Judicial Review in the U.S.

1. Dr. VirakPrum Dean of Law University of Puthisastra Judicial Review in the U.S.

2. Which branch of the federal government shall have the final say in interpreting the Constitution? Marbury v. Madison (1803): It is emphatically the province and duty of the judicial (branch) to say what the law is. Separation of Powers  Judicial Review

3. 3 features for Judicial review • Reviewability • Timing of judicial review • Standing to obtain judicial review

4. Reviewability 1- Preclusion A- Express preclusion If a statute clearly and unequivocally precludes all judicial review of an agency action, then the courts will generally give the statute effect. APA§ 701 (a) “embodies the basic presumption of judicial review” (Abbott Lab v. Gardner, 1967) Johnson v. Robinson (1974) Administrator’s claim under U.S.C. § 211 (a): the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration…shall be final and conclusive and no…court of the U.S shall have power or jurisdiction to review any such decision. Court: The question of law presented…arise under the Constitution, not under the statute.”  under judicial review. Califano v. Sanders (1977) ...precluding judicial review if Congress’s intent to foreclose review “is manifested by clear and convincing evidence.”

5. Reviewability (Cont’) B- Implied preclusion Block v. Community Nutrition Institute (1984) Congressional intent to preclude judicial review is “fairly discernable” in the detail of the legislative scheme. Five sources of clear and convincing evidence: -specific statutory language -specific legislative history -Judicial construction followed by congressional acquiescence -Collective import of the legislative and judicial history of the statute -inferences of intent drawn from the statutory scheme as a whole.

6. Reviewability (Cont’) 2- Committed to Agency Discretion Citizens to Preserve Overton Park, Inc. v. Volpe (1971) The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where “statues are drawn in such broad terms that in a given case there is no law to apply” “Intelligible Principles” to limit agency discretion and guide agency behavior. 6 standards for review (Title 5, U.S. Code, § 706(2)(A)-(F)): • arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law • Contrary to constitutional right, power,… • In excess of statutory jurisdiction… • Without observance of procedure • Unsupported by substantial evidence • Unwarranted by facts to the extent that the facts are subject to trial de novo by the reviewing court.

7. Reviewability (Cont’) Heckler v. Chaney (1985) …no review if “court would have no meaningful standard.” Webster v. Doe (1988) [CIA Director] shall deem such termination necessary or advisable in the interests of the United States… no review. Lincoln v. Vigil (1993) …as long as the agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives…the decision is “committed to agency discretion by law.”

8. Reviewability (Cont’) 3- Agency inaction Until 1975, the Court routinely held that agency decisions not to investigate and agency decisions not to bring an enforcement action ...are committed to the agency’s unreviewable discretion. But that tendency changed in 1975… Dunlop v. Bachowski (1975) [union election] “(1) since the statute relies upon the special knowledge and discretion of the secretary for the determination of both the probable violation and the probable effect, clearly the reviewing court is not authorized to substitute its judgment for the decision of the secretary not to bring suit; (2) therefore, to enable the reviewing court intelligently to review the secretary’s determination, the secretary must provide the court and the complaining witness with copies of a statement of reasons...”

9. Reviewability (Cont’) Heckler v. Chaney (1985) [Death penalty. Alleged unapproved use of an approved drug.] “The...committed to agency discretion remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings. ” The court relied on 3 features: -high level of agency expertise [resource allocation] -the agency not ordinarily exercising its coercive power over an individual’s liberty or property rights [non-coercion] -non-enforcement decisions are akin to prosecutorial decisions not to indict. If non-enforcement is unreviewable, what about rule-making?

10. Reviewability (Cont’) American Horse Protection Ass’n, Inc. v. Lyng (D.C. Cir. 1987) Refusals to institute rulemaking proceedings are distinguishable from other sorts of non-enforcement decisions: less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities such as public explanation  reviewable. Massachusetts v. EPA (2007) The Supreme Court upheld the reasoning of the D.C. Cir.

11. Timing To be reviewable, the action must be “final” and “ripe” and the petitioner must have “exhausted” available administrative remedies. 1- Final Agency Action Franklin v. Massachussetts (1992) [Bureau of Census. Reduced number of seats] Finality = “carry direct consequences” Dalton v. Specter (1994) [Closure of the Philadelphia Naval Shipyard]

12. Timing (Cont’) Bennett v. Spear (1997) [minimum water level to protect sucker fish...] Two-step test: • Consummation of the decision-making process • Rights or obligations have been determined This two-step test remains difficult to apply.

13. Timing (Cont’) 2- Ripeness for Judicial Review Abbott Laboratories v. Gardner (1967) [drug labeling of generic name following a brand name] “Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to courts must be permitted...” Toilet Goods Ass’n, Inc. v. Gardner (same day, 1967) [inspection, suspension of certification] Reinforce the twofold inquiry: appropriateness for judicial resolution (legal question) and the hardship if judicial relief is denied. General, not specific  no review.

14. Timing (Cont’) 3- Duty to exhaust administrative remedies McKart v. United States (1969) [Military service, sole surviving son, no need of expertise exhaustion not necessary] McGee v. United States (1971) [conscientious objector status, need expertise exhaustion necessary] McCarthy v. Madigan (1992) [Prisoner, no need to have exhausted his constitutional claim for money damages] Darby v. Cisneros (1993) [Common law exhaustion doctrine v. statutory exhaustion] Optional or mandatory intra-agency review. If optional, a party can seek judicial review. If mandatory, exhaustion is a pre-requisite but the agency must clearly state so in its regulations.

15. Standing Over 500 opinions in the last forty years… Association of Data Processing Service Organizations, Inc. v. Camp (1970) 1- Constitutional standing Article III “case or controversy” requirement. There elements: -Injury in fact -Causal connection the injury and the conduct that gives rise to complaint (“fairly traceable to the action of the defendant”) -Court decision will likely redress the injury

16. Standing (Cont’) 2- Prudential (or Statutory) standing § 702: A person…aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.

17. Judicial Review in the UK • A- Types of relief: • a mandatory order (mandamus) • a prohibiting order • a quashing order (certiorary) • an injunction

18. Judicial Review in the UK B- Relief Claim Form -Decision to be reviewed -Grounds for review -Relief sought (certiorari, mandamus...) -Statement of facts and its truth cerified

19. Judicial review in the UK • C- Permission • Claim form served on the defendant and any person the claimant considers to be interested party • Permission stage: Hearing both sides to ensure that permission is only granted to arguable cases, which requires that there be a realistic prospect of success. • Permission may be refused because of delay or the availability of an alternative remedy or because the claim is premature.

20. If permission is granted, the respondent has 35 days to respond, with detailed grounds and written evidence. • In making their response, defendants are under a duty of candour. • It is necessary to flood the court with needless paper. A failure of candour may lead to an order for disclosure,,, punishment for contempt.

21. Substitutionary remedy. Where a quashing order had been made the court may in so far as any enactment permits, substitute its own decision for that of the quashed order. Very limited scope, however.

22. Time limit: claim must be made promptly and within three months in principle, unless otherwise made shorter by statute. • Court can, however, extend or shorten the time limit

23. Standing From “Sufficient interest” to “Merits” Two-stage process: 1- On the application for Permission 2- Strong case on merits, judged against the applicant’s own concern with the case. Standing is that an applicant has a good case on merits, even without sufficient interest.