Constitutionally valid statute
authorizes agency action.
Agencies gather information to
Agency decisions can be formal
or informal, legislative or judicial
Decisions are then enforced by
Decisions and enforcement
activities are reviewed by courts
3. Defining Judicial Review
Judicial review – the process whereby
courts exercise control over the findings of
fact and interpretations of law by
Judicial review is not found in the Constitution
Articulated by the Court in Marbury v. Madison
Judicial review allows courts to:
Determine the meaning of legislation
Invalidate statutes that are deemed unconstitutional
4. Defining Judicial Review
Judicial Review and Administrative Actions
Judicial review is generally authorized by the guiding
statute of the agency.
Section 702 of the Administrative Procedure Act also
provides for judicial review of federal administrative
“A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action with the
meaning of a relevant statute is entitled to judicial review
But, section 701(a) states that judicial review is not
Statutes that preclude judicial review
Agency actions committed by law to agency discretion
5. Defining Judicial Review
Judicial Review as Guidance for Administrators
We know that administrative decisions must be grounded
The guiding statute
The Administrative Procedure Act
Statutes and the Constitution tend to be vague
There are not strict rules and guidelines for dealing with
every issue, controversy, policy or situation which
administrators may encounter.
Judicial review creates another source of guidance as
courts establish precedents that can help agencies justify
Agencies will adopt these decisions in their decision making and
6. Defining Judicial Review
Judicial Review as a Check on
Judicial review allows parties to challenge:
Whether an agency has exceeded its statutory
Whether a guiding statute violates the Constitution
Whether an agency action violates due process
Abuses of administrative discretion
7. Two Major Aspects of Judicial
Access to judicial review
Justiciability – whether a case is suitable for judicial consideration.
Exhaustion of administrative remedies
The scope of judicial review
Judicial deference toward administrative discretion:
Chevron v. Natural Resource Defense Council
How much deference should courts give to an agency’s interpretation of its own statutory authority?
When an agency, either in rulemaking or adjudication, finds certain facts and incorporates them into its decisions, how
willingly should judges dispute the facts the agency found?
How freely should judges substitute their own interpretation of the facts for the agency’s interpretation?
How aggressively should courts force agencies to give detailed factual justifications for their decisions?
Administrators were desired for their expertise.
Courts are not experts in policy areas.
Courts should thus be deferential to administrative agencies.
Many have moved away from the view of deference because of:
Inconsistent views of the goals of the agency
Discretion can be used in an arbitrary and capricious manner
Thus, courts should act as a greater check on administrative agencies.
8. Access to Judicial Review
Article III, Section 2:
Gives the power to the federal judiciary
jurisdiction to resolve all cases and
controversies that arise under federal law and
the federal Constitution.
The first bolded term implies that there must be a legal
The second implies the “requirement of adversariness.”
Questions arise over whether a suit contains a
case or controversy that can be adjudicated by
9. Access to Judicial Review:
Cases that are brought too early are thought to not be “ripe.”
United Public Workers v. Mitchell (1947)
But when exactly is a case ripe?
“What if a person or corporation or government agency has
made a decision that will affect others when it is implemented,
but has not yet begun to implement it?”
“Should courts wait until the harm has occurred before deeming
the case adversarial, or should they intervene to examine
whether the harm is legally permissible before it happens?”
A weaker standard for ripeness increases the power of judicial
review and a stronger standard for ripeness decreases the
power of judicial review.
11. Access to Judicial Review:
In order to demonstrate standing, parties must show:
Injury in fact – an actual invasion or abridgement of a person’s
This is not limited to economic harm, but non-economic grounds are
harder to establish.
Individualized harm – an injury, loss, or impairment that
directly affects a person.
Disagreement with an agency policy is not enough.
This is hard for many public interest groups to establish (particularly
environmental) as there is not direct harm to the members.
Cannot sue on behalf of others.
Must show that the other party caused the harm.
Ability to offer a remedy
The party must show that the Court can offer a remedy
13. United States v. Students
Agency Procedures, 412
U.S. 669 (1973)
14. Access to Judicial Review:
Moot – lacking in practical significance.
Courts will not decide cases in which a
controversy no longer exists.
Article III requires a case or controversy and
if a case or controversy no longer exists, then
the Court cannot decide anything.
Not all state constitutions have this requirement.
DeFunis v. Odegaard (1974)
Roe v. Wade (1973)
15. Access to Judicial Review: Exhaustion
of Administrative Remedies
This is simply the idea that before a party can
seek relief from a court, the party must first
pursue any available administrative remedies.
The idea is that the agency should have the
opportunity to correct its own errors before the
This exhaustion of remedies:
Prevents judicial review that is premature or
Protects agency autonomy
Promotes efficiency and economy
16. Access to Judicial Review: Primary
Primary jurisdiction doctrine – where
a matter presented to a court in an
independent lawsuit falls within the
jurisdiction of an administrative agency,
the court, as a matter of comity
(courtesy), should defer ruling on the
issue until the agency has had an
opportunity to resolve it.
17. The Scope of Judicial Review
How aggressive should courts be in reviewing the decisions of agencies?
Aggression could be defined to ways:
The willingness to review an agency decision.
The willingness to defer to the judgment of the agency.
The debate raises arguments on two sides:
Increased scope of review
Courts must review the actions of agencies in order to ensure that persons are not denied due process
or treated arbitrarily or capriciously.
This also ensures that courts correct the errors of agencies and act as a check on administrative
Make sure agencies conform to:
Statutory authority and limitations
Due process requirements
Decreased scope of review (deference)
There are simply too many cases coming out of agencies for courts to review.
Courts do not possess expertise and agencies do.
Thus, courts should not be reviewing the decisions of agencies.
Courts should not substitute their judgment for that of an agency empowered by a popularly elected
Notice that Chevron gave increased deference to administrative agencies.
Also note that courts review agency actions with a presumption of correctness.
Thus challengers carry the burden of proving that the agency’s action(s) are incorrect.
18. Agency Action Committed to
Recall that Section 702 of the Administrative
Procedure Act says:
“A person suffering legal wrong because of
agency action, or adversely affected or aggrieved
by agency action with the meaning of a relevant
statute is entitled to judicial review thereof.”
But, section 701(a) states that judicial review
is not applicable to:
Statutes that preclude judicial review
Agency actions committed by law to agency
20. The Hard Look Doctrine
This case emphasizes what is called the “hard look doctrine”.
Motor Vehicle Manufacturer’s Association v. State Farm Insurance (463 U.S. 29, 1983)
Here the courts take a hard look at the agency’s actions and ensure that there is a
reasoned basis for their decisions.
It ensures that agencies take a hard look at the basis for their decisions and courts
can strike down decisions that are arbitrary and capricious.
Hard look doctrine leads to:
Increase in the number of reversals and remands of agency actions.
Options in decisions:
Remand – invalidated, but agency is given a chance to redo the rule/procedure
Reverse – change the rule, but leave it in place
Change part of the rule
Substitute own judgment
Judicialization of policymaking (Kenneth Culp Davis)
More informal procedures
22. Reviewing Questions of Fact and
Questions of Law
Here we discuss judicial review as a matter of
deference to agency determinations.
In this type of judicial review, Courts accord a…
Presumption of correctness – a legal assumption
that action taken by a trial court or administrative
agency is clothed with an inference of being correct.
Deference in this regard is broken down into two
categories by Section 706(2) of the
Administrative Procedure Act:
Review of Questions of Law (A – D)
Review of Questions of Fact (E and F)
23. Deference to Findings of Fact
The Administrative Procedure Act
Section 706(2)(e) of the APA states that reviewing courts shall set aside
agency actions, findings, and conclusions that are not supported by
The APA sets three standards for judicial review of findings of fact.
Agency decisions may be set aside when agency findings and
conclusions are found to be:
Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
Unsupported by substantial evidence (in certain types of cases); or
Unwarranted by the facts to the extent that the facts are subject to trial de novo
by the reviewing court.
“Substantial evidence is relevant evidence which a reasonable mind
might accept in support of the conclusions of the agency”
Two Types of Deference to Findings of Fact
Standards of admissibility
Weighing the evidence