Judicial Review of Agency Inaction: An Arbitrariness Approach

159 Pages Posted: 27 Jul 2004


This Article further develops a novel theory of agency legitimacy by applying it to the law governing judicial review of agency inaction. The Article demonstrates that the Supreme Court's reluctance to allow judicial review of agency inaction is consistent with the prevailing theory of agency legitimacy, which posits that agency decisionmaking should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this theory reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the source of the problem.

The source of the problem, this Article contends, is that the current law governing judicial review of agency inaction is inconsistent with the founding principles of the administrative state. Those principles are dedicated not only to promoting political accountability, but to preventing administrative arbitrariness - and reserve a role for judicial review toward that end. This Article shows that agency inaction raises a concern for administrative arbitrariness because it is susceptible to the same narrow influences that derail agency action from public purposes. Agency inaction that reflects such influences, though often rational from a political standpoint, nonetheless is arbitrary and objectionable from a democratic perspective.

To address these influences, the Article proposes changes to the two doctrines that most frequently block judicial review of agency inaction: non-reviewability and standing. Non-reviewability doctrine prevents courts from hearing claims challenging an agency's refusal to enforce legal prohibitions or requirements against violators. Standing doctrine bars certain plaintiffs from pressing such claims. This Article suggests that courts eschew any special prohibitions on judicial review of agency inaction, and, instead, subject agency inaction to the same principles of judicial review that apply to agency action. For example, courts should ask agencies to offer explanations for their non-enforcement decisions and supply standards for their enforcement discretion.

The Article also recommends that courts carve any exceptions to judicial review for agency inaction from established constitutional law principles. Thus, non-reviewability should be understood as an analogue to political question, precluding courts from policing conduct committed to the unfettered discretion of administrative officials. Similarly, standing should be understood as an analogue to nondelegation, precluding Congress through citizen-suit provisions from effectively delegating policymaking power to private parties. More broadly, both non-reviewability and standing should be viewed as links to separation of powers, barring courts from hearing challenges to the generalized manner in which agencies perform their jobs. In offering these analogies, this Article credits the Court's intuition that important constitutional values place some enforcement discretion beyond the reach of judicial review - even if Congress disagrees. But the Article recommends using established separation of powers principles to constrain the intuition from producing doctrines that subvert the prevention of arbitrary agency decisionmaking.

Keywords: agency, judicial review, inaction, arbitrary, non-reviewability, standing, separation of powers, administrative, nondelegation, APA, Utah Wilderness, SUWA

Suggested Citation

Bressman, Lisa Schultz, Judicial Review of Agency Inaction: An Arbitrariness Approach. Vanderbilt Public Law Research Paper No. 04-16, Available at SSRN: https://ssrn.com/abstract=569821

Lisa Schultz Bressman (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-6132 (Phone)
615-322-6631 (Fax)

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