Barring Judicial Review

Abstract

Whether judicial review is available is one of the most hotly contested issues in administrative law. Recently, laws that prohibit judicial review have sparked debate in the Medicare, immigration, and patent contexts. These debates are likely to continue as the recently created Medicare price negotiation program is implemented. Yet despite debates about the removal of judicial review, little is known about how often, and in what contexts, Congress has expressly precluded review.

This Article fills that gap by conducting an empirical study of the U.S. Code. It creates an original dataset of laws that expressly preclude judicial review of agency action, i.e., “judicial review bars.” It reveals that express preclusion is a phenomenon: at least 190 statutory provisions expressly bar judicial review of agency actions. This Article then creates a taxonomy of actions barred from review. Most review bars target internal agency management decisions such how to allocate resources, set priorities, and manage personnel.

Because judicial review has traditionally been considered a core tool for overseeing agencies, this Article next investigates alternative oversight tools that exist for actions barred from judicial review. When judicial review is barred, other structures often exist for political oversight, internal supervision, and public participation. Strikingly, review bar statutes often expressly create structures to facilitate such oversight. Alternative oversight structures include requirements to send reports to Congress, to establish internal procedures, to consult with stakeholders, and to publish decisions. Furthermore, many review bars involve government spending programs, which are subject to appropriations oversight.

Like judicial review, alternative oversight tools play an important role in promoting democratic values of deliberation, inclusiveness, and public accountability in the administrative state. A recent example at the Patent Office illustrates how the combination of review bars with alternative oversight tools can balance efficient implementation of programs with the need to protect individual interests and democratic values. Given the significance of alternative oversight tools in monitoring agencies, this Article argues that courts should consider the availability of alternative oversight tools when construing review bars, and policymakers should do the same when designing regulatory programs.

Keywords: administrative law, judicial review, agency oversight, patent law, health law, immigration law, Inflation Reduction Act

JEL Classification: K23