Judicial Control of the BureaucracyBureaucratic Politics

Introduction

• Administrative Law – body of law that pertains to the legal authority of public administrative entities to perform their duties as well as to provide necessary limits and controls.• Now we are concerned with the limits and controls via judicial review of agency actions.

• The courts apply two standards to examine agency actions:• Is the action consistent with legislative intent?• Does the agency follow proper legislatively established procedure and due process

when taking an administrative action?• Court expertise and agency review• Courts are generalists of law and do not possess the level of expertise that may be

necessary to review court actions.• Deference

• Specialized courts tend to be less deferential to agency actions.

• We focus on how the judiciary treats the bureaucracy in two cases:• Citizens to Preserve Overton Park v. Volpe• Chevron v. Natural Resources Defense Council (Supreme Court)

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

• Facts:• The Department of Transportation was planning to construct a portion of I-40 through Overton Park

in Memphis, TN, which would have separated the park into two halves.• The secretary was only authorized under the Department of Transportation Act and the Federal-Aid

Highway Act to take such action when there were no other routes available.• Additionally, the secretary could only take such actions when a plan to minimize harm to the park

had been considered.• After approving the plan to build I-40 through Overton Park, a group of citizens sued the secretary.• Both lower courts found in favor of the DOT.

• Legal Questions:• Are the actions of the secretary reviewable by the court under the terms of the Administrative

Procedure Act and the Department of Transportation Act?• Is the secretary required to provide a record of evidence for his decision that there were no “feasible

and prudent” alternative routes?• Holding and Action:

• Yes. Yes. Reversed and Remanded.• Vote:

• 8 (Burger, Black, Harlan, Brennan, Stewart, White, Marshall, Blackmun) – 0

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

• Legal Reasoning:• What is the first question that the court must address?

• Whether it has the authority to review the actions of the Secretary of Transportation.• Where does the court look to determine whether it possesses such authority?

• To the language of the Administrative Procedure Act in Section 701.• What does it say?

• “Each authority of the Government of the United States…is subject to judicial review except where there is a statutory prohibition on review or where agency action is committed to discretion by law.”

• Does the Department of Transportation Act have a clear expression of Congressional intent to prohibit judicial review?• No.

• Is this a matter of discretion of the Secretary of Transportation?• No.

• How do we know?• The Department of Transportation Act and the Federal-Aid Highway Act specifically limits the

discretion of the secretary in cases of this type (i.e., cases involving building through public parks).• Notice the use of congressional intent.

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

• Legal Reasoning (cont’d):• Now that we know the court can review the case, what must it determine next?

• The correct standard of review.• Where does the court look to determine the correct standard of review?

• Section 706 of the Administrative Procedure Act.• Why doesn’t the substantial evidence standard apply?

• The action of the secretary is not required via APA rulemaking or adjudication requirements.• What does Section 706 tell the court it should consider?

• Whether the Secretary acted within his scope of authority.• Whether the Secretary’s decision was arbitrary and capricious.• Whether there was a procedural error on the part of the Secretary.

• Why can’t the court decide these issues?• There is no record.

• What does the court do?• Remand the case back to the district court after the Secretary produces a record of evidence.

Discussion

• The “hard look doctrine”.• Motor Vehicle Manufacturer’s Association v. State Farm Insurance (463 U.S. 29, 1983)• The courts take a hard look at the agency’s actions and ensure that there is a reasoned basis

for their decisions.• It ensures that agencies take a hard look at the basis for their decisions and courts can

strike down decisions that are arbitrary and capricious.• Hard look doctrine leads to:

• Increase in the number of reversals and remands of agency actions.• Options in decisions:

• Uphold• Remand – invalidated, but agency is given a chance to redo the rule/procedure• Reverse – change the rule, but leave it in place

• Change part of the rule• New standard• Substitute own judgment

• Judicialization of policymaking (Kenneth Culp Davis)• More adjudication• More informal procedures• Negotiated rulemaking

Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)

• Facts:• The Clean Air Act Amendments of 1977 requires states that have not met EPA clean air standards to

establish a permit program to regulate “new or modified major stationary sources of air pollution.”• Under the program, the EPA allowed states to adopt a plantwide definition of the term “stationary

source” which came to be known as the “bubble concept.”• Under the bubble concept, the entire plant, rather than each pollution- emitting device, was treated

as a stationary source.• This would allow more leeway for plants with multiple pollution-emitting devices as only the total

production of the pollution was considered in issuing permits.• Legal Question:

• Is the EPA’s interpretation of the term stationary source a reasonable construction under the terms of the Clean Air Act Amendments?

• Holding and Action:• Yes. Reversed.

• Vote:• 6 (Brennan, White, Burger, Blackmun, Powell, Stevens) – 0• Marshall, Rehnquist, and O’Connor did not participate.

Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)

• Legal Reasoning:• In order to determine whether the interpretation of the term stationary source is a reasonable

construction, what must the court consider?• Whether Congress has directly spoken to the issue (in this case a clear definition of the term stationary

source).• If there is a gap in statutory language, is the agency’s interpretation a reasonable one.

• What does the Court examine to determine if legislative intent is clear?• The text of the Clean Air Act Amendments of 1977• The congressional record

• What does an examination of these sources reveal?• There is no clear intent established by Congress.

• What must the court determine next?• Whether the interpretation of the meaning of stationary source is a reasonable one.

• What does the court conclude?• The agency’s interpretation is reasonable based on the evidence provided.• It shows that the agency is trying to balance interests much the same that Congress did when it passed the law.

• The EPA’s construction of the meaning of stationary source is reasonable and is upheld.

Results of Chevron

• Case establishes the “reasonable interpretation” standard for reversing and remanding.• If it is a reasonable decision, you must uphold the

agency decision.• Judge must decide that the agency decision was not

reasonable in order to overturn the agency action.• Much more relaxed than the hard look doctrine

• Reduces the number of reversals and remands• More deference to agency decisions.

Final Points

• The results of the hard look doctrine are still felt today:• Adjudicatory policy-making – conservative policy making• Less reason for challenges

• Rulemaking policy-making – more liberal policies• Moving from one to another not only affects the agency but affects

those who fall under agency regulation (due process).• Public administration has become judicialized.• Explains why agencies are very difficult to defeat in court.• When they are defeated however, studies show they are quite

compliant in following court decisions.