Volume 49, Number 3
Summer 1997 - Abstracts

The Critique of Active Judicial Review of Administrative Agencies: A Reevaluation
- Thomas O. Sargentich

Professor Richard J. Pierce suggests that as efforts are made to balance the federal budget, agency appropriations will be cut. Consequently, he suggests that courts should lessen the burden placed on agencies through relaxed judicial review. In this piece, Professor Thomas O. Sargentich critiques Pierce�s arguments for cutting back judicial review in the wake of shrinking agency resources.

Sargentich asserts retreating from judicial review would permit agencies to perform negligent, and unreasonable decisionmaking, which would result in shifting costs from the agency to the beneficiaries of regulatory programs and parties who are objects of administrative action.

Sargentich further asserts Pierce's postulation requires acceptance of three flawed premises which are broken down and criticized in the comment. First, Pierce assumes that agency appropriations, which do not constitute the bulk of government expenditures, will indeed be cut to balance the budget. Second, Pierce assumes relaxation of judicial review, which essentially endorses judicial activism in policymaking arena, is the proper role for the judiciary. Finally, Sargentich attacks Pierce's basic premise that Administrative Law Doctrine is excessively burdensome. By highlighting recent Supreme Court decisions in the areas of procedural review, review of questions of law, and availability of Judicial Review, Sargentich argues there is already a current trend of cutting back judicial review.

In the area of Procedural Review, Sargentich cites United States v. Florida East Coast Ry., 410 U.S. 224 (1973) and Vermont Yankee Nuclear Power Corp. v. Natural Defense Council, 435 U.S. 519 (1978) for the proposition that lower federal courts required to refrain from imposing procedural requirements on agency rulemaking unless such requirements are specifically mandated by statute. In the area of reviewing questions of law, Sargentich cites Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1978), which required federal courts to defer to a reasonable or permissible interpretation of the agency unless the statute is clear with regards to the issue at hand. Although controversial and not consistently followed, it is used to demonstrate the proposition that the courts are more deferential to agency rulemaking than in the past. Finally, with regards to the availability of Judicial Review, which includes reviewability and standing, Sargentich discusses Heckler v. Chaney, 470 U.S. 821 (1985), to demonstrate a switch from historical presumption of the reviewability of agency decisions to a presumption against judicial review for agency inaction. Similarly, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), is examined to demonstrate the wariness on the part of the Supreme Court to allow standing in public law litigation.

The second part of the comment criticizes Pierce's notions about the role of Congress, agencies, and courts, which underlie his argument for relaxed judicial review. Sargentich argues Pierce defines congress' duties and capabilities too narrowly and should be calling for elected leaders to use their capabilities to deal with budgetary issues rather than calling for a relaxation of judicial review. With regard to agencies, the comment suggests Pierce�s opinion that agencies are "hamstrung" by courts and should be watchdogged by the executive branch is problematic. He explains agencies would lack significant oversight because of several institutional factors that restrict the president from fully replacing the resources and independence enjoyed by the court in checking agencies.

Finally, the comment does an in depth criticism of Pierce's view of courts and his proposals regarding statutory construction, reasonableness review, and procedural due process respectively.

Pierce argues most issues of statutory construction are issues of policy--not law-- and should not be decided by courts. For example, he asserts interpretation of ambiguous statutory language amounts to courts resolving policy issues which he deems "creative" as opposed to "real" statutory construction. He argues courts should stop "creative statutory construction." Sargentich, on the other hand, asserts, this view of law is too narrow and would limit the role of courts almost entirely. Furthermore, he argues Pierce's argument is inherently in conflict with his past arguments and is inherently unclear.

Pierce also attacks the modern day reasonableness review standard of judicial review and supports use of a minimum rationality requirement. Sargentich argues minimum rationality is similar to having no standard of review and explains that although reasonableness review can be burdensome on agencies, it has value.

Finally, Sargentich attacks Pierce's argument that procedural due process should be cut back and that courts are not equipped to select the decisionmaking procedures for governmental benefits. Nonetheless, Sargentich points out that the Supreme Court has already reduced the burdens imposed by procedural due process and explains how individual rights especially justify judicial review.

In closing, Sargentich supports interaction among all branches of government. More specifically, he supports a more active judiciary, that serves as a check on agency behavior and a limit on too much control in the executive branch.

Abstract by Jennifer McKernan

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