugnant to the constitution” and to enjoin executive officials from particular methods of enforcing the law.

Judges commit the writ-of-erasure fallacy when they purport to “strike down” or “nullify” laws they have determined to be unconstitutional and treat them as though such laws are vetoed, repealed, or erased. Although the linguistic part of the fallacy is important, it is the effect on the law that is key. That is, while judges often err when they purport to strike down or nullify a law, it is a no-harm–no-foul situation until they—or others—subsequently treat the law as vetoed, repealed, or erased. (And judges who do not use faulty language can still commit the fallacy by treating laws as such.) Judges who reject the writ-of-erasure fallacy accept a limit on the remedies that judges can order. To avoid the awkward double negative in the phrase “rejecting the writ-of-erasure fallacy,” I use the term “remedial limit” or the phrase “accepting the remedial limit.”

This remedial limit was recognized at the inception of judicial review, even though the rhetoric surrounding judicial review did not always reflect it. Over time, courts increasingly used lackadaisical and careless language, eventually coming to believe that Supreme Court decisions could actually nullify a law, as if the legislature itself had repealed it or the executive vetoed it.

Since Jonathan Mitchell presented the framework for the remedial limit in The Writ-of-Erasure Fallacy in 2018, two Supreme Court justices, sixteen circuit judges, and a magistrate judge have cited the remedial limit approvingly. However, none of these opinions has squarely focused on its implications for current justiciability doctrines and remedies, particularly in administrative law. Generally speaking, when a court purports to nullify a statute, and doing so does not redress the plaintiff’s alleged harm, the court is issuing a mere advisory opinion. Thus, in administrative law cases where courts purport to nullify a constitutionally impermissible provision, the ultimate judgment must address the plaintiff’s harm. Because courts cannot strike down laws, an opinion untied to the remedy is merely an advisory opinion on how it would rule in a future case and not connected with a live case or controversy.

This Essay seeks to bring the doctrines of remedies and justiciability in administrative law cases into cohesion. Part I identifies and explains the error courts are making—deciding constitutional questions without first deciding whether that decision can remedy the plaintiff’s alleged harm or whether that decision is necessary to resolve the dispute. Part II explores changes needed to make the doctrines consistent by examining how they should apply to a recent case and a pending case. In particular, courts should ensure that determining that a provision is unconstitutional will give relief to the plaintiff or be necessary to the resolution of the case. And Part III briefly analyzes the systemic and practical consequences of such changes.

Keywords: administrative law, justiciability, standing, constitutional avoidance