Judicial Review of Administrative Acts

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To conform to basic separation of powers precepts, judicial review of administrative actions must be limited yet effective. It must be limited to avoid entangling courts in policy decisions that belong to other branches; it must be effective to bind administrative agencies to the rule of law. Many administrative law doctrines attempt to accommodate these two purposes. Often they do so by adapting common law remedies against government to the American scheme of separated powers. This process began with marbury v. madison (1803), which announced that a court having jurisdiction could issue common law mandamus against a cabinet officer. The Supreme Court emphasized the need to avoid judicial intrusion in the political discretion of executive officers, while conforming their decisions to the dictates of law.

Modern administrative agencies perform functions that are characteristic of all three constitutional branches: adjudication, rule-making, and execution. The legitimacy of these activities depends on the relationships between the agencies and the branches that the courts have defined. For example, Crowell v. Benson (1932) allowed agencies to exercise adjudicative authority only because judicial review could assure that agency decisions had adequate factual and legal support.

The delegation doctrine states that when Congress grants legislative power to agencies it must provide intelligible standards to guide and confine agency discretion. Yet this dictrine is aspirational today: no congressional delegation to an agency has been invalidated for over fifty years. The delegation doctrine has been supplanted by a series of inquires into the legality of particular agency actions.

First, courts review the substantive conformity of agency actions with constitutional requisites, such as those in the bill of rights. Substantive constitutional criteria apply to statutes.

Second, courts review the fairness of agency procedures under due process and statutory guarantees. procedural due process involves a two-stage inquiry that identifies the presence of an interest that constitutes "liberty" or "property," and then considers the individual and government interests at stake and the value of a more elaborate process. Statutory guarantees often flow from the generally applicable Administrative Procedure Act (1946), which defines the basic procedures of federal agencies for adjudication and rulemaking, and further defines the scope of judicial review of administrative acts. Such statutory procedures often are more elaborate than the minimal constitutional requisites.

Third, courts review the statutory interpretations that underlie administrative acts. Courts usually defer to agency interpretations of law that are consistent with ascertainable legislative intent and that are otherwise reasonable. The purpose of this doctrine is to give maximum scope to agency discretion within statutory bounds.

Fourth, courts review the factual basis for agency actions. Here they compare administrative explanations for decisions with materials in the administrative record and accept conclusions of fact and policy that are reasonable. The courts try to ensure that agencies have carefully considered the policy options before them and have inquired fully into the facts. Thus, ordinary rationality review is much more demanding in administrative law than it is under constitutional equal protection or substantive due process guarantees.

Any of several threshold considerations can prevent courts from reviewing the merits of administrative actions. standing to seek review is partly a constitutional doctrine. To present a "case" or "controversy" within the federal judicial power, parties must show that they are injured in fact by the government and that judicial relief will remedy the injury. In administrative cases, courts also require the parties challenging agency actions to be within the zone of interests affected by the governing statute. There are constitutional overtones in this latter test, because it denies review to persons so tangentially interested in a statute's administration that they are unlikely to present a concrete, sharply adversarial claim.

Parties must ordinarily exhaust their administrative remedies before seeking judicial review. Separation of powers considerations partly explain this doctrine, which enforces delegations of decision-making power to agencies. The courts make exceptions to this exhaustion requirement when the issues are ready for judicial review, delay would cause hardship to private parties, or agency autonomy would be unduly threatened by immediate judicial review.

Finally, not all administrative acts are reviewable. Statutes sometimes entirely preclude judicial review, subject to uncertain due process limitations. As in Johnson v. Robinson (1974), courts usually interpret statutes that preclude review to allow at least inquiries into the constitutionality of agency actions. In this way, the courts avoid deciding whether Congress can forbid all review of an administrative act for which review is otherwise appropriate. Courts do hold that certain agency functions are intrinsically unsuited for review, such as agency decisions not to undertake enforcement action. Here as elsewhere, courts attempt to control agencies only to an extent that is consistent with traditional notions of the limits of the judicial role.

Harold H. Bruff

(see also: Cases and Controversies; Procedural Due Process, Civil.)


Davis, Kenneth Culp 1978–1984 Administrative Law Treatise, 2nd ed., vols. 1–5. San Diego, Calif.: K. C. Davis.

Pierce, Richard J., Jr. , et al. 1985 Administrative Law and Process. Mineola, N.Y.: Foundation Press.

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