Welcome to PP600: Administrative Law
Unit 7 Seminar
All About Judicial Review
Professor Patricia Maitland, J.D., Ph.D.
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Recall the types of Political Oversight
of Agencies
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One type was Constitutional oversight
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Judicial Review
Courts assume jurisdiction even when there is no statutory
authorization (in the agency’s enabling act) for a judicial appeal.
There is an inherent right of appeal from orders of
administrative agencies where constitutional rights are involved.
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Courts provide relief or review even though there is no statute which
specifically provides for such relief or review.
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A History Refresher
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1802 John Marshall was Chief Justice of
the U.S. Supreme Court
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Believed in a strong federal government
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Contrast to Jefferson who thought more power
should be pushed out to the states
“It is emphatically the province and the duty of the judicial
department to say what the law is.”
Chief Justice John Marshall, Marbury v. Madison (1803)
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A History Refresher
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In an 1803 Supreme Court case, Marshall
said the Court could throw out any law
passed by Congress if the Court thought
that law was unconstitutional
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Marbury v. Madison
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A History Refresher
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Thomas Jefferson thought judicial review
made the court too powerful.
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Remember Supreme Court justices are
appointed for life, not elected.
Fun Fact: The longest serving Justice
was William O. Douglas who served for
36 years, 7 months, and 8 days from 1939
to 1975.
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A History Refresher
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Jefferson and Marshall disliked each other
in the extreme
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Even though they were cousins!
Their dispute was in regard to ideas
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So what was Marbury v. Madison all about?
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Marbury v. Madison
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In the Presidential election of 1800:
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Republican Thomas Jefferson defeated the incumbent Federalist John
Adams.
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The Republicans (forerunners of the Democratic Party) also took control of
Congress
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But the “lame duck” Congress passed an amendment to the Judiciary Act,
creating a lot of new judicial positions and filled them at the last minute
with Federalist appointees.
William Marbury received one of the appointments to a minor judicial post
in the new District of Columbia.
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His appointment was signed by President Adams but not delivered to
Marbury.
The new Secretary of State, James Madison, also never delivered the
appointment.
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Marbury v. Madison (cont.)
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Marbury sued Madison in the Supreme Court, asking the
Court to issue a writ of mandamus ordering Madison to
deliver the appointment document.
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The SC had a new federalist Chief Justice, John Marshall, who
was also a new appointee.
 Marshall did not recuse himself from the case.
Marshall feared that a writ would be ignored or defied, revealing
the weakness of the SC and would have a negative impact on
the legitimate authority of the courts.
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Marbury v. Madison (cont.)
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Marshall’s opinion asked and answered the following:
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Has the applicant a right to the commission?
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Has the applicant a legal remedy for this wrong?
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Yes, a writ of mandamus can properly be directed against a public official
who fails to carry out a ministerial duty.
Is the applicant entitled to the particular remedy for which he
applies?
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Yes, it is being illegally withheld.
No, the SC does not have the power to issue such a writ.
Why didn’t the SC have the power to issue the writ since
the Judiciary Act gave the SC that power?
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Because the Judiciary Act was unconstitutional.
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Marbury v. Madison (cont.)
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Why was the Judiciary Act unconstitutional?
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So while Marbury had a valid grievance, he needed to
pursue his remedy in a Federal District Court
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By giving the SC itself the power to issue writs of mandamus
Congress tried (unconstitutionally) to expand the SC’s
original jurisdiction.
Which he never did, and Marbury never received the
appointment
Thus, the case forms the basis of judicial review
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Today, the portraits of Marbury and Madison are
hung side by side in the Supreme Court’s Private
Dining Room
Marbury
Madison
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Judicial Review
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Administrative agencies are subject to the
judicial review of the courts.
What is Judicial Review?
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The courts’ ability to review a law or act of an
agency for constitutionality.
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APA § 702
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Justiciability
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Can the Court exercise its authority?
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Reviewability
Standing
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Representational Standing
Injury
Causation
Redressable
Exhaustion
Case in Controversy
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Reviewability
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Authorization of the court to review the case
“federal question” (28 U.S.C. §1331)
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Complainants allege constitutional violations
Statutory jurisdiction
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The APA does not necessarily grant, but presumes
reviewability unless another statute has specified the
manner in which jurisdiction is established
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Standing
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The Party must have standing to sue
The right to bring a suit or action before a
court of justice
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Plaintiff must show Agency action has or will
cause an injury to the Plaintiff that can be
avoided or redressed by the court
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Representational Standing
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Supreme Court recognizes
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Organization has a member who
could bring the case (individual
standing)
Purpose of the organization is
relevant to the suit
The person actually injured is a party
to the suit
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Seeking declaratory or injunctive relief,
not damages
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Injury
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Injury
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Risk
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a concrete injury, not a general grievance.
Immediate, increased
Procedural Injury
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Categorical exemptions
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Types of Injuries
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Recreational
Aesthetic
Environmental
Procedural
Informational
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Causation
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The allegedly unlawful action caused the
injury
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“fairly traceable”
3rd Party actions
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Example: Developer damming the river.
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Redressable
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Party must show that a favorable decision
by the court will redress or avoid the
injury.
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Generally causation and redressability
are linked.
What about 3rd Parties?
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A beneficiary of health services for lowincome persons files suit against the IRS for
withdrawing a hospital’s tax-exempt status.
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Exhaustion
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The Party must have exhausted all
administrative remedies.
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The party must also have raised the issue
with the Agency
Finality
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No review of preliminary or intermediate
actions or rulings
Consummation
 Rights and obligations determined
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Case in Controversy
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There must be a case in controversy
(Article lll, Section 2 of the Constitution)
A definite, concrete issue concerning legal
relations among parties whose interests
conflict
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Based on alleged facts
Resulting in a decision granting
specific relief
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Exceptions to Judicial Review
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Statutory Preclusion
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If the Agency’s enabling act specifies an
alternative.
Action committed to Agency discretion
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Example: A CIA employee.
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Scope of Judicial Review
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Exceeded the scope of its enabling legislation?
Correctly interpreted the laws?
Violated the U.S. Constitution?
Complied with all applicable procedural
requirements?
Are actions arbitrary or capricious (abuse of
discretion)?
Conclusions not supported by substantial
evidence?
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Exceeded the Scope
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The Agency’s statute did not provide the
authority to the Agency for a particular
action.
Agency
Organic
Statute
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Correct Interpretation
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The court may affirm, reverse or remand an
agency order if it finds that the agency has
erroneously interpreted a provision of law
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Violated the Constitution
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Statutory construction is unconstitutional
Contrary to rights, powers, privileges or
immunities
Courts generally interpret the statutes so
as to avoid constitutional questions
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Complied with Procedures
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Did not comply or apply the appropriate
procedures.
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Example: The Developer was issued a permit
although the granting Agency did not
coordinate with other agencies.
Agency response is usually the procedures
were not required.
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Arbitrary or Capricious
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A finding of a lower court will not be
disturbed unless it has no reasonable basis
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Substantial Evidence
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Questions of fact – Agency action must be supported by
“relevant evidence that a reasonable mind might accept
as adequate to support a conclusion”.
Generally when the Agency action is formal rulemaking
or formal adjudication
Some statutes (1970s) designate hybrid rulemaking is
subject to this type of review
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Abuse of Discretion
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A failure by the Agency to take into proper consideration
the facts and law relating to a particular matter
An arbitrary or unreasonable departure from precedent
and settled judicial custom
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Applicable to informal adjudications
The application of laws to facts in review
The court does not substitute its judgment for the Agency’s
Review is based on the record before the Agency at the time of its
decision.
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The Chevron Two-Step
(not the latest dance craze)
Chevron, Inc.
v.
Natural Resources Defense Council
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The Chevron Two-Step
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Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.,
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1984 case in which the U.S. Supreme Court set
forth the legal test for determining whether to
grant deference to a government agency's
interpretation of a statute which it administers.
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In Chevron
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Congress amended the Clean Air Act in 1977 to address states that
had failed to attain EPA established air quality standards
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Required non-compliant States to establish a permit program regulating new or
modified sources of air pollution.
The Carter administration defined a source of air pollution one way,
but in 1981, when Ronald Reagan was elected, the EPA adopted a
new definition of a source of air pollution
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allowed facilities emitting pollution to get permits for non-compliant equipment .
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In Chevron
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The Natural Resources Defense Council, an environmental
protection group, challenged the EPA regulation in federal court,
which ruled in the NRDC’s favor .
Because Chevron wanted its permits, as an affected party, it
appealed the lower court's decision.
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The Chevron Two-Step
Judicial Review of Agency interpretation of law
 Step 1: Is the statute ambiguous?
 Step 2: Is the Agency interpretation
reasonable or permissible
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That Concludes this Week’s
Seminar
Next Time: Governmental Immunity & Liability
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