The importance of resource allocation in administrative law

Administrative Law Review

Volumn 60, Issue 1, 2008, Pages 1-63

  Biber, Eric ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 70450155565     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (440)

1. Massachusetts v. EPA, 127 S. Ct. 1438,1455, 1459-63 (2007).
2. See Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, SUP. Cr. REV. (forthcoming 2008) (manuscript at 2) (discussing what the authors call "expertise-forcing," which is the courts' attempt to ensure that agency expertise is not suborned to outside political pressures).
3. See 127 S. Ct. at 1458-59 & n.24 ("Refusals to promulgate rules are thus susceptible to judicial review .... ").
4. The prior two cases were Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004),
5. and Heckler v. Chaney, 470 U.S. 821 (1985).
6. See Heckler, 470 U.S. at 834-35 (limiting judicial review of agency decisions against enforcement to situations where Congress "has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion, there is 'law to apply' under §701(aX2)," in that "courts may require that the agency follow that law").
7. See Massachusetts v. EPA, 127 S. Ct. at 1459 (insisting that review of agency refusals to issue a rule is "extremely limited" and "highly deferential"
8. (quoting Nat'l Customs Brokers & Forwarders Ass'n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989))).
9. Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55 (2004).
10. Eric Biber, Two Sides of the Same Coin: Judicial Review Under APA Sections 706(1) and 706(2), 26 VA. ENVTL. L.J. (forthcoming Spring 2008).
11. See S. REP. NO. 79-752, at 1 (1945) (noting that "[t]here are no clearly recognized legal guides for either the public or the administrators").
12. -5 U.S.C. §701(a) (2000).
13. Id. §704.
14. Id. §551(13).
15. Id. §706.
16. -542 U.S. 55 (2004).
17. Id. at 57-61.
18. S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217,1222-23 (10th Cir. 2002).
19. SUWA, 542 U.S. at 66-67.
20. Id. at 66.
21. Id. at 64.
22. See, e.g., S.F. Baykeeper v. Whitman, 297 F.3d 877, 885-86 (9th Cir. 2002) (finding that the EPA did not have a statutory duty to issue certain water pollution standards, and so the plaintiffs claim of unreasonable delay could not survive);
23. In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (concluding that the Oil Pollution Act of 1990 did not compel the Coast Guard to promulgate certain regulations);
24. Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984) (holding that §706(1) relief was appropriate where a "ministerial, clearly defined and peremptory" duty exists
25. (quoting Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564, 566 (10th Cir. 1981))).
26. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413 n.30 (1971) (quoting 5 U.S.C. §706(2)(A) (2000)).
27. See, e.g., Lincoln v. Vigil, 508 U.S. 182 (1993) (concluding that the Indian Health Service decision to discontinue a children's treatment program was part of the agency's authority to allocate funds from a lump sum appropriation, and was thus committed to agency discretion and not subject to judicial review);
28. Webster v. Doe, 486 U.S. 592 (1988) (finding no meaningful standard by which to review the CLA Director's termination decisions and determining that this decision was unreviewable);
29. ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270 (1987) (holding that the Interstate Commerce Commission (ICC) had unreviewable discretion in determining whether to reopen certain decisions for material error);
30. Heckler v. Chaney, 470 U.S. 821 (1985) (holding immune from judicial review the Food and Drug Administration's (FDA) non-enforcement of safety regulations with regard to lethal injection of drugs);
31. S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444 (1979) (maintaining that the ICC had unreviewable discretion not to investigate the legitimacy of shipping rate increases). Another major category of unreviewability includes agency action under a statute "drawn in such broad terms that in a given case there is no law to apply." Overton Park, 401 U.S. at 410 (citation omitted). Because this branch of §701(a) depends (at least explicitly) more on the particularities of individual statutes than on general principles of administrative law, I set it aside for purposes of this paper.
32. See Milk Train, Inc. v. Veneman, 310 F.3d 747, 749-52 (D.C. Cir. 2002) (concluding that the court could not review an agency decision as to milk subsidies under a statute that allowed agencies to allocate funds "in a manner determined by the Secretary" because the statute provided "no relevant 'statutory reference point' for the court other than the decisionmaker's own views of what is an 'appropriate' manner of distribution"
33. (quoting Drake v. FAA, 291 F.3d 59,72 (D.C. Cir. 2002))).
34. Heckler v. Chaney, 470 U.S. 821, 837-38(1985).
35. Id. at 824.
36. Id. at 831 -32 (internal citations omitted).
37. See, e.g., PGBA, LLC v. United States, 389 F.3d 1219, 1227 n.5 (Fed. Cir. 2004) (stating that §706(1) speaks only to improper failure to act, and not to arbitrary or capricious conduct pursuant to §706(2));
38. Georgia v. Army Corps of Eng'rs, 302 F.3d 1242, 1249 n.4 (11th Cir. 2002) (stating that "the review conducted under the two sections [§§ 706(1) and (2)] is different");
39. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (noting that courts have construed review under §706(1) to generally inquire whether the agency has violated its statutory mandate in failing to act, or whether any delay in action was unreasonable).
40. See, e.g., United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 418 (1931) (challenge to the Interior Secretary's denial of oil and gas prospecting permits);
41. Goldsmith v. U.S. Bd. of Tax Appeals, 270 U.S. 117, 119-20 (1926) (mandamus challenge to the denial of admission of certain attorneys to practice before the Board of Tax Appeals);
42. United States ex rel. Chi., N.Y. & Boston Refrigerator Co. v. ICC, 265 U.S. 292, 293 (1924) (mandamus challenge to a denial of a company's application to qualify as a category of carrier entitling them to special rates);
43. United States ex rel. West v. Hitchcock, 205 U.S. 80, 83 (1907);
44. Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) (mandamus challenge to the Navy's denial of pension funds to a deceased soldier's widow).
45. -661 F.2d 230,231 -33 (D.C. Cir. 1981 ).
46. Id. at 233.
47. -42 F.3d 1522,1533-34 (9th Cir. 1994).
48. Id.
49. Id. at 1538.
50. Id. at 1533-34, 1536.
51. Of course, in some situations judicial review of agency decisionmaking can be pigeonholed without too much difficulty. For instance, it is relatively clear that in Massachusetts v. EPA, the agency's refusal to regulate could be categorized as an agency action.
52. See 127 S. Ct. 1438, 1459 (2007) (distinguishing a refusal to regulate from the denial of a petition for rulemaking).
53. Even so, there might be substantial confusion. When a court reviews an agency's refusal to issue a regulation, as in Massachusetts v. EPA, we may nonetheless want to have substantial deference on resource allocation grounds, even though doctrinally the case involves judicial review of agency action.
54. See infra Part II.
55. Heckler v. Chaney, 470 U.S. 821, 824-25 (1985).
56. See also Jim Rossi, Waivers, Flexibility, and Reviewability, 72 CHI.-KENT L. REV. 1359, 1369-70 (1997) (noting the difficulties in distinguishing between agency action and agency inaction).
57. Compare Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 674-77 (D.C. Cir. 1994) (concluding that an agency decision to waive a maritime transport licensing requirement was unreviewable),
58. with Transp. Intelligence, Inc. v. FCC, 336 F.3d 1058, 1062-64 (D.C. Cir. 2003) (holding that agency refusal to revoke a license is reviewable).
59. Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 63 (2004).
60. See Biber, supra note 8, at 7-9.
61. Massachusetts v. EPA clarified that Heckler did not apply to agency decisions not to promulgate regulations. Massachusetts v. EPA, 127 S. Ct. at 1459.
62. See Biber, supra note 8, at 20-21 (citing decisions that have relied on Heckler's assertion that courts should avoid forcing agencies to regulate private parties).
63. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (stating that it is more difficult for regulatory beneficiaries to assert standing to challenge agency decisionmaking when the agency has not directly regulated them).
64. See id. (authored by Justice Scalia); Bret C. Birdsong, Justice Scalia 's Footprints on the Public Lands, 83 DENV. U. L. REV. 259, 261-62 (2005);
65. Richard J. Pierce, Jr., Legislative Reform of Judicial Review of Agency Actions, 44 DUKE L.J. 1110, 1124 n.86 (1995) (noting the importance of Scalia's standing jurisprudence).
66. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881 (1983) [hereinafter Scalia, Doctrine of Standing] (suggesting that courts emphasize the requirement of standing).
67. Id. at 894-96. Scalia has mentioned his preference for deregulation in a number of other articles.
68. See, e.g., Antonin Scalia, A Note on the Benzene Case, REG., July/Aug. 1980, at 25, 26-27 (arguing for a revival of the unconstitutional delegation doctrine);
69. Antonin Scalia, Regulatory Reform-The Game Has Changed, REG., Jan./Feb. 1981, at 13, 14 (describing the "[ejxecutive-enfeebling" approach to regulatory reform as misguided);
70. Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, SUP. CT. REV. 1978, at 345,388-89.
71. Scalia, Doctrine of Standing, supra note 43, at 896.
72. Id. at 896-97.
73. Id. at 897.
74. Id. Coincidentally, Justice Scalia dissented from the D.C. Circuit decision that Heckler v. Chaney overturned.
75. Chaney v. Heckler, 718 F.2d 1174, 1192-1200 (D.C. Cir. 1983) (Scalia, J., dissenting). However, Justice Scalia's dissent largely centered on his belief that the majority in the Circuit Court ignored binding D.C. Circuit and Supreme Court precedent, and he did not develop any of the themes raised in this paper.
76. Id. Justice Scalia's only theoretical argument was that the Constitution reserves to the Executive the responsibility to execute the laws.
77. Id. at 1192. Others have drawn the connection between Justice Scalia's standing arguments (in the academic literature and in his opinions) and the Supreme Court's skepticism for judicial review of agency inaction.
78. See Noah Perch-Ahem, Broad Programmatic Attacks: SUWA, The Lower Courts' Responses, and the Law of Agency Inaction, 18 TUL. ENVTL. LJ. 411, 431 (2005) (finding in Scalia's tendency to link "failure to act claims with the concept of standing" an implicit tenet that "agency inaction will not result in a concrete individualized injury");
79. Thomas O. Sargentich, The Critique of Active Judicial Review of Administrative Agencies: A Réévaluation, 49 ADMIN. L. REV. 599, 616 n.95 (1997) ("The object-beneficiary distinction drawn by Justice Scalia... is similar to the action-inaction distinction drawn in Heckler, both rely on the image of negative liberty.");
80. see also Jonathan H. Adler, Stand or Deliver: Citizen Suits, Standing, and Environmental Protection, 12 DUKE ENVTL. L. & POL'Y F. 39, 54 (2001) (noting that the narrow standing requirements articulated in Scalia's jurisprudence that favor regulatory subjects bar "pure" citizens' suits to force agency action);
81. Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 476 (1987) (connecting Supreme Court decisions on standing and inaction).
82. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657 (2004) [hereinafter Bressman, Judicial Review of Agency Inaction].
83. Id. at 1692-93;
84. see also infra note 54.
85. Id. at 1692.
86. Id. at 1692-93.
87. Id. at 1693.
88. Two scholars have discussed the issue of resource allocation in the context of judicial review of agency inaction. Professor Dan Selmi explored the issue, but in the context of judicial review of EPA decisionmaking and specific statutory provisions that allocate judicial review of action or inaction between the district court and court of appeals. See Daniel P. Selmi, Jurisdiction to Review Agency Inaction Under Federal Environmental Law, 72 IND. L.J. 65 (1996). Professor Cass Sunstein examined the Heckler v. Chaney Court's reliance on the resource allocation rationale in its decision, and concluded that while it was a significant factor, it did not justify a sweeping exemption of agency decisionmaking from judicial review.
89. See Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. CHI. L. REV. 653 (1985) [hereinafter Sunstein, Reviewing Agency Inaction]. Sunstein concluded that there should be judicial review of agency inaction where statutory standards provide a guideline for the court.
90. Id.
91. See Heckler v. Chaney, 470 U.S. 821, 831-32 (1985).
92. See OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2008 (2007), Summary Table 1, available at http://www.whitehouse.gov/omb/budget/fy2008/pdf/budget/tables.pdf (showing the budget for fiscal year 2008 as $2,662 trillion).
93. See Office of Pers. Mgmt., Federal Civilian Personnel Summary, http://www.opm. gov/feddata/html/2006/march/tablel.asp (last visited Jan. 5, 2008) (specifying the total civilian employment of the federal government as 2,688,096, as reported in March 2006).
94. See President Bush's Cabinet, http://www.whitehouse.gov/government/ cabinet.html (last visited Nov. 19, 2007) (displaying photographs and titles of each of the department heads).
95. See Office of Pers. Mgmt., Table 2-Comparison of Total Civilian Employment of the Federal Government by Branch, Agency, and Area as of October 2005 and November 2005, http://www.opm.gov/feddata/html/2005/november/table2.asp (last visited Jan. 5, 2008).
96. Heckler, 470 U.S. at 831-32.
97. See Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1454-59 (1992) (discussing agency prioritizing in the context of increasing the possibility for outsiders to instigate rulemaking);
98. see also Harold J. Krent, Reviewing Agency Action for Inconsistency with Prior Rules and Regulations, 72 CHI.-KENT L. REV. 1187, 1196-97 (1997) (discussing various ways agencies direct the actions of their officials);
99. Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61, 82-87 (1997) (noting that setting priorities through litigation leaves decisions about resource allocation to the whim of those litigants who obtain final judgments first);
100. Selmi, supra note 54, at 132-33 (1996) (discussing the assertion by critics that agencies need more discretion to establish their own regulatory priorities and to assign resources accordingly).
101. Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 71 (2004) ("But allowing general enforcement of plan terms would lead to pervasive interference with BLM's own ordering of priorities.");
102. see also S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 457 (1979) (noting that judicial review of agency decisions not to suspend rates would cause a "tremendous" increase in the agency's workload). Justice Scalia has also embraced this rationale as a reason for courts to be reluctant to force agencies to act.
103. See Antonin Scalia, Responsibilities of Regulatory Agencies Under Environmental Laws, 24 Hous. L. REV. 97, 105 (1987);
104. Antonin Scalia, The Role of the Judiciary in Deregulation, 55 ANTITRUST L.J. 191,195 (1986).
105. For examples of courts refusing to force agency action because of resource allocation, see Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100-02 (D.C. Cir. 2003) (reversing and remanding a district court judgment that held a decision by the Secretary of the Interior to have been unreasonably delayed, because the district court did not first consider the limited resources and competing priorities of the Bureau of Indian Affairs);
106. In re Cal. Power Exch. Corp., 245 F.3d 1110, 1125 (9th Cir. 2001) (deferring to the agency's decision to "focus [] its resources" and give "higher priority" to structural remedies of the California electricity market instead of retroactive refund determinations);
107. Envtl. Def Fund, Inc. v. Nuclear Regulatory Comm 'n, 902 F.2d 785, 790 (10th Cir. 1990) (noting a reason asserted by the Nuclear Regulatory Commission (NRC) for refraining from rulemaking included "its preference for concentrating NRC resources on site-specific enforcement");
108. Panhandle Coop. v. EPA, 771 F.2d 1149, 1152-53 (8th Cir. 1985) (finding that without proof of the agency's workload or the priority of Panhandle's appeal in relation to other matters before the EPA, the court could not determine that the EPA violated its regulation on timeliness);
109. Blankenship v. Sec'y of HEW, 587 F.2d 329, 335 (6th Cir. 1978) (declining to require a ninety-day deadline for Social Security Administration hearings for plaintiffs in Kentucky, and citing the agency's assertion that compliance with that court order would "merely result in shifting resources from other parts of the country to handle hearings in Kentucky, thereby aggravating hearing delays in other areas").
110. For examples of courts forcing agency action because they conclude that no resource allocation concerns exist, see In re Bluewater Network, 234 F.3d 1305, 1316 (D.C. Cir. 2000) (granting mandamus to require an agency to promulgate rules where the agency "has not shown that expedited rulemaking here will interfere with other, higher priority activities");
111. Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 623 n.11 (D.C. Cir. 1987) (requiring an agency to act on regulation and rejecting the agency's resource allocation argument because the agency decision barely discussed this issue);
112. Pub. Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1158 (D.C. Cir. 1983) ("We would hesitate to require [an agency] to expedite the ... rulemaking if such a command would seriously disrupt other rulemakings of higher or competing priority. But we do not confront such a case.");
113. see also In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 420 (D.C. Cir. 2004) (compelling the Federal Energy Regulatory Commission to answer a petition because it has not indicated "that any 'agency activities of a higher or competing priority' have required its attention" (quoting In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 549 (D.C. Cir. 1999))).
114. Oil, Chem. & Atomic Workers Union v. OSHA, 145 F.3d 120, 123 (3d Cir. 1998);
115. see also In re Monroe Commc'ns Corp., 840 F.2d 942, 946 (D.C. Cir. 1988) ("[W]e must give agencies great latitude in determining their agendas.");
116. FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986) ("It is not for the judiciary to ... sit as a board of superintendance directing where limited agency resources will be devoted. We are not here to run the agencies.");
117. Med. Comm. for Human Rights v. SEC, 432 F.2d 659, 674 (D.C. Cir. 1970) ("[E]ven the boldest advocates of judicial review recognize that the agencies' internal management decisions and allocations of priorities are not a proper subject of inquiry by the courts.") .
118. See Richard M. Thomas, Prosecutorial Discretion and Agency Self-Regulation: CNI v. Young and the Ajlatoxin Dance, 44 ADMIN. L. REV. 131, 143 (1992) (noting the inherently political decisions that agencies must make about how to allocate resources and set priorities);
119. WILLIAM F. WEST, CONTROLLING THE BUREAUCRACY: INSTITUTIONAL CONSTRAINTS IN THEORY AND PRACTICE 43 (1995) (asserting that agenda setting is an '"executive function' best left to administrators" because of the "subtle balancing considerations" agencies face when allocating resources).
120. See Frank H. Easterbrook, The Supreme Court 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 42 (1984) (arguing that courts should not become involved in resource allocation decisionmaking by agencies because courts could "control the decisionmaking effectively only by taking charge of the entire operation");
121. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 HARV. L. REV. 1193, 1268-70 (1982) (expressing similar concerns).
122. This judicial reluctance to take over supervisory functions of agencies-particularly in the resource allocation context-may help explain other barriers to judicial review under the APA, such as the Supreme Court's conclusion that only specific "agency action" can be challenged under the APA. See Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 62 (2004) (defining and giving examples of "agency action," all of which "involve circumscribed, discrete agency actions");
123. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 873 (1990).
124. See 470 U.S. 821, 832 ( 1985) ("[W]e recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict-a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.'" (quoting U.S. CONST. art. II, §3)).
125. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) ('"[I]n the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'"
126. (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)));
127. Wayte v. United States, 470 U.S. 598, 607-08 (1985) ("[T]he courts [are] properly hesitant to examine the decision whether to prosecute.").
128. See, e.g., Armstrong, 517 U.S. at 464 (rejecting a selective-prosecution claim because judicial review would involve intrusion of a '"special province' of the Executive");
129. see also United States v. Doe, 125 F.3d 1249,1255 (9th Cir. 1997).
130. See, e.g., Armstrong, 517 U.S. at 465 (stating that prosecutorial decisions involve '"[s]uch factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan'" (quoting Wayte, 470 U.S. at 607));
131. Town of Newton v. Rumery, 480 U.S. 386, 396 (1987) (stating that prosecutors "must consider other tangible and intangible factors, such as government enforcement priorities" and "must decide how best to allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge");
132. see also United States v. Jarrett, 133 F.3d 519, 540 (7th Cir. 1998) ("[The] decision [to prosecute] is administrative in nature, made after a studied assessment of the Government's policy visions and priorities, as well as practical considerations like budgetary constraints ....");
133. United States v. Redondo-Lemos, 955 F.2d 1296, 1299 (9th Cir. 1992) (stating that prosecutorial decisions "are normally made as a result of careful professional judgment as to ... the availability of resources");
134. United States v. Brock, 782 F.2d 1442, 1444 (7th Cir. 1986) (declaring that prosecutors must weigh "the limited availability of prosecutorial resources and the government's enforcement priorities");
135. EUGENE BARDACH & ROBERT A. KAGAN, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS 39 (1982) (describing that in addition to the strength of a case, a "violation [must be] sufficiently serious to warrant criminal prosecution and a portion of [the prosecutor's] scarce legal resources");
136. Shelby A. Dickerson Moore, Questioning the Autonomy of Prosecutorial Charging Decisions: Recognizing the Need to Exercise Discretion-Knowing There Will Be Consequences for Crossing the Line, 60 LA. L. REV. 371, 378 (2000) ("The government simply does not have sufficient resources to investigate, charge, and prosecute all offenses which come to its attention.");
137. Leslie C. Griffin, The Prudent Prosecutor, 14 GEO. J. LEGAL ETHICS 259, 264 (2001) (explaining that prosecutors cannot pursue all crimes because of limits on enforcement resources, and that administrators develop policies that provide for the prosecution of certain crimes at the exclusion of others);
138. Robert Heller, Comment, Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion, 145 U. PA. L. REV. 1309, 1328 (1997) (discussing the "limited resources of... prosecutors' offices" asserted in Armstrong as a reason for broad prosecutorial discretion);
139. Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. REV. 105, 163 (1994) ("Charging decisions are made with an eye to efficient allocation of scarce law enforcement resources.");
140. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1547-49 (1981) (discussing prosecutors' screening and selecting of cases under resource limitations).
141. Other justifications commonly advanced for prosecutorial discretion, and in particular shielding that discretion from judicial review include the need to reduce the potentially over-broad scope of criminal laws, and the need to shield prosecutors' strategic decisions about enforcement from public view. See, e.g., Wayte, 470 U.S. at 607 (maintaining that if a "prosecutor has probable cause to believe that the accused committed an offense defined by statute," then the prosecution decision "generally rests entirely in his discretion," and that evaluating the basis for a prosecution "threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy");
142. Redondo-Lemos, 955 F.2d at 1300 n.4 ("The confidential nature of the charging process serves important institutional functions ....");
143. Dickerson Moore, supra note 71, at 377-78 (explaining that a reason asserted for allowing prosecutorial discretion "is that it serves to mitigate the ill effects of the trend toward legislative over- criminalization");
144. Griffin, supra note 71, at 263-65 (stating that '"prosecutors must exercise judgment about which of the many cases that are technically covered by the criminal law are really worthy of criminal punishment'"
145. (quoting Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2136-37 (1998)));
146. Heller, supra note 71, at 1333-34 (explaining the argument for strong judicial deference to prosecutors' decisions based on a concern that "reveal[ing] prosecutorial and law enforcement strategies" could "underminfe] effective crime control" by reducing the effect of deterrence);
147. Kwei Yung Lee, supra note 71, at 159-60;
148. William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform, 54 OHIO ST. L.J. 1325,1364-65 (1993) (discussing the issue of official guidelines for prosecutors and their potential impact on deterrence);
149. Vorenberg, supra note 71, at 1547-50.
150. Both arguments, however, appear to have far more traction in the particular realm of criminal law rather than in the broader realm of regulatory decisionmaking. With respect to the first argument, we may be concerned about overly broad criminal statutes because of the shame, symbolic statements, and individualized punishment that result from a criminal statute-but we need not be nearly as concerned about broad regulatory provisions enforced by licensing requirements and (generally speaking) civil penalties. Indeed, the fact that most environmental regulatory statutes only provide criminal penalties for particularly egregious violations of the regulatory provisions reflects this distinction. Memorandum from Earl E. Devaney, Director, Office of Criminal Enforcement, EPA, to EPA Employees, on The Exercise of Investigative Discretion 6 (Jan. 12, 1994), available at http://www.epa.gov/ Compliance/resources/ policies/criminal/exercise.pdf. As for the second argument, it has the most force when judicial review is sought of an uncompleted agency decision (such as an investigation), and does not support complete denial of judicial review. In any case, in the regulatory field where broad, sweeping regulatory statutes of unclear scope are allowed-in contrast to criminal statutes-we would want to encourage or even require agencies to provide more specific guidance to allow regulated parties to understand how they might comply with the law.
151. -508 U.S. 182(1993).
152. Id. at 192.
153. Id. at 193
154. (quoting Heckler v. Chaney, 470 U.S. 821, 831 ( 1985)).
155. I am indebted to Prof. Jerry Mashaw for this example.
156. See, e.g., Blankenship v. Sec'y of HEW, 587 F.2d 329, 335 (6th Cir. 1978) (refusing in part to impose a uniform ninety day deadline for the agency to hold all Social Security disability hearings because such an order "will merely result in shifting resources from other parts of the country to handle hearings in Kentucky, thereby aggravating hearing delays in other areas").
157. See infra text accompanying notes 103 -14.
158. See Emerson H. Tiller, Controlling Policy by Controlling Process: Judicial Influence on Regulatory Decision Making, 14 J.L. ECON. & ORG. 114(1998).
159. See William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. REV. 393, 412-42 (2000) (compiling empirical data that shows that most agencies, after remand, continue to pursue their regulatory goals);
160. see also Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1048 chart 18 (1990) (reporting the agency dropped only about five percent of all federal agency decisions remanded by courts).
161. Bressman, Judicial Review of Agency Inaction, supra note 49, at 1687-89.
162. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461,495-96 (2003) (stating that she (the author) will "forego[] a grand definition of the term 'arbitrary'" and instead will focus on the "evidence of a problem rather than its source").
163. Searching judicial review of the rationality of congressional statutes would, of course, raise the specter of Lochnerian substantive due process review. Agency action that is consonant with a congressional statute based on an irrational purpose, or a non-publicregarding purpose, should be upheld simply because it is consistent with the law, even if that law is a poor one.
164. The Constitution requires the President to "take Care that the Laws be faithfully executed," U.S. CONST, art. II, §3, and the Supremacy Clause makes congressional statutes the "supreme Law of the Land," U.S. CONST, art. VI, cl. 2. Accordingly, unless there is another even more fundamental cross-cutting constitutional value, congressional commands in the form of statutes control both presidential action and judicial interpretation-what I call "statutory supremacy." Of course, resource allocation might be just such a cross-cutting value, and I discuss below why we might want to privilege one or the other value where there is a direct conflict. Bressman identifies the strong connection between arbitrariness and statutory supremacy.
165. See Lisa Schultz Bressman, Schechter Poultry at the Millenium: A Delegation Doctrine for the Administrative State, 109 YALE L.J. 1399, 1424-25 (2000) (quoting commentators who make connections between arbitrariness and statutory supremacy).
166. Krent, supra note 61, at 1196 (noting that Congress can always impose requirements on the agency as to how to set its priorities).
167. See Selmi, supra note 54, at 138-39 (noting the trade-off between agency autonomy and accountability).
168. See id. at 141-42 (concluding that deference to agency resource allocation should be reduced where it conflicts with congressional mandates, and increased where Congress has not spoken and the agency is relying on its expertise and policy setting autonomy).
169. See, e.g., NLRB v. Cedar Tree Press, Inc., 169 F.3d 794, 797 (3d Cir. 1999) (discussing an NLRB policy prohibiting the provision of absentee ballots for representation elections because of agency resources that would be required to consider thousands of requests for individual absentee ballots).
170. See, e.g., id. (deferring to agency policy of not providing absentee ballots for labor representation elections because of resource allocation concerns. The court wrote: "We believe the Board has made a valid, well-reasoned determination to deploy its limited resources elsewhere and that this determination should not be disturbed without good cause or clear statutory authority."). In considering claims that an agency has "unreasonably delayed" acting under §706(1) of the APA, courts will explicitly consider the various other decisions and issues that the agency considers high priority.
171. See Biber, supra note 8, at 17-18.
172. See Lincoln v. Vigil, 508 U.S. 182, 192-94 (1993).
173. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990).
174. See Med. Comm. for Human Rights v. SEC, 432 F.2d 659, 674, 675 & n.19 (D.C. Cir. 1970) (reviewing the agency decision because "the full Commission has exercised its discretion to review this controversy" and distinguishing situations where courts might "compel the Commission... either to entertain administrative review of a staff decision in the first instance");
175. see also N.Y. State Dep't of Law v. FCC, 984 F.2d 1209, 1214 (D.C. Cir. 1993) (stating that an agency decision to settle an administrative proceeding may be reviewable where the agency has completed much of the proceeding);
176. Inv. Co. Inst, v. FDIC, 728 F.2d 518, 527-28 (D.C. Cir. 1984) (noting same);
177. Robbins v. Reagan, 780 F.2d 37, 46-47 (D.C. Cir. 1985) (concluding the agency decision to close a homeless shelter was reviewable because the agency had already committed resources to the shelter, and the court was only considering rescission of that commitment);
178. Ernest Gellhorn, Public Participation in Administrative Proceedings, 81 YALE L.J. 359, 381 (1972) ("[OJnce an action is begun the agency's resource commitment has already been made.").
179. As an example of this principle, consider United Steelworkers of Am. v. Pendergrass, 819 F.2d 1263 (3d Cir. 1987). The court had previously held that the agency's decision to issue a narrowly drawn workplace safety regulation was arbitrary and capricious-the agency responded by reinitiating the regulatory process, essentially from scratch.
180. Id. at 1266-67. The court's response was sharp-the agency was required to issue a broader regulation (or an explanation as to why a broader regulation was improper) based on the existing rulemaking record within sixty days. Any additional delay would be unreasonable.
181. Id. at 1269-70. The short timetable for agency reworking of a completed action contrasts strongly with judicial review of agency delays on completing action, where unreasonable delay is usually measured in years.
182. Compare Potomac Elec. Power Co. v. ICC, 702 F.2d 1026,1033-35 (D.C. Cir. 1983) (requiring the agency to act after a ten year delay although refusing to rely explicitly upon deadlines in the underlying statutory scheme), with In re CaI. Power Exch. Corp., 245 F.3d 1110, 1124-25 (9th Cir. 2001) (concluding that a four month delay was not egregious).
183. Cf. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 40-42 (1983) ("[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.").
184. See WWHT, Inc. v. FCC, 656 F.2d 807, 816-17 (D.C. Cir. 1981) ("[T]he greater the agency's investment of resources in considering the issues... and the more complete the record compiled during the course of the agency's consideration, the more likely it is that the ultimate decision not to take action will be a proper subject of judicial review." (internal quotations omitted));
185. Raymond Murphy, Note, The Scope of Review of Agencies ' Refusals to Enforce or Promulgate Rules, 53 GEO. WASH. L. REV. 86, 114 ( 1985) (explaining judicial review of agency refusal to promulgate smoking rules on the grounds that "once the agency had expended the resources to study the proposals in depth, the agency was obligated to address the major issues in its final decision").
186. See State Farm Mut. Auto. Ins. Co. v. Dep't of Transp., 680 F.2d 206, 221 (D.C. Cir. 1982), off d on other grounds, State Farm, 463 U.S. 29; and cases cited therein. Of course, it is possible that agencies might take advantage of this by delaying completion or progress on rulemakings (e.g., issuing notices of proposed rulemaking but avoiding issuing draft regulations) in order to take advantage of heightened deference. But that kind of action might then open the agency up to claims of unreasonable delay.
187. See Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 MlNN. L. REV. 689, 774 (1990) (noting the parallels between an unreasonable delay claim and a claim that an agency has improperly abandoned an action in midstream).
188. See Biber, supra note 8, at 15-17 (describing that as part of a balancing test for judicial review of a claim that agency action has been unreasonably delayed, "the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority").
189. See 5 U.S.C. §553(e) (2000) (requiring agencies to accept petitions for rulemaking);
190. id. §555(e) (requiring agencies to respond to petitions made "in connection with any agency proceeding"). The two provisions have generally been read together by courts to require agencies to respond to petitions for rulemaking.
191. See Massachusetts v. EPA, 127 S. Ct. 1438, 1459 (2007).
192. For examples of courts providing judicial review of agency decisions not to issue a regulation, but with great deference, see Am. Horse Protection Ass'n v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987),
193. concluding that agency refusals to institute rulemaking are reviewable, and Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971), reviewing agency refusal to issue regulations regarding business on an Indian reservation.
194. See also Biber, supra note 8, at 13-14.
195. Alternatively, an agency may even explicitly decide against initiating any work on a particular issue, project, or concern outside of responding to a petition, as discussed above.
196. See Biber, supra note 8, at 13-14 (explaining that "courts are very reluctant to interfere with an agency's ordering of its priorities" except where Congress has imposed a "clear duty").
197. See John A. Ferejohn, The Structure of Agency Decision Processes, in CONGRESS: STRUCTURE AND POLICY 441, 443-45 (Matthew D. McCubbins & Terry Sullivan eds., 1987) (discussing how rulemaking by agencies allows for the "grouping [of] broad classes of decisions into categories" while adjudication is much more focused on the particularities of individual cases).
198. See STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY 453 (4th ed. 1999) (stating that an agency "surely can change" a policy developed through adjudication as long as it explains its change in course)
199. (citing NLRB v. Int'l Union of Operating Eng'rs, 460 F.2d 589, 604 (5th Cir. 1972)
200. and WLOS T.V. v. FCC, 932 F.2d 993, 998 (D.C. Cir. 1991)).
201. See CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 35 (2d ed. 1999) ("Clearly articulated rules offer judges an efficient way to review and determine agencies' stewardship of the law and public policy.").
202. See Massachusetts v. EPA, 127 S. Ct. 1438, 1459 (2007) ("[A]gency refusals to initiate rulemaking 'are less frequent'" than agency decisions not to enforce
203. (quoting Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987)))
204. see also Schuck & Elliott, supra note 80, at 1013-14 (reporting that adjudications consisted of approximately 87% to 98% of agency decisions reviewed by courts in published opinions from the 1960s to the 1980s).
205. See Massachusetts v. EPA, 127 S. Ct at 1459 (concluding that agency refusals to institute rulemaking remain reviewable after Heckler, in part because decisions not to prosecute, unlike rulemaking decisions, are "numerous" and are "typically based mainly on close consideration of the facts of the case at hand, rather than on legal analysis" (quoting Lyng, 812 F.2d at 4)).
206. See Schuck & Elliott, supra note 80, at 1021-22 (reporting that affirmance rates in judicial review of agency decisions are much higher for adjudications (57.8%) than rulemaking (43.9%)).
207. Massachusetts v. EPA, 127 S. Ct. at 1459 (remarking that in contrast to decisions not to enforce in individual cases, "[r]efusals to promulgate rules are ... susceptible to judicial review, though such review is 'extremely limited' and 'highly deferential'"
208. (quoting Nat'l Customs Brokers & Forwarders Ass'n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989))).
209. See Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676-77 (D.C. Cir. 1994) (distinguishing between "expressions of broad enforcement policies" which are reviewable and which "are more likely to be direct interpretations of the commands of the substantive statute rather than... mingled assessments of fact, policy, and law" and "individual enforcement decision[s]" which are unreviewable);
210. Nat'l Wildlife Fed'n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (reviewing an agency regulation that allowed discretion in revoking state drinking water regulatory authority, in part because plaintiff "raise[d] a facial challenge to the EPA statutory interpretation... and d[id] not contest a particular enforcement decision");
211. Nat'l Treasury Employees Union v. Horner, 854 F.2d 490, 496-97 (D.C. Cir. 1988) (allowing judicial review of an OPM personnel policy decision, and distinguishing between a "major policy decision" and "day-to-day personnel management decisions," in part because review of major policy decisions does not run the risk subjecting "hundreds of thousands of employment decisions" each year "to the possibility of judicial review," which would be "utterly impractical")
212. Lyng, 812 F.2d at 4 (concluding that agency refusals to institute rulemaking remain reviewable after Heckler in part because decisions not to prosecute, unlike rulemaking decisions, are "numerous," and are "typically based mainly on close consideration of the facts of the case at hand, rather than on legal analysis"). Of course, the standard of review is quite deferential, as noted above. See Murphy, supra note 95, at 107-14. But see Levin, supra note 97, at 764-68 (arguing that courts should be less likely to review refusals to issue regulations). Levin rests his critique in part on an assertion that judicial review of refusals to issue regulations will increase the burden on agencies because private parties are more likely to seek review of refusals to issue regulations than to seek review of refusals to enforce in individual proceedings. Id. at 764-65. This analysis does not address the fact that the chilling effect on the agency from the mere potential for judicial review may be what matters most for agency resource allocation (as discussed supra notes 15-17 and accompanying text). Where individual proceedings are far more frequent, the chilling effect (and the agency's concomitant diversion of resources to immunize the decisions from judicial review) will be significantly larger. Levin concedes that regulations differ from individual proceedings primarily in terms of the number of people impacted by the regulation, and that this would justify more searching judicial review. Id. at 765, 768.
213. Massachusetts v. EPA, 127 S. Ct. at 1459 (explaining that judicial review of the agency's refusal to act in the case was based on a special judicial review provision in the Clean Air Act, but the Court's analysis was based on APA case law and the Court did not indicate that its analysis was in any material way affected by that difference (citing 42 U.S.C. § 7607(b)(1) (2006))).
214. Id. at 1459-60 (discussing 42 U.S.C. §7521(a)(1), which requires the EPA to issue regulatory standards for any "air pollution which may reasonably be anticipated to endanger public health or welfare").
215. See Biber, supra note 8, at 11-18.
216. See Krent, supra note 61, at 1214 (noting that the possibility of judicial review will cause an agency to "devote considerable time and resources into papering the record to withstand review");
217. Sunstein, Reviewing Agency Inaction, supra note 54, at 673 (noting that if there is judicial review of agency decisions not to act, "it might become necessary to formalize inaction decisions, a step that could have considerable costs")
218. Thomas, supra note 65, at 140 n.67 (noting that judicial review cannot only restrict the ability of agencies to substantively choose where they should allocate their resources, but also that imposition of judicial review entails enormous transaction costs as agencies and private parties must comply with more formal procedures)
219. see also Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1772-76 (1975) (arguing that an increase in judicial review of informal agency decisions has led to much more formality, delay, and use of resources by agencies to make those decisions);
220. Stewart & Sunstein, supra note 66, at 1270 n.324 (noting the risk that judicial review of inaction will increase resource demands on the agency to justify its decisions).
221. The informality of the agency decisions in Heckler is important in distinguishing the absence of judicial review in that case from judicial review of an agency's refusal to, for example, process a Social Security disability claim, where the agency has already established a formal system for adjudicating disputes and the possibility of judicial review will not seriously alter the agency's resource calculus.
222. There is case law that preceded Heckler that reaches similar results. See, e.g., Bays v. Miller, 524 F.2d 631 (9th Cir. 1975) (finding no judicial review of NLRB refusal to file unfair labor practice complaint).
223. But see REA Express v. Civil Aeronautics Bd., 507 F.2d 42 (2d Cir. 1974) (reviewing agency dismissal of complaint). The Supreme Court has raised similar concerns about judicial review of prosecutorial charging decisions in the criminal context.
224. See Wayte v. United States, 470 U.S. 598, 607 (1985) (noting that judicial review of charging decisions might "chill law enforcement")
225. see also United States v. RedondoLemos, 955 F.2d 1296, 1299 (9th Cir. 1992) (noting the "host of virtually insurmountable practical problems" of allowing judicial review of prosecutor charging decisions).
226. Heckler v. Chaney, 470 U.S. 821, 832 (1985).
227. See Transp. Intelligence, Inc. v. FCC, 336 F.3d 1058, 1063 (D.C. Cir. 2003) (concluding that the agency's denial of a petition to revoke a license was reviewable because the agency's grant of the license in the first place "provides a focus for judicial review") (internal citations omitted);
228. Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 677 (D.C. Cir. 1994) ("[A]n agency will generally present a clearer (and more easily reviewable) statement of its reasons for acting when formally articulating a broadly applicable enforcement policy" in contrast to "individual decisions to forego enforcement [which] tend to be cursory, ad hoc, or post hoc" confronting courts "with the task of teasing meaning out of agencies' side comments, form letters, litigation documents, and informal communications")
229. Nat'l Treasury Employees Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988) (reviewing an OPM policy decision because it must follow notice and comment rulemaking, a procedure that "provides a focal point for judicial review")
230. Int'l Union, United Mine Workers v. Mine Safety & Health Admin., 823 F.2d 608, 616 n.5 (D.C. Cir. 1987) (concluding that an agency's grant of interim relief from regulation was reviewable because the agency had exercised its power in a manner that at least allowed review to determine whether the agency had exceeded its powers).
231. -432 F.2d 659,674 (D.C. Cir. 1970).
232. Id.
233. Id.
234. Id.
235. -492 F.2d 641,645-46 (D.C. Cir. 1974).
236. Id. Of course, there might be situations where constitutional requirements of procedural due process require judicial imposition of significant procedural formalities on agency decisionmaking, even when that might result in significant changes in how agencies allocate their resources. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (imposing procedural protections on agency decisions to terminate welfare benefits).
237. Contra Bressman, Judicial Review of Agency Inaction, supra note 49, at 1693-94 (arguing that the Heckler v. Chaney exception to judicial review should be essentially abandoned, whatever the "considerable costs" "in terms of administrative flexibility and administrative efficiency," because there is "no principled way to defend" nonreviewability for agency enforcement decisions while advancing reviewability for agency actions). There is another alternative explanation for the Court's decision in Heckler, albeit one that the Court itself never expressed. To the extent that the agency is being forced to take enforcement action in court, we might have concerns about a supposedly neutral arbiter (the court) requiring a party to initiate an adversarial proceeding in front of that arbiter. A recalcitrant agency, for instance, might decide to initiate the proceeding but only in a pro forma or indifferent manner. However, a supposedly impartial arbiter (i.e., the court) will have a very difficult task of supervising the litigation efforts of one of the adversarial parties and requiring it to make better efforts on its behalf to litigate. These concerns have animated the judicial reluctance to reject settlement agreements between litigants and force further litigation of the case.
238. See, e.g., County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1047-50 (10th Cir. 2002) (noting judicial deference to motions by parties to dismiss cases pursuant to FED. R. CIV. P. 41 and noting concerns that if a motion to dismiss by a plaintiff is denied, the plaintiff "may seek effective dismissal of his case through non-prosecution or poor litigation tactics" and that courts will be ill-placed to force parties to submit higher-quality litigation materials for the court's own consideration in an adversarial proceeding). But this concern has only limited application in the context of judicial review of agency inaction, where much agency activity occurs informally or administratively, such that courts are not directly involved. Indeed, even in Heckler, at least one of the tools available to the agency (suspension of the registration of the drugs for use) would not have required judicial action.
239. See Heckler v. Chaney, 470 U.S. 821, 853 (1985). Accordingly, it would support a narrower application of the Heckler doctrine than would resource allocation.
240. See, e.g., Forest Guardians v. Babbitt, 174 F.3d 1261, 1270 (10th Cir. 1998) (taking a '"shall'-means-shall approach" and holding that an agency can be required to perform tasks that Congress has mandated).
241. Id. at 1272 ("[T]he distinction between agency action 'unlawfully withheld' and 'unreasonably delayed' turns on whether Congress imposed a date-certain deadline on agency action.")
242. see also Stewart & Sunstein, supra note 66, at 1272, 1285-86 (explaining that courts are more likely to force agencies to act where there is strict, statutory duty).
243. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993) ("Of course, an agency is not free simply to disregard statutory responsibilities: Congress may always circumscribe agency discretion to allocate resources by putting restrictions in the operative statutes....").
244. Heckler, 470 U.S. at 832-33.
245. See, e.g., Frank B. Cross, Pragmatic Pathologies of Judicial Review of Administrative Rulemaking, 78 N.C. L. REV. 1013, 1027-36, 1068-69 (2000) (arguing that judicial review of any kind, and particularly of agency failure to comply with deadlines, is flawed and illegitimate)
246. R. Shep Melnick, The Political Roots of the Judicial Dilemma, 49 ADMIN. L. REV. 585, 597 (1997) [hereinafter Melnick, Political Roots] (calling for narrow standing to prevent litigation of agency deadline cases: "Some will complain that denying standing to private attorneys general will make statutory deadlines unenforceable and will thereby discourage Congress from putting specific mandates in statutes. Right. That's the point.")
247. R. Shep Melnick, Administrative Law and Bureaucratic Reality, 44 ADMIN. L. REV. 245 (1992) (questioning the propriety of having courts require agencies to take actions).
248. See Melnick, Political Roots, supra note 131.
249. Cf. U.S. CONST, art. VI, cl. 3 (stating that congressional statutes are the "supreme Law of the land").
250. See, e.g., Pierce, supra note 61, at 90 (rejecting judicial failure to enforce deadlines because "[a]ny judicial action that places the judiciary in a position inconsistent with that of the 'honest agent' of the Framers or the legislative branch imposes high costs on the legitimacy of the political and legal structure of government")
251. see also Selmi, supra note 54, at 139-42 (noting the conflict between resource allocation and upholding congressional deadlines, but concluding that courts should uphold deadlines because "it is entirely appropriate for courts to determine whether the agency's inaction violates a purely statutory command. In [such a case], the need for agency accountability is more important than protecting its autonomy")
252. Sunstein, Reviewing Agency Inaction, supra note 54, at 670 (while the executive has "power to set enforcement priorities and to allocate resources to those problems that, in the judgment of the executive, seem most severe" that does not "authorize the executive to fail to enforce those laws of which it disapproves")
253. cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").
254. See EDWARD L. RUBIN, BEYOND CAMELOT, RETHINKING POLITICS AND LAW FOR THE MODERN STATE 224 (2005) (developing the distinction between Congress's role in setting policy and the Executive's role in implementation).
255. See, e.g., ROBERT E. MCCORMICK & ROBERT D. TOLLISON, POLITICIANS, LEGISLATION, AND THE ECONOMY: AN INQUIRY INTO THE INTEREST-GROUP THEORY OF GOVERNMENT 16-25, 42-44 (1981)
256. Steven P. Croley, Public Interested Regulation, 28 FLA. ST. U. L. REV. 7, 35-36 (2000) [hereinafter Croley, Public Interested Regulation].
257. See Croley, Public Interested Regulation, supra note 136, at 35-36
258. MCCORMICK & TOLLISON, supra note 136, at 16-21, 42-44. The terms "concentrated" or "distributed" are widely used in the scholarly literature.
259. See, e.g., R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 25-26 (1990)
260. James Q. Wilson, The Politics of Regulation, in THE POLITICS OF REGULATION 357,370 (James Q. Wilson ed., 1980).
261. See Croley, Public Interested Regulation, supra note 136, at 14-16, 36-38.
262. See, e.g., DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 137 (1974) (arguing that the electoral process means Congress favors organized interests). "Congress will be reluctant to legislate new programs benefiting the unorganized over the opposition of the organized." Id.
263. See JOHN E. CHUBB, INTEREST GROUPS AND THE BUREAUCRACY: THE POLITICS OF ENERGY (1983) (providing case studies of the expense of monitoring and being involved in administrative process, and how accordingly process tended to be dominated by industry groups with larger resources and more benefits from lobbying)
264. Louis L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 11-14 (1965) (noting the cost of participation in agency proceedings and that public interest groups participate in only a fraction of those proceedings)
265. Ernest Gellhorn, supra note 92, at 389-94 (same);
266. Roger C. Cramton, The Why, Where and How of Broadened Public Participation in the Administrative Process, 60 GEO. L.J. 525, 538 (1972)
267. Roger Noll, Political Foundations of Regulatory Policy, in CONGRESS: STRUCTURE AND POLICY 462, 479-80 (Mathew D. McCubbins & Terry Sullivan eds., 1987) (same)
268. Roger G. Noll, Government Regulatory Behavior: A Multidisciplinary Survey and Synthesis, in REGULATORY POLICY AND THE SOCIAL SCIENCES 31, 44 (Roger G. Noll ed., 1985) (noting this dynamic)
269. Peter H. Schuck, Public Interest Groups and the Policy Process, PUB. ADMIN. REV. 132, 137-39 (Mar./Apr. 1977) (same)
270. see also KAY LEHMAN SCHLOZMAN & JOHN T. TIERNEY, ORGANIZED INTERESTS AND AMERICAN DEMOCRACY 316 (1986) (providing evidence as to greater resources available to industry groups).
271. I recognize that there are important, and in many ways valid, critiques of the public choice theory. Any casual observer of the political landscape will note that a wide range of groups at least purport to represent widely diffused interests, and at times represent those interests rather effectively. Examples are environmental, consumer interest, and taxpayer groups.
272. See Croley, Public Interested Regulation, supra note 136, at 92-95
273. R. Shep Melnick, Strange Bedfellows Make Normal Politics: An Essay, 9 DUKE ENVTL. L. & POL'Y F. 75, App. A (1998) (providing data as to size of national environmental groups). There are a variety of theories to explain the existence of these groups, and their existence at least to some extent calls into question whether the collective action problems described by the public choice theory are the sole determinants of the political system.
274. See Croley, Public Interested Regulation, supra note 136, at 19-22 (describing how moral imperatives and suasion, inherent rewards from participation in group activities, and political entrepreneurship might explain how diffuse beneficiary organizations are created and run);
275. id. at 46-48 (describing the fundamental problems that collective action theory has in explaining how any group organization might occur)
276. Mark Kelman, On DemocracyBashing: A Skeptical Look at the Theoretical and "Empirical" Practice of the Public Choice Movement, 74 VA. L. REV. 199, 202-03 (1988) (challenging the assumptions and empirical evidence underlying public choice theory)
277. V. Kerry Smith, A Theoretical Analysis of the "Green Lobby", 79 AM. POL. SCI. REV. 132 (1984) (developing models to demonstrate that environmental groups can develop despite collective action problems). Moreover, public choice theory necessarily requires basic assumptions about human nature and behavior that are clearly false in important and significant ways.
278. Edward L. Rubin, Public Choice, Phenomenology, and the Meaning of the Modern State: Keep the Bathwater, But Throw Out That Baby, 87 CORNELL L. REV. 309, 340-46 (2002). Nonetheless, a number of scholars have concluded that there appears to be at least some truth to the collective action problems identified in public choice theory.
279. See Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 24-25 (1998) [hereinafter Croley, Theories of Regulation] ("[A]ny serious theory must somehow consider that collective goods, including monitoring, will in the absence of some catalyst tend to be underproduced.")
280. id. at 52-56, 63-65, 145-47 (noting that the empirical evidence for the public choice theory is mixed but that there is at least some "modest support" for the theory)
281. Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. ECON. & ORG. 167, 170-71 (1990)
282. Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 CHI.-KENT L. REV. 123, 146 (1989) [hereinafter Mashaw, Economics of Politics] (concluding that public choice theory provides a partial explanation of the motives of legislators)
283. Lars Udéhn, Twenty-Five Years with The Logic of Collective Action, 36 ACTA SOCIOLOGICA 239, 240, 256 (Scandinavian Sociological Ass'n 1993) (noting same). To the extent there is some truth to the public choice story, we would want to design our regulatory structure in a way to minimize the risks that public choice flaws would pose to the decisionmaking process.
284. See JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 25-29 (1997).
285. See 33 U.S.C. §1251(a)(1)-(2) (2000). Obviously, these environmental goals are yet to be achieved in the United States, even if those goals are achievable.
286. For an account of how symbolic regulatory legislation may be passed that does not actually benefit the public in practice, see MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS 22-29 (1964).
287. See Bressman, Judicial Review of Agency Inaction, supra note 49, at 1688 (noting that "Congress often writes broad delegating statutes to create opportunities for narrow interests to dominate agency decisionmaking" and that "Congress similarly grants power without meaningful administrative limits so that its members will have space to push agencies toward preferential outcomes")
288. James V. DeLong, New Wine for a New Bottle: Judicial Review in the Regulatory State, 72 VA. L. REV. 399, 434-35 (1986) (noting same)
289. Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, 54 LAW & CONTEMP. PROBS. 327, 328-29 (1991) (noting that appropriations committees, often skeptical of environmental laws, had purposefully passed low budgets to undermine enforcement, and that the committees "felt far more secure in undermining the statutory mandates in a less visible way through the appropriation process" as opposed to direct attempts at repeal)
290. Mark Seidenfeld, Bending the Rules: Flexible Regulation and Constraints on Agency Discretion, 51 ADMIN. L. REV. 429, 443-44 (1999) (noting that Congress often imposes stringent duties on agencies but refuses to provide resources to carry out those duties, thus simultaneously rewarding the public and private interests). Interference with agency implementation may be the result not of a decision by Congress as a whole, but instead of decisions by individual congressional committees or even individual members of those committees.
291. See R. DOUGLAS ARNOLD, CONGRESS AND THE BUREAUCRACY: A THEORY OF INFLUENCE (1979)
292. Harold H. Bruff & Ernest Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 HARV. L. REV. 1369, 1421-22 (1977) (providing examples of appropriations and other congressional committees putting pressure on agencies to prevent regulation)
293. J.R. DeShazo & Jody Freeman, The Congressional Competition to Control Delegated Power, 81 TEX. L. REV. 1443 (2003) (providing empirical evidence of committee influence on agency decisionmaking)
294. Eric Heiland, The Waiver Pork Barrel: Committee Membership and the Approval Time of Medicaid Waivers, 17 CONT. ECON. POL'Y 401 (1999)
295. MICHAEL W. KIRST, GOVERNMENT WITHOUT PASSING LAWS 6-7 (1969) (describing the ways in which appropriations committees can use legislative history, oversight hearings, and other nonstatutory tools to control an agency's substantive decisions)
296. Jeremy Rabkin, Micromanaging the Administrative Agencies, 100 PUB. INTEREST 116 (1990) (providing examples of appropriations committees closely controlling agency decisionmaking)
297. Barry R. Weingast & Mark J. Moran, Bureaucratic Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J. POL. ECON. 765 (1983) (noting same)
298. see also JOSEPH L. SAX, DEFENDING THE ENVIRONMENT 1 (1970) (describing a case study of how lobbying by individual Congressmen had an important impact on agency decisionmaking).
299. Matthew D. McCubbins, Roger G. Noll, & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 442-44, 457, 468-70 (1989) (noting capture of the House of Representatives Commerce Committee by specific pro-business interests, and the imposition of elaborate procedures by Congress on the agency, in order to restrict the agency's ability to implement statutory programs).
300. See Bressman, Judicial Review of Agency Inaction, supra note 49, at 1689 (stating that Congress can dodge blame by "placing the agency on the hook")
301. Pierce, supra note 61, at 69 ("The path of least resistance for any politician is to enact or retain the politically valuable rhetoric embodied in absolutist regulatory statutes; to decline to appropriate the funds necessary to implement the statutes; and then to chastise the agencies for failing to perform their statutorily assigned tasks.").
302. The Bush Administration's Clear Skies initiative, in which the administration declined to enforce existing air laws against major industries, has been cited as an example of this type of behavior. See Bressman, Beyond Accountability, supra note 82, at 507-08
303. see also Bressman, Judicial Review of Agency Inaction, supra note 49, at 1689 (noting that agencies frequently act in a manner to reward narrow interests and that agencies "are beholden to elected officials who cater to private interests while escaping responsibility for that result")
304. Lazarus, supra note 144, at 328-29 (noting how agency officials cooperated with Congress in underfunding the enforcement of environmental laws)
305. Seidenfeld, supra note 144, at 459-63 (noting the risk of agency capture by regulated groups).
306. For empirical evidence of interest group influence on agency decisionmaking, see, for example, WESLEY A. MAGAT, ALAN J. KRUPNICK & WINSTON HARRINGTON, RULES IN THE MAKING: A STATISTICAL ANALYSIS OF REGULATORY AGENCY BEHAVIOR 147, 156-57, 170-71 (1986)
307. LAWRENCE S. ROTHENBERG, REGULATION, ORGANIZATIONS, AND POLITICS: MOTOR FREIGHT POLICY AT THE INTERSTATE COMMERCE COMMISSION (1994)
308. DAVID VOGEL, NATIONAL STYLES OF REGULATION: ENVIRONMENTAL POLICY IN GREAT BRITAIN AND THE UNITED STATES 164-68 (1986)
309. Amy Whritenour Ando, Waiting to be Protected Under the Endangered Species Act: The Political Economy of Regulatory Delay, 42 J.L. & ECON. 29 (1999)
310. Daniel P. Carpenter, Groups, the Media, Agency Waiting Costs, and FDA Drug Approval, 46 AM. J. POL. SCI. 490 (2002)
311. Joseph Cooper & William F. West, Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules, 50 J. POL. 864, 879 (1988)
312. Maureen L. Cropper et al., The Determinants of Pesticide Regulation: A Statistical Analysis of EPA Decision Making, 100 J. POL. ECON. 175 (1992)
313. Lea-Rachel D. Kosnik, Sources of Bureaucratic Delay: A Case Study of FERC Dam Relicensing, 22 J.L. ECON. & ORG. 258, 285 (2005)
314. Michael R. Moore, Elizabeth B. Maclin & David W. Kershner, Testing Theories of Agency Behavior: Evidence from Hydropower Project Relicensing Decisions of the Federal Energy Regulatory Commission, 77 LAND ECON. 423 (2001)
315. Hilary Sigman, The Pace of Progress at Superfund Sites: Policy Goals and Interest Group Influence, 44 J.L. & ECON. 315 (2001).
316. Croley, Public Interested Regulation, supra note 136, at 34-35.
317. For instance, in the vast majority of individual adjudicatory decisions, an agency's decision not to take action will not be made explicit through a formal adjudicatory proceeding, where the APA places substantial procedural requirements on the agency, according to 5 U.S.C. §554, but instead through informal decisions about which cases to pursue or not. Such informal adjudicatory decisions require almost no procedural steps under the APA, aside from providing a reasoned explanation for the decision to a court should the decision be reviewed judicially.
318. See CHRISTINE A. KLEIN, FEDERICO CHEEVER, & BRET C. BIRDSONG, NATURAL RESOURCES LAW: A PLACE-BASED BOOK OF PROBLEMS AND CASES 185 (2005). As for rulemaking decisions, the decision to terminate a rulemaking proceeding, reject a petition for rulemaking, or not to initiate a rulemaking in the first place at most would trigger the notice and comment obligations for informal rulemaking on the APA, and in many cases might not even trigger those requirements-leaving the procedural standard at the very low level of providing a reasoned explanation for the decision to a court.
319. See Croley, Public Interested Regulation, supra note 136, at 34-35
320. Peter L. Kahn, The Politics of Unregulation: Public Choice and Limits on Government, 75 CORNELL L. REV. 280, 292 (1990) ("[Opposition to government actions which harm [a small] group will often be a more productive investment of lobbying dollars than is support for actions which help the group. The courts in general hold administrative agencies to a far lower standard of judicial review when agencies fail to act than when they do affirmatively act."). Some scholars have argued that the public choice theory of regulation is undermined because only informal agency decisionmaking is without significant procedural requirements, and accordingly it would be relatively difficult for particular special interests to monopolize the administrative process.
321. See Croley, Theories of Regulation, supra note 141, at 144-45. Given the importance of agency resource allocation decisions to the implementation of regulatory programs, agencies are unlikely to miss the opportunity to use inaction (a form of informal agency decisionmaking) to reach substantive outcomes.
322. See Croley, Public Interested Regulation, supra note 136, at 34
323. see also Stewart, supra note 115, at 1754 & n.404 (noting judicial concerns that informal agency decisionmaking was being used to benefit regulated industry).
324. See Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 424-33 (2007) (discussing the difficulty that regulatory beneficiaries have in monitoring informal agency action)
325. cf. Jonathan R. Macey, Separated Powers and Positive Political Theory: The Tug of War Over Administrative Agencies, 80 GEO. LJ. 671, 682-83 (1992) (noting that the requirement that agencies provide explanations for their decisions reduces monitoring costs for the public and thus opportunities for agencies to hide special-interest rewards).
326. See D. RODERICK KIEWIET & MATHEW D. MCCUBBINS, THE LOGIC OF DELEGATION: CONGRESSIONAL PARTIES AND THE APPROPRIATIONS PROCESS 13-14 (1991) (discussing the rise of the use of continuing appropriations resolutions in the late twentieth century and the increase in power provided to appropriations committees).
327. See Ferejohn, supra note 104, at 455 (describing agency administrative processes as less public than legislative processes).
328. As two scholars have put it: "[T]hese internal dynamics play out behind the scenes, invisible to all but a handful of sophisticated academics and Washington insiders. Surely, the 'median voter' would be surprised to discover that a small group of well-positioned legislators have such a powerful and potentially undermining influence on laws passed by earlier majorities." DeShazo & Freeman, supra note 144, at 1448
329. see also R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 102-03, 119-20 (1990) (noting how large appropriations and reconciliation bills can mask political choices); Levine & Forrence, supra note 141, at 185 (acknowledging the difficulty citizens have in monitoring the complex administrative process)
330. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV 405, 416 (1989) [hereinafter Sunstein, Interpreting Statutes] ("[C]itizens have access to the statutory words and can most readily order their affairs in response to those words."). Appropriations bills are often a mystery to members of Congress not on the appropriations committees, let alone the public at large.
331. See, e.g., CHRISTOPHER H. FOREMAN, JR., SIGNALS FROM THE HILL: CONGRESSIONAL OVERSIGHT AND THE CHALLENGE OF SOCIAL REGULATION 98-102 (1988) (pointing out that appropriations committee reports often contain key language to guide agencies that cannot be easily revised or controlled by Congress as a whole).
332. See NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAw, ECONOMICS, AND PUBLIC POLICY 95-96 (1994) (noting that administrative action is often "less observable and more complex" and therefore "the advantages of concentrated interests are greater and the likelihood of minoritarian influence increases," with environmental issues being a particularly strong example of the risk)
333. Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 232-33 & n.47 (1986) [hereinafter Macey, Interest Group Model] ("Interest groups and politicians have incentives to engage in activities that make it more difficult for the public to discover the special interest group nature of legislation. This often is accomplished by the subterfuge of masking special interest legislation with a public interest façade.")
334. SCHLOZMAN & TIERNEY, supra note 140, at 311, 314-15, 395-96 (commenting that the key to interest group success is in the implementation of statutes, not just the passage of statutes, and arguing that interest groups are more likely to be successful in influencing low-profile implementation decisions than high-profile decisions, particularly when the goal is to block government action rather than initiate government action)
335. Martin Shapiro, Dishonest Corporatism: Who Guards the Guardians in an Age of Soft Law and Negotiated Regulation?, in CREATING COMPETITIVE MARKETS: THE POLITICS OF REGULATORY REFORM 319, 327-30 (Marc K. Landy, Martin A. Levin, & Martin Shaprio eds., 2007) (arguing that close cooperation in regulatory policy between government and business may result in hidden arrangements that undermine achievement of the public interest).
336. As Neil Komesar has put it: What a politician would never do on the soap box, he or she can afford to do in the more complex, more hidden world of the bureaucracy. A politician may declare an abiding concern for the environment and even support broad (albeit vague) legislation and at the same time block implementation by halting prosecution under the guise of some procedural or jurisdictional rationale or by inhibiting particular prosecutions through pressure on the implementing agency. In turn, more sophisticated, concentrated interests may feel satisfied to know that what they appeared to have lost in the legislature they can recover in the administrative process. KOMESAR, supra note 156, at 96.
337. See 33 U.S.C. §1314(1) (2000)
338. see also ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, POLICY (2ded. 1996).
339. "[W]e would prefer to see a statute repealed, amended, or reauthorized, than to see it systematically undermined out of public view." DeShazo & Freeman, supra note 144, at 1504-05 (adding that the result of forcing changes to occur through the legislative process would be to "render the trade-offs transparent to the voters, which would generate greater electoral accountability")
340. see also Keith Werhan, The Neoclassical Revival in Administrative Law, 44 ADMIN. L. REV. 567, 619 (1992) (arguing that courts should strictly enforce statutes with "public-regarding" purposes, even those broadly worded, in order to counteract public choice failures in the administrative and legislative branches).Repeal could happen not just through a direct amendment of the underlying substantive law, but also through a congressional repeal of the underlying appropriations authority that directly and specifically targets the substantive program at issue. In such a situation, there will be tension between Congress's clear statements in the substantive law and its clear statements in the appropriations statutes. Perhaps the best solution would be to follow the path taken by the Ninth Circuit-find that a recalcitrant agency is in violation of the law for failure to complete its obligations in a timely manner, but also refuse to impose sanctions against the agency, since after all, its failures are only due to congressional action.
341. See Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867 (9th Cir. 1995). This result both highlights the contradictions in congressional action while also respecting the legal status of congressional appropriations decisions.
342. See Pierce, supra note 61, at 88 (noting the possibility that strict judicial enforcement of deadlines will "increase the pressure on the politically accountable branches to take some ... actions that can yield an improvement in agencies' performance," whether through structural reform, elimination of deadlines and other substantive requirements, or increases in resources, while lax judicial enforcement of deadlines will result in less pressure)
343. Sargentich, supra note 48, at 606 (Agency "problems of being overworked and underfunded should be taken to Congress and the President")
344. Patricia M. WaId, Judicial Review in the Time of Cholera, 49 ADMIN. L. REV. 659, 662-63 (1997) (arguing for strict judicial review because it will
345. see also WILLIAM L. CARY, POLITICS AND THE REGULATORY AGENCIES 57 (1967) (arguing that it is normatively preferable to have decisions made explicitly by Congress in full public view, than in informal and secret ways by agencies that are vulnerable to industry pressure). This conclusion contrasts with commentary that has argued that courts should defer to congressional decisions not to fund agencies because they are declarations that the issue in question is low priority. See DeLong, supra note 144, at 442.
346. Cf Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1036, 1054, 1058 (2006) (developing a model that shows that a legislature will prefer judicial implementation of statutes when it has a strong desire to ensure consistent interpretation over time)
347. Matthew C. Stephenson, "When the Devil Turns... ": The Political Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59 (2003) (arguing that political branches may create an independent judiciary as an insurance mechanism against wild variations in policy outcomes in the future).
348. See Sunstein, Constitutionalism After the New Deal, supra note 48, at 458 n.160, 472-73 (noting the importance of judicial review of agency decisions to ensure implementation of statutory programs)
349. see also DeShazo & Freeman, supra note 144, at 1504 ("[W]e think it normatively problematic that a small handful of powerful and wellplaced legislators can exert pressure on agencies to frustrate statutory directives intended to have general and diffuse effects out of self-interest.").
350. One might respond that the dynamic just described is not a flaw at all, but instead is simply the natural result of individuals with very strong preferences being better able to organize and influence the political process-and that there is nothing necessarily wrong with a democratic system registering not just the preferences of citizens, but their intensity as well.
351. See Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE LJ. 31, 49-58 (1991) (noting that, absent a normative baseline to measure political outcomes, public choice theory does not in and of itself provide a basis for criticizing those outcomes). To the extent that citizens with stronger preferences are able to maintain their political advantage through their use of organizational advantages to manipulate the political process through the passage of symbolic statutes that are subsequently not implemented, I would argue that there is a serious normative concern.
352. See Levine & Forrence, supra note 141, at 176-77 (defining "special interests" as policies that result only because of differential levels of "information, organization, and transaction and monitoring costs").
353. The difference between judicial review of an agency refusal to initiate proceedings and judicial review of completed proceedings can be shown by comparing Heckler v. Chaney, 470 U.S. 821, 837-38 (1985) (denying judicial review of agency decision not to initiate enforcement),
354. with FTC v. Klesner, 280 U.S. 19, 30 (1929) (reviewing agency decision to initiate administrative proceedings and concluding agency had improperly filed complaint).
355. See also infra Table 1, which provides a rough overview of the rank order of judicial review of agency decisions based on deference due to resource allocation concerns.
356. See also Biber, supra note 8, at 10-14 (describing levels of deference in the context of judicial review of agency action and inaction).
357. Ronald A. Cass, Massachusetts v. EPA: The Inconvenient Truth About Precedent, 93 VA. L. REV. IN BRIEF 73, 78, May 21, 2007, available at http://virginialawreview.org/ inbrief/2007/05/21/cass.pdf.
358. An agency's decision to repeal a regulation is not treated deferentially like an agency's decision not to regulate, but instead under the same standard as an agency's decision to issue a regulation and regulate. See Motor Vehicle Mfrss. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 40-42 (1983).
359. See Bradley Behrman, Civil Aeronautics Board, in THE POLITICS OF REGULATION 75 (James Q. Wilson ed., 1980). As an example of agency inaction leading to regulation, there is evidence that after his 1980 election win, President Reagan had the Interstate Commerce Commission delay or refuse to issue new trucking licenses as a political reward to the Teamsters Union, partially undoing deregulatory efforts by the ICC before 1980.
360. See B. DAN WOOD & RICHARD W. WATERMAN, BUREAUCRATIC DYNAMICS: THE ROLE OF BUREAUCRACY IN A DEMOCRACY 35-37 (1994).
361. See Active Judges and Passive Restraints, REGULATION, July-Aug. 1982, at 10.
362. It is also a distinction that the Supreme Court has already rejected. In the pre-APA judicial review case law, a distinction between an agency decision to regulate and not to regulate was developed for a while under the Supreme Court's "negative order" doctrine, with an agency decision not to regulate constituting an unreviewable "negative order." Only an agency decision requiring a private party to act in some way constituted a reviewable order.
363. See Rochester Tel. Corp. v. United States, 307 U.S. 125, 126-29 (1939) (describing the doctrine). The Supreme Court explicitly rejected this distinction and concluded that any agency action that finally determines legal rights or obligations was reviewable. Id. at 140-43 (rejecting the doctrine).
364. See Sunstein, Reviewing Agency Inaction, supra note 54, at 666 n.85 (stating that "the very concepts of 'inaction' and 'action' are coherent only if one has a background understanding of the normal or desirable functions of government").
365. Indeed, it is precisely this situation that has led the Court to recognize competitor standing and allow businesses to challenge the grants of licenses or license exemptions to competitors. See, e.g., Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970).
366. For an example of the difficulties of determining whether an agency's action is coercive and restrictive,
367. see Transp. Intelligence, Inc. v. FCC, 336 F.3d 1058, 1062-64 (D.C. Cir. 2003)
368. and Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 674-75 (D.C. Cir. 1994)-case law regarding whether agency waivers of licensing requirements is reviewable. There are numerous examples of judicial review of agency actions that prompted (sometimes enormous) expansion of regulatory programs.
369. See, e.g., R. SHEP MELNICK, REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT 71-192 (1983) (describing judicial review of EPA decisions regarding air pollution that resulted in dramatic expansion of regulatory powers under the Clean Air Act).
370. See, e.g., David P. Currie, The Constitution in Congress: The Public Lands, 1829-1861, 70 U. CHI. L. REV. 783 (2003) (describing the conflict in the pre-Civil War arena over the proper constitutional role of the federal government in supporting internal improvements and economic development).
371. See, e.g., Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 186-87, 219-20 (1992)
372. Cass R. Sunstein, Reviewing Agency Inaction, supra note 54, at 666-68 (comparing the Heckler rationale that courts should not attempt to impose regulation on private parties to the Lochner-era of judicial review)
373. see also Bressman, Judicial Review of Agency Inaction, supra note 49, at 1695-96 (agreeing with Sunstein).
374. There is plenty of concern in that legislative history about the expansion of administrative agencies exercising their coercive authority, and that concern was the basis for the procedural reforms implemented in the APA.
375. See S. REP. NO. 79-752, at 193-94 (1945) (discussing procedural requirements imposed by the APA)
376. H.R. REP. NO. 79-1980, at 242-44 (1946) (discussing the need for standardized procedural requirements given the great expansion of the administrative state)
377. see also Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 VA. L. REV. 219, 232 (1986) (describing how the APA was inspired by anti-New Deal reaction to growth of regulatory agencies);
378. George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. REV. 1557, 1559, 1678 (1996) (chronicling how the APA began as an effort by conservatives to kill the New Deal and, as a result of compromise, became a more moderate check on agency powers). This is not to deny that elements of the conservative coalition that initiated the reform efforts that eventually led to the APA sought to use increased procedural restrictions and judicial review of agency decisionmaking to obstruct regulatory action.
379. See Shepherd, supra, at 1600, 1606, 1680. However, given the compromising nature of the APA as passed by Congress, one can hardly interpret the act as intended to stymie all agency regulation.
380. See id. at 1649-83
381. see also Stewart & Sunstein, supra note 66, at 1248 (noting compromise nature of APA). Moreover, increasing procedural requirements and judicial review in order to reduce regulatory power over individual rights is an entirely different matter from whether courts should prod agencies into taking steps to regulate-steps that would have to comply with the APA's procedural reforms in any case. Indeed, a number of conservatives who pushed for strict procedural requirements and judicial review of agency action also advocated for a petition system by which parties could seek agency action, with judicial review of such denials.
382. See Shepherd, supra, at 1665. Presumably, the rationale was that conservatives wanted the ability to petition agencies to either repeal rules or grant licenses or waivers-i.e., agency action for deregulatory purposes.
383. Scholars have argued that until the 1960s and 1970s, courts were generally unwilling to hear the claims of regulatory beneficiaries seeking to challenge agency decisionmaking, using doctrines such as standing to deny any review.
384. See, e.g., Stewart & Sunstein, supra note 66
385. Stewart, supra note 115. Even if true, however, these arguments do not address the question of whether courts would consider claims concerning agency inaction. As noted above, agency inaction can involve questions that harm regulatory subjects as well as regulatory beneficiaries.
386. Scalia, Doctrine of Standing, supra note 43, at 897.
387. Id. at 895-96 (arguing that the doctrine of standing is essential to restricting the courts' role to protecting minority rights).
388. Id. at 896
389. see also Melnick, Political Roots, supra note 131, at 596-97 (arguing against standing for environmental groups because they "have clout in Washington. We should encourage them to spend less time in court and more time lobbying the House Appropriations Committee.").
390. These concerns were familiar to the Founding Fathers, albeit not under the "public choice" label. See Bressman, Beyond Accountability, supra note 82, at 498.
391. See Sargentich, supra note 48, at 616 (also raising this critique of the individual rights approach). As a result, broad and sweeping exceptions to judicial review of agency inaction, for example, will result in asymmetries where the regulated community's narrow interests will be overrepresented in the political and judicial process, while the broader interests of the public will be underrepresented. Bressman, Judicial Review of Agency Inaction, supra note 49, at 1692-93.
392. See generally BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 3 (Univ. of Chicago Press 1980) (analyzing the history of judicial review)
393. James D. Gwartney & Richard E. Wagner, Public Choice and the Conduct of Representative Government, in PUBLIC CHOICE AND CONSTITUTIONAL ECONOMICS 3, 4 (James D. Gwartney & Richard E. Wagner eds., 1988) (discussing the importance of constitutional controls over legislative actions).
394. See MANUEL F. COHEN & GEORGE J. STIGLER, CAN REGULATORY AGENCIES PROTECT CONSUMERS? 14-16, 47-50, 83-84 (Am. Enterprise Inst, for Pub. Policy Research ed., 1971) (laying out the debate on regulation as a means to promote competition)
395. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 165, 263-65 (Harvard Univ. Press 1985) (discussing judicial review of land use regulation);
396. SIEGAN, supra note 185, at 22, 120-21, 143, 188-89, 191-93, 269, 277-86 (explaining how historically, the legislature favored special interests rather than the public interest)
397. Peter H. Aranson, Procedural and Substantive Constitutional Protection of Economic Liberties, in PUBLIC CHOICE AND CONSTITUTIONAL ECONOMICS 285, 290-91
398. Gwartney & Wagner, supra note 184, at 22-23.
399. See EPSTEIN, supra note 185, at 19-20, 30-31, 214-15, 263-65, 277-82, 299-300 (discussing the Takings clause)
400. SIEGAN, supra note 184, at 7, 316-21 (explaining the use of constitutional clauses to protect property rights)
401. Aranson, supra note 185, at 301-11 (contending that over the last two centuries, constitutional protections for property rights under the takings clauses, the contracts clause, and the commerce clause have been eroded by Supreme Court decisions)
402. Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. CHI. L. REV. 703 (1984) (discussing the Supreme Court's interpretation of the Contract Clause);
403. Gwartney & Wagner, Public Choice and the Conduct of Representative Government, supra note 184, at 23-25 (describing Congress's tax and spending power)
404. Richard E. Wagner & James D. Gwartney, Public Choice & Constitutional Order, in PUBLIC CHOICE AND CONSTITUTIONAL ECONOMICS, supra note 184, at 29, 37-40, 77-80, 82-83 (discussing the constitutional provisions that provide protection from takings and the freedom to contract)
405. see also Croley, Theories of Regulation, supra note 141, at 40-41 (categorizing this group of scholars as "public choice" theorists, and stating that "for the public choice theory regulatory reform means not reform of the regime, but its abandonment;
406. Elhauge, supra note 163, at 44 (noting same);
407. Kahn, supra note 151, at 280, 283-87;
408. Macey, Interest Group Model, supra note 156, at 226 (identifying this thread of argument in the scholarly literature);
409. Jerry L. Mashaw, Constitutional Deregulation: Notes Towards a Public, Public Law, 54 TUL. L. REV. 849 (1980) (arguing for a weaker version of judicial review to prevent special interest regulation). In reaching these conclusions, these scholars often equate all groups that attempt to mobilize and lobby the government - whether they purport to represent industry, consumers, or environmental interests - as "special interests" that are seeking "rents" and therefore are normatively undesirable.
410. See Mashaw, Economics of Politics, supra note 141, at 132-33.
411. See Elhauge, supra note 163, at 43 n.54 (stressing the problems generated by the influence of well-organized interest groups).
412. See also Kahn, supra note 151, at 287, 292-95 (arguing that "schemes designed to obstruct the power of government to adopt regulation... risk serious error" because such "[b]arriers to government action would bias the political process" against regulation, a threat that is particularly dangerous since the system may already be biased against regulatory action, and further noting that the public choice literature has ignored this possibility);
413. id. at 308-09 (noting that regulation that provides broad benefits to the public at the expense of regulation of a number of different industries is unlikely to be the result of special-interest lobbying).
414. See Macey, Interest Group Model, supra note 156.
415. Id. at 250-55 (explaining judicial statutory interpretation).
416. See, e.g., William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 291 (1988) (advocating the development of constitutional rules to reduce rent-seeking);
417. Sunstein, Interpreting Statutes, supra note 155, at 478 (discussing judicial interpretation of regulatory statutes);
418. Easterbrook, supra note 66.
419. See Macey, Interest Group Model, supra note 156, at 241-42 (noting that extensive judicial review of legislation for rent-seeking would require drastic revision of regulations and intrusive judicial review).
420. See id. at 254 (recommending that courts should interpret statutes "so as to serve the public" but never specifying the terms of what it means for a statute to "serve the public");
421. see also Elhauge, supra note 163, at 48-59 (noting that claims that courts should rule in order to advance the "public interest" and to prevent public choice failures in administrative law necessarily depend on often unarticulated normative determinations about what the "public interest" is);
422. id. at 45, 59-66 (noting problems with Macey's, Sunstein's, and Eskridge's theories on these grounds)
423. Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 VA. L. REV. 471, 472-73 (1988) (asserting the difficulty of distinguishing between government activities involving rent-seeking and activities "that represent wealth-increasing 'public interest'");
424. Mashaw, Economics of Politics, supra note 141, at 155 (noting the difficulty of reaching such conclusions).
425. Thus, courts will not be called upon to make difficult decisions about whether the political decisions made by the agency are appropriate or inappropriate. Cf. CHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY 199-203 (1990) (calling on agencies to be explicit about political judgments and courts to review those political judgments for their appropriateness). By focusing judicial review on the situations where a public choice failure might be most likely to occur, courts may nonetheless be able to at least correct some of the worst political abuses.
426. Id. at 174-75, 180-81, 184 (criticizing courts for ignoring the clear implications of politics for agency decisionmaking).
427. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring that, to have standing, the plaintiff must show a "concrete and particularized, and []actual or imminent... invasion of a legally protected interest").
428. See Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 61 (2004) (enunciating the APA requirement that the plaintiff suing be '"[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute'" (quoting 5 U.S.C. §702 (2000)));
429. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882-83 (1990) (requiring first, that the plaintiff identify the agency action that affects him and second, that the plaintiff show that he has "suffered legal wrong" because of the agency action).
430. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732 (1998) (discussing ripeness);
431. Bennett v. Spear, 520 U.S. 154, 178 (1997) (ruling that the lower court erred for dismissing a claim on the basis of finality).
432. See Lujan, 504 U.S. at 555.
433. See id. at 559-67, 571-78 (majority opinion).
434. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
435. Id.
436. Id. at 842-43.
437. See Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 57-58 (2004);
438. Massachusetts v. EPA, 127 S. Ct. 1438, 1446-47 (2007).
439. See SUWA, 542 U.S. at 71-72.
440. See Freeman & Vermeule, supra note 2 (manuscript at 2, 29).