Deference and the Administrative-Legislative Paradox in Judicial Review

Few doubt the tremendous impact the modern national administrative state has had on our federal system. Yet the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Although administrative law's constitutional dimensions are generally recognized to have significant federalism implications, more run-of-the-mill administrative law concerns are rarely approached through a federalism lens. Recent Supreme Court case law suggests that the blinders to the relationship of federalism and administrative law may be lifting. In a number of highly contentious recent decisions, the Court has refused curb Congress's regulatory authority on constitutional grounds, but nonetheless indicated that federalism concerns with protecting the states' independent regulatory role nonetheless retain traction. The means by which the Court appears to be addressing such concerns, however, is administrative law. As a result, administrative law may be becoming the new federalism.This article aims to explore how the Court may be employing administrative law as a surrogate for constitutional federalism and to assess how well administrative law performs this surrogacy role. I conclude that administrative law has important federalism-reinforcing features, but that the Court's decisions to date have failed to fully develop administrative law's federalism potential. I also argue that the best approach - not only for the functioning of federal agencies but, critically, for the continued vibrancy of federalism in the world of the modern federal administrative state - is for the Court (and Congress and the President) to advance federalism within the overall rubric of administrative law, rather than to treat federalism as a more absolute restriction on agency action absent express congressional authorization.The article consists of four parts. Part I contains an analysis of recent Supreme Court precedent, focusing in particular on five decisions addressing the intersection of federalism and administrative law. Part II advances the claim that administrative law may be becoming the new federalism. Here I contend that the Court is unwilling to curb Congress on federalism grounds and that federalism concerns instead are being incorporated into administrative law. I then examine two ways in which federalism concerns are being addressed through an administrative law framework: application of ordinary administrative law to the benefit of the states and development of more extraordinary federalism-inspired administrative law analyses. I also discuss the current administrative preemption debate, which I contend approaches the relationship between federalism and administrative law in overly narrow terms, emphasizing the conflict between federalism and administrative law rather than their potential synergies.Part III switches to a more normative and theoretical perspective. I begin with an analysis of whether using administrative law as a surrogate for federalism concerns is a legitimate judicial undertaking. I conclude that it is, and underscore the benefits of the administrative law approach over other subconstitutional federalism doctrines. I then examine whether, even if legitimate, using administrative law as a surrogate for federalism concerns is likely to prove effective. In addition to rejecting claims that administrative agencies are categorically ill-suited to protecting state regulatory autonomy, I emphasize the need to distinguish between agencies and administrative law. In that vein, I argue that three features of administrative law reinforce its federalism potential: its procedural mechanisms, in particular notice-and-comment rulemaking; its doctrinal and institutional capaciousness; and its very status as subconstitutional law. Part IV assesses the implications of this analysis of administrative law's federalism potential. One implication is that the Court should employ administrative law with an eye to reinforcing agencies' sensitivity and responsiveness to state interests. A second is that federalism concerns raised by federal agency action may be best advanced through ordinary administrative law, albeit with express recognition of how state interests factor into judicial review. Although the Court's recent decisions make some helpful steps in this direction, their lack of clarity and reflection on how federalism concerns should factor into application of administrative law limit their generative potential.

Judicial Review of Economic Policies: Implications on Policy Formulation and Implementation

This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a symposium issue of the University of Toronto Law Journal, entitled "Administrative Law Today: Culture, Ideas, Institutions, Processes, Values – Essays in Honour of John Willis." Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial review as a legitimating mechanism was the result of a misguided focus on "the problem of reconciling," as he called it. This referred to the adjustments needed both in the structures of administrative governance as well as in public law so that, on the one hand, effective state intervention could proceed but, on the other, it could still be understood as "constitutional" and "democratic" in a historically recognizable sense. This article views Willis's discomfort with the "problem of reconciling" as itself problematic. His disparaging attitude toward the place of judicial review in the administrative state was an outgrowth of a limited and one-sided conception of historical change that focused on structural evolution while in effect dismissing its cultural dimension except as a force of obstruction and resistance. Part I of this article summarizes the debates over legislative delegation and administrative justice in interwar England in order to give a sense of the legal-political environment in which Willis came of age as a scholar. Part II turns to the two decades after 1945 to examine efforts by legal and political actors in England to arrive at a more or less stable settlement over the role of judicial review in the administrative state. Willis did not participate directly in these postwar debates because of his move to Canada in the mid-1930s; nevertheless, he continued to view English developments as a kind of analytical baseline for examining the interaction of administrative governance and parliamentary democracy more generally, whether in Canada or elsewhere in the Commonwealth. This paper concludes by reflecting on the writings of Willis at the end of his career in light of efforts in postwar England to achieve a constitutional settlement over the place of judicial review in administrative law.

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions - most notably administrative agencies and the judiciary - well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and James Landis, and on the contemporaneous challenge to their work raised by the legal realist Thurman Arnold. Arnold characterized early modern administrative law as a quasi-formalist effort to impose a logical system of procedure and judicial review on what he saw as pragmatic, functional regulatory agencies that were attempting to address the crisis of the Depression. Although he conceded the persuasive power of this logical system, Arnold predicted that its requirements, especially for adversarial litigation and judicial review, would ultimately impede the optimal operations of a modern administrative state. Although Arnold's eclectic alternative proposals had no influence, his predictions and critique remain incisive and relevant to an academic field and body of doctrine that regularly face regular bouts of intellectual and political crisis. The Article carries the historical disagreement between Arnold and his contemporaries into the present by connecting their debates first to the development of legal process theory as an approach to federal courts and constitutional law in the 1950s and then to similar debates in administrative law today. Arnold's challenge to early modern administrative law, the Article argues, remains relevant because American law still demands a systemic, legalistic conception of the administrative state. A logical system of administrative and legal process has enormous symbolic power even though, as its current detractors note, it often produces suboptimal regulatory practices. The recurring conflict between an enormously durable system and its critique, a conflict that continues to drive administrative law scholarship, began in the 1920s and 1930s; any efforts to reform the field should understand the terms and implications of the conflict's foundations.

Political rents under alternative forms of judicial review

When courts engage in judicial review they do not merely invalidate or “strike down” unconstitutional statutes. Instead, they rewrite such statutes in order to make them constitutionally valid. They can do this in a variety of ways — by deleting words from a statute, adding words to a statute, or declaring that a statute will be read contrary to its apparent meaning. Such judicial amendments do not change the actual words that appear in the legislative code — only a legislature can do that. Rather, they create a situation where the full “text” of a statute includes both the provisions the legislature enacted and the judicial opinions changing those provisions’ meaning on constitutional grounds. For example, if a statute provides that “marriage shall be between one man and one woman,” and a court orders that this statute must be expanded to include same-sex marriage, then that order effectively rewrites the statute just as a legislative amendment would. Thus, the Supreme Court in Obergefell v. Hodges did not “strike down” state marriage statutes that excluded same-sex marriages — doing so would have abolished marriage for everyone. Rather, it effectively inserted text into those statutes by declaring that they must include same-sex marriages.Rejecting the invalidation assumption and embracing this judicial amendment model has profound consequences for the practice of judicial review. It means that judges are not restricted to invalidating existing statutory text, but can effectively rewrite an unconstitutional statute in any way that will render it constitutionally valid. The judicial amendment model also forces us to fundamentally rethink severability doctrine, as well as the use of facial challenges and the constitutional avoidance canon. And it strengthens the case for judicial federalism: if judicial review is a lawmaking act — rewriting a statute in light of a constitutional holding — then state courts should be the ones that decide how to fix unconstitutional state statutes.

ing, functioning reality, most no tably in his opinion in Marburyv. Madison (1803). Even if we recog nize that the concept of judicial review had indeed gained accep tance well before that celebrated case, we might still be puzzled to decide what its essential purpose was meant to be. Did the framers and ratifiers of the Constitution expect that the Court's power to test the constitutionality of offi cial acts would be used primarily as a check against an overreach ing Congress or an overzealous executive? Or was judicial review designed to answer other ends? In fact, judicial review has always been much more con cerned with policing the bound aries of federalism than with maintaining the balance of power within the national government itself. Most ofthe legislative acts that the Court overturns are the work of state and local legislatures, not Congress. And here lies a great irony. For judicial review entered American constitutional theory largely as a weak and doubtful solution to the problem of preserving the supremacy of the new national government over the expected rivalry and opposition ofthe states. Over time, however, it has evolved into a powerful engine not only for keeping the national and state governments within their allotted orbits, but also for imposing crucial national norms of civil rights and liberties upon recalcitrant states. When the framers of the Constitution assembled at Phila delphia in May 1787, they were aware of a handful of cases in which state courts had already voided particular legislative acts on constitutional grounds. But the way in which the framers thought about the constitutional duties ofthe federal judiciary owed far more to two proposals to which James Madison was deeply com mitted. The first was to create a joint executive-judicial council of revi sion, armed with a limited veto over acts of Congress. The second was to give Congress a negative (or veto) on acts ofthe state legislatures. In supporting the council of revision, Madison and his ally James Wilson argued that it was better to allow judges to contribute their legal expertise to the drafting of legislation than to wait to correct the Convention at Philadelphia, 1787/' Illustration on the title page of History ofthe United States, published in 1823. (Courtesy ofthe Library of Congress, USZ62-92869.)

The Prospect of Pragmatic Confucian Democracy: Reply to Dryzek, Macedo, Ackerly, and Li

Through the Commercial Court, the Financial Services Authority (OJK) managed to bankrupt PT Asuransi Bumi Asih Jaya and OJK won the case until the Judicial Review (PK) stage. At the time of the bankruptcy process, PT Asuransi Bumi Asih Jaya, again sued OJK for unlawful conduct and was registered at the Central Jakarta Commercial Court with number 643 / Pdt.G / 2017 / PN.Jkt.Pst. This is because PT Asuransi Bumi Asih Jaya as the plaintiff did not accept the arbitrary actions carried out by OJK. PT Asuransi Bumi Asih Jaya sued for compensation of Rp.4.4 trillion, with details of material losses worth Rp1.4 trillion. Losses are calculated since the OJK revoked its business license in October 2013. To be able to carry out its duties and functions, the state administration carries out various acts or activities of state administration which are often referred to as state administrative actions or acts of state administration. State administration actions became important later when dealing with cases such as in the case of PT Asuransi Bumi Asih Jaya's lawsuit, in which the company sued OJK as a state institution which as a state administration official had committed a violation in the conduct of state administration. The main problem in this study is how the actions of the Asuransi Bumi Asih Jaya company sued the Financial Services Authority as a public body with a lawsuit against the law and how to analyze the position of the Financial Services Authority in legally responsible state administrative actions that have been carried out against PT Asuransi Bumi Asih Jaya. The study was conducted using normative research methods, with qualitative descriptive analysis. The results of the study illustrate that if there is a violation in the conduct of state administration, the state legal entity that is a public institution can be sued through the District Court in the case of a civil case if it has committed a violation of state administrative law.Keywords: acts of state administrative law, public legal entities, acts against the law

ABSTRACTFrom the starting point that public officials and specialist administrative agencies affect most areas of economic and social life in the modern ‘administrative state’, the authors highlight rule of law concerns that have been raised with recent English reforms to restrict the availability of access to a reviewing court through changes to the judicial review procedure. The authors consider this argument in light of comparative studies of the existing law and recent reforms in Australia, Canada, and England and Wales. This comparison provides evidence of much tighter restrictions on time limits for bringing an application for judicial review as opposed to litigation in other subject matters. The authors also situate the focus on judicial review procedure within the broader trend of proceduralism in civil litigation. The authors conclude that while there is a legitimate need for established procedures to control the judicial process and ensure efficiency, cost-effectiveness, and broader public interests, overbearing procedural reforms risk accessible and effective judicial review of public agencies and officials, which can impair the principle of legality in that all public decision-making must be held to established legal standards.

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed. The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions. One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once. Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. (Judicial is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to challenge the Countermajoritarian Difficulty, by arguing that legislature-centered arguments do not (simply) extend to cover most of the practice of judicial review. Judicial review includes not merely the review of statutes, but also the review of administrative rules, orders and actions, and the statutory pedigree of these rules, orders and actions does not suffice to translate legislature-centered arguments into the administrative state. In particular, there is no reason to think that the most important kind of restraintist argument, for constitutional reviewing courts in an administrative state, should be a democratic argument such as the Countermajoritarian Difficulty. Rather, epistemic arguments -- arguments that point to judicial deficits in determining what morality requires -- are at least as promising.

Judicial review is not the only form of accountability for the administration. Successful accountability requires a “braiding” of different mechanisms, a careful combination that ensures that they work together. Administration involves different activities, e.g. policy-making, running services or purchasing them from the private sector, regulating the private sector, and arranging for participation in decision-making. Each requires different forms of accountability. For the public sector, the most important model is not the principal-agent model, but the trust model: the official is granted power to work for the benefit of a third party beneficiary. The official must therefore be accountable not only to the person conferring the power, but also to the beneficiary. Judicial review’s distinctive contribution is to focus on legality and respect for process, as well as transparency in justification. The paper illustrates the process of braiding by two examples. The first examines the way standards of good administration developed by the ombudsman and judicial review can be mutually influential and can help to work together to improve administrative practice. The second looks at how standards of public sector ethics and policies of avoiding corruption can be brought together from both judicial review and other monitoring bodies. The paper suggests braiding works where the different standard monitoring bodies are institutionally close, where there are possibilities for informal interaction and where the values put forward by the different institutions fit the culture of the institutions subjected to them.

This book deals with one of the greatest challenges for the judiciary in the 21st century. It reflects on the judiciary’s role in reviewing administrative discretion in the administrative state; a role that can no longer solely be understood from the traditional doctrine of the Trias Politica. Traditionally, courts review acts of administrative bodies implying a degree of discretion with quite some restraint. Typically it is reviewed whether the decision is non-arbitrary or whether there is no manifest error of assessment. The question arises though as to whether the concern regarding ensuring the non-arbitrary character of the exercise of administrative power, which is frequently performed at a distance from political bodies, goes far enough to guarantee that the administration exercises its powers in a legitimate way. This publication searches for new modes of judicial review of administrative discretion exercised in the administrative state. It links state-of-the-art academic research on the role of courts in the administrative state with the daily practice of the higher and lower administrative courts struggling with their position in the evolving administrative state. The book concludes that with the changing role and forms of the administrative state, administrative courts across the world and across sectors are in the process of reconsidering their roles and the appropriate models of judicial review. Learning from the experiences in different sectors and jurisdictions, it provides theoretical and empirical foundations for reflecting on the advantages and disadvantages of different models of review, the constitutional consequences and the main questions that deserve further research and debate.