The puzzling presumption of reviewability

Harvard Law Review

Volumn 127, Issue 5, 2014, Pages 1286-1340

  Bagley, Nicholas ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84896453505     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (458)

1. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
2. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
3. Council for Urological Interests v. Sebelius, 668 F.3d 704, 711 (D.C. Cir. 2011).
4. M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383, 1413 (2004).
5. Daniel B. Rodriguez, The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences, 45 Vand. L. Rev. 743, 751 (1992).
6. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
7. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984).
8. See Stephen G. Breyer et al., Administrative Law and Regulatory Policy 986 (5th ed. 2002) ("[C]ourts frequently interpret language that, on its face, seems explicitly to preclude review not to do so. Implicit preclusion is rare. ").
9. Jerry L. Mashaw et al., Administrative Law: The American Public Law System 908 (6th ed. 2009) (observing that, "given judicial skepticism of preclusion in any form, implicit preclusion is a limited category reserved for rather special, verging on unique, circumstances").
10. See Sackett v. EPA, 132 S. Ct. 1367 (2012).
11. Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
12. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
13. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
14. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
15. See, e.g., Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
16. See, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011).
17. See, e.g., AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).
18. 5 U.S.C. § 701(a) (2012). Also insulated from judicial review are agency actions "committed to agency discretion by law. " Because agency action is "committed to agency discretion by law" in only the rarest of circumstances.
19. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), hard preclusion questions usually center on whether a statute precludes review.
20. See, e.g., Morris v. Gressette, 432 U.S. 491, 501, 504-05 (1977).
21. See, e.g., Reno v. Catholic Soc. Servs., 509 U.S. 43, 63-64 (1993).
22. See, e.g., Johnson v. Robison, 415 U.S. 361, 373-74 (1974).
23. 387 U.S. 136 (1967).
24. 387 U.S. 136 (1967).
25. 387 U.S. 136 (1967).
26. 5 U.S.C. § 702 (2012).
27. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
28. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
29. 21 U.S.C. §§ 301-399d (2012).
30. See, e.g., Dunlop v. Bachowski, 421 U.S. 560, 566-68 (1975) (finding reviewable an agency's decision not to file suit to set aside a union election)
31. Johnson v. Robison, 415 U.S. 361, 373-74 (1974) (finding reviewable the constitutionality of a Veterans' Administration denial of pension benefits to a conscientious objector)
32. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (finding reviewable an agency's decision to authorize the use of federal funds for a highway project)
33. Tooahnippah v. Hickel, 397 U.S. 598, 605-07 (1970) (finding reviewable an Interior Department decision to disapprove a Native American's will)
34. Barlow v. Collins, 397 U.S. 159, 165-67 (1970) (finding reviewable an agency regulation connected with a cotton subsidy program)
35. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 156-57 (1970) (finding reviewable an agency decision to allow national banks to sell data processing services).
36. For an example of a pre-Abbott Labs finding of reviewability, see Harmon v. Brucker, 355 U.S. 579, 581-82 (1958) (per curiam), where the Court reviewed the Secretary of the Army's decision to give a less-thanhonorable discharge to two soldiers.
37. See United States v. Fausto, 484 U.S. 439, 443-44, 455 (1988) (holding that Congress precluded judicial review outside the auspices of the Civil Service Reform Act).
38. United States v. Erika, Inc., 456 U.S. 201, 206-08 (1982) (finding that Congress, in authorizing judicial review of certain Medicare Part A determinations, implicitly precluded review of Part B determinations)
39. Morris v. Gressette, 432 U.S. 491, 500-05 (1977) (refusing to allow a challenge to the Attorney General's failure to object to a change in voting procedures under the Voting Rights Act).
40. 467 U.S. 340 (1984).
41. 467 U.S. 340 (1984).
42. 467 U.S. 340 (1984).
43. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 156-57 (1970) (finding reviewable an agency decision to allow national banks to sell data processing services).
44. 476 U.S. 667 (1986).
45. See also Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 778-79, 791 (1985) (finding that a statute barring review of factual determinations of disability eligibility did not preclude review for procedural fairness).
46. See also Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 778-79, 791 (1985) (finding that a statute barring review of factual determinations of disability eligibility did not preclude review for procedural fairness).
47. 34 U.S. (9 Pet.) 8 (1835).
48. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
49. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
50. Quoting Nourse, 34 U.S. (9 Pet.) at 28-29).
51. See also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 44 (2000) (Thomas, J., dissenting) (quoting the same language from Nourse)
52. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424 (1995) (same).
53. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
54. United States v. Erika, Inc., 456 U.S. 201, 208 (1982).
55. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
56. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994) (finding that the Mine Act precluded preenforcement review of a mine-inspection regulation).
57. United States v. Fausto, 484 U.S. 439, 443-44, 455 (1988) (finding that the Civil Service Reform Act precluded judicial review of certain personnel actions).
58. See, e.g., Utah v. Evans, 536 U.S. 452, 463 (2002) (finding that a statute authorizing precensus review of the Census Bureau's statistical methodologies did not preclude post-census review)
59. INS v. St. Cyr, 533 U.S. 289, 298-99, 314 (2001) (finding no congressional intent to repeal a statutory provision authorizing federal jurisdiction of habeas review)
60. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 424 (1995) (same).
61. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63-64 (1993) (finding that a statute precluding district court review of an individual's immigration status did not preclude facial review of agency regulations)
62. McNary v. Haitian Refugee Ctr., 498 U.S. 479, 496 (1991) (finding that a statute barring review of an individual determination of eligibility for an amnesty program did not preclude review of the manner in which the program was implemented)
63. Traynor v. Turnage, 485 U.S. 535, 542, 545 (1988) (finding reviewable an agency regulation defining forms of alcoholism unrelated to psychiatric disorders as "willful misconduct").
64. See, e.g., Council for Urological Interests v. Sebelius, 668 F.3d 704, 708-11 (D.C. Cir. 2011) (finding reviewable a challenge to a Medicare regulation notwithstanding that the Medicare Act explicitly precluded federal question jurisdiction over all claims, including plaintiff's claims, that were not exhausted before the agency)
65. Sharkey v. Quarantillo, 541 F.3d 75, 85 (2d Cir. 2008) (reading a statute providing that "no court shall have jurisdiction to review. any judgment regarding the granting of relief under section. 1255 of this title" to nonetheless permit review of a decision revoking appellant's status as a lawful permanent resident under § 1255 (alterations in original) (quoting 8 U.S.C. § 1252(a)(2)(B) (2012) (internal quotation marks omitted)
66. Buchanan v. Apfel, 249 F.3d 485, 488-90 (6th Cir. 2001) (reviewing an agency decision notwithstanding a statute precluding review outside the statutorily prescribed channels)
67. COMSAT Corp. v. FCC, 114 F.3d 223, 226-27 (D.C. Cir. 1997) (finding reviewable an FCC fee increase notwithstanding a statute providing that "[i]ncreases. in fees made by amendments pursuant to this paragraph shall not be subject to judicial review, " at 227 (first alteration in original) (emphasis omitted) (quoting 47 U.S.C. § 159(b)(3) (2006) (internal quotation marks omitted)
68. Ry. Labor Execs. Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 661-63 (D.C. Cir. 1994) (en banc) (reviewing an agency decision notwithstanding a Supreme Court decision holding that the statutory scheme precluded review)
69. Int'l Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 807 (D.C. Cir. 1983) (finding that it "borders on the incredible" to believe that the Fair Labor Standards Act, in authorizing judicial review of the claims of both underpaid workers and the Secretary of Labor, implicitly precluded review of other claims)
70. Lancellotti v. Office of Pers. Mgmt., 704 F.2d 91, 96-98 (3d Cir. 1983) (reviewing what seemed to be a "question[] of disability and dependency arising under" § 8347(c) of the Civil Service Retirement Act notwithstanding language providing that "the decisions of [the relevant agency] concerning these matters are final and conclusive and are not subject to review, " at 96 (emphases omitted) (quoting 5 U.S.C. § 8347(c) (2012).
71. See, e.g., Int'l Ass'n of Fire Fighters, Local 188 v. Pub. Emp't Relations Bd., 245 P.3d 845, 850-51 (Cal. 2011)
72. Alaka'i Na Keiki, Inc. v. Matayoshi, 277 P.3d 988, 1005 n.38 (Haw. 2012)
73. Greer v. Ill. Hous. Dev. Auth., 524 N.E.2d 561, 577 (Ill. 1988)
74. Bowen v. Doyal, 253 So. 2d 200, 203 (La. 1971)
75. Minn. Pub. Interest Research Grp. v. Minn. Envtl. Quality Council, 237 N.W.2d 375, 379-80 (Minn. 1975).
76. Long Island Coll. Hosp. v. Catherwood, 241 N.E.2d 892, 896 n.3 (N.Y. 1968)
77. Pisano v. Shillinger, 835 P.2d 1136, 1139 (Wyo. 1992).
78. See also District of Columbia v. Sierra Club, 670 A.2d 354, 357-58 (D.C. 1996).
79. 132 S. Ct. 1367 (2012).
80. 132 S. Ct. 1367 (2012).
81. 33 U.S.C. §§ 1251-1387 (2012).
82. See Sackett v. U.S. EPA, 622 F.3d 1139, 1143 (9th Cir. 2010) ("Every circuit that has confronted this issue has held that the [Clean Water Act] impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court. "). For a discussion of the statutory language, see section III. B, pp. 1331-36.
83. See Sackett v. EPA, 132 S. Ct. 1367 (2012).
84. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1318 (1982).
85. Cf. Antonin Scalia, Essay, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 583 (1990) (arguing that canons that "have been long indulged. acquire a sort of prescriptive validity").
86. But cf. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 128 (2010) (arguing that historical pedigree alone is, for textualists, insufficient to legitimate substantive canons of construction).
87. See Jerry L. Mashaw, Creating the Administrative Constitution 24-25 (2012) (arguing that the nineteenth-century model of judicial review "contrasts sharply with contemporary visions of judicial review in which administrative action is presumptively reviewable and the adequacy of administrative reasons for action is perhaps the most prominent feature of judicial oversight of administrative legality, " at 25).
88. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
89. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
90. 2 U.S. (2 Dall.) 409 (1792).
91. 2 U.S. (2 Dall.) 409 (1792).
92. Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 84-85 (1903).
93. See also Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2248 (2011) [hereinafter Mashaw, Rethinking Judicial Review] ("The nineteenth century federal courts and federal administrative agencies were not in a partnership. They operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. ").
94. 58 U.S. (17 How.) 525 (1854).
95. 58 U.S. (17 How.) 525 (1854).
96. 58 U.S. (17 How.) 525 (1854).
97. See also Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2248 (2011) [hereinafter Mashaw, Rethinking Judicial Review] ("The nineteenth century federal courts and federal administrative agencies were not in a partnership. They operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. ").
98. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
99. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619-26 (1838).
100. 5 U.S.C. § 706(1) (2012).
101. See Carrick v. Lamar, 116 U.S. 423, 426 (1886) ("It is settled by many decisions of this court, that in matters which require judgment and consideration to be exercised by an executive officer of the government, or which are dependent upon his discretion, no rule for a mandamus to control his action will issue. It is only for ministerial acts, in the performance of which no exercise of judgment or discretion is required, that the rule will be granted. ").
102. See also Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2248 (2011) [hereinafter Mashaw, Rethinking Judicial Review] ("The nineteenth century federal courts and federal administrative agencies were not in a partnership. They operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. ").
103. See also United States ex rel. Redfield v. Windom, 137 U.S. 636, 644 (1891) (noting that "in the extreme caution with which this remedy is applied by the courts, there are cases when the writ will not be issued to compel the performance of even a purely ministerial act").
104. 37 U.S. (12 Pet.) 524 (1838).
105. 37 U.S. (12 Pet.) 524 (1838).
106. 37 U.S. (12 Pet.) 524 (1838).
107. See also Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2248 (2011) [hereinafter Mashaw, Rethinking Judicial Review] ("The nineteenth century federal courts and federal administrative agencies were not in a partnership. They operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. ").
108. 39 U.S. (14 Pet.) 497 (1840).
109. 39 U.S. (14 Pet.) 497 (1840).
110. 39 U.S. (14 Pet.) 497 (1840).
111. 39 U.S. (14 Pet.) 497 (1840).
112. United States v. Schurz, 102 U.S. 378, 397 (1880).
113. See, e.g., United States ex rel. Dunlap v. Black, 128 U.S. 40 (1888) (rejecting mandamus because the administrative officer exercised discretion)
114. Carrick v. Lamar, 116 U.S. 423 (1886) (same)
115. Sec'y v. McGarrahan, 76 U.S. (9 Wall.) 298 (1869) (same).
116. United States v. Comm'r, 72 U.S. (5 Wall.) 563 (1866) (same)
117. Comm'r of Patents v. Whiteley, 71 U.S. (4 Wall.) 522 (1866) (same).
118. United States ex rel. Goodrich v. Guthrie, 58 U.S. (17 How.) 284 (1854) (same).
119. United States ex rel. Tucker v. Seaman, 58 U.S. (17 How.) 225 (1854) (same)
120. Reeside v. Walker, 52 U.S. (11 How.) 272 (1850) (same)
121. Brashear v. Mason, 47 U.S. (6 How.) 92 (1848) (same). Mandamus relief against officers was also unavailable when the relief sought required independent action by the President. Land patents, for example, had to be signed by the President or a designated secretary. Mandamus therefore could not lie to compel the Secretary of the Interior to issue a land patent.
122. Sec'y v. McGarrahan, 76 U.S. (9 Wall.) 298 (1869) (same).
123. Gaines v. Thompson, 74 U.S. (7 Wall.) 347, 352-53 (1868) (holding that the doctrine that courts will not review discretionary acts "is as applicable to the writ of injunction as it is to the writ of mandamus, " at 352, and refusing to issue an injunction).
124. See also Litchfield v. Register & Receiver, 76 U.S. (9 Wall.) 575 (1869) (declining to issue injunction against a discretionary act)
125. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) (same). Injunctions against unlawful agency action became more common after Congress created federal question jurisdiction in 1875.
126. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
127. See Ann Woolhandler, Judicial Deference to Administrative Action-A Revisionist History, 43 Admin. L. Rev. 197, 204 (1991).
128. See also Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2248 (2011) [hereinafter Mashaw, Rethinking Judicial Review] ("The nineteenth century federal courts and federal administrative agencies were not in a partnership. They operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. ").
129. See Ann Woolhandler, Judicial Deference to Administrative Action-A Revisionist History, 43 Admin. L. Rev. 197, 204 (1991).
130. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
131. See Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 16-17 (1983) (explaining that "[j]udicial control of noncoercive government conduct. could have been entirely excluded., and where it was available it was of a limited nature, " at 16, and further, that "[s]o long as public administration made few demands on private persons (apart from taxes and custom duties) no threat was posed to the 'sacred' rights of liberty and property, " at 17).
132. See, e.g., Morehouse v. Phelps, 62 U.S. (21 How.) 294, 302-03 (1858) (holding that the "courts of justice" had no "jurisdiction to interfere" in the political decision to award government property).
133. See Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 16-17 (1983) (explaining that "[j]udicial control of noncoercive government conduct. could have been entirely excluded., and where it was available it was of a limited nature, " at 16, and further, that "[s]o long as public administration made few demands on private persons (apart from taxes and custom duties) no threat was posed to the 'sacred' rights of liberty and property, " at 17).
134. Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 84-85 (1903).
135. See Ann Woolhandler, Judicial Deference to Administrative Action-A Revisionist History, 43 Admin. L. Rev. 197, 204 (1991).
136. See also Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2248 (2011) [hereinafter Mashaw, Rethinking Judicial Review] ("The nineteenth century federal courts and federal administrative agencies were not in a partnership. They operated in separate spheres. Courts either decided questions de novo on records made in court, or they effectively declined jurisdiction. ").
137. See Ann Woolhandler, Judicial Deference to Administrative Action-A Revisionist History, 43 Admin. L. Rev. 197, 204 (1991).
138. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636, 1689 (2007).
139. See, e.g., Quinby v. Conlan, 104 U.S. 420, 426 (1881) ("It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous officers of the Land Department, on mere questions of fact presented for their determination. ")
140. Shepley v. Cowan, 91 U.S. 330, 340 (1875) (stating that no judicial relief is available "for mere errors of judgment upon the weight of evidence in a contested case before [Land Department officers]")
141. Bartlett v. Kane, 57 U.S. (16 How.) 263, 272 (1853) (noting "general principle, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter").
142. United States v. Morris, 23 U.S. (10 Wheat.) 246, 284-85 (1825) ("It is not competent for any other tribunal, collaterally, to call in question the competency of the evidence, or its sufficiency, to procure the remission. The Secretary of the Treasury is, by the law, made the exclusive judge of these facts, and there is no appeal from his decision. It is a subject submitted to his sound discretion. ").
143. Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers 84-85 (1903).
144. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636, 1689 (2007).
145. Frederic P. Lee, The Origins of Judicial Control of Federal Executive Action, 36 Geo. L.J. 287, 296 (1948).
146. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636, 1689 (2007).
147. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
148. Quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (internal quotation marks omitted).
149. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
150. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986).
151. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
152. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
153. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)
154. Ch. 20, 1 Stat. 73.
155. See Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 456 (1989) ("[T]he mandamus clause is best read as simply giving the Court remedial authority-for both original and appellate jurisdiction cases-after jurisdiction (whether original or appellate) has been independently established. ").
156. United States v. Nourse, 31 U.S. (6 Pet.) 470, 475-97 (1832).
157. United States v. Nourse (Nourse II), 34 U.S. (9 Pet.) 8, 28 (1835).
158. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)
159. United States v. Nourse (Nourse II), 34 U.S. (9 Pet.) 8, 28 (1835).
160. United States v. Nourse (Nourse II), 34 U.S. (9 Pet.) 8, 28 (1835).
161. See also An Act Providing for the Better Organization of the Treasury Department, ch. 107, § 4, 3 Stat. 592, 595 (1820) (authorizing "any person [who] should consider himself aggrieved by any warrant issued under this act" to "prefer a bill of complaint to any district judge of the United States").
162. United States v. Nourse (Nourse II), 34 U.S. (9 Pet.) 8, 28 (1835).
163. See, e.g., Sackett v. EPA, 132 S. Ct. 1367, 1373 (2012) ("The APA, we have said, creates a 'presumption favoring judicial review of administrative action'. " (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984).
164. Louis L. Jaffe, Judicial Control of Administrative Action 372 (1965) ("The Administrative Procedure Act has. the merit of codifying the presumption of reviewability. ").
165. See, e.g., 1 U.S.C. § 109 (2012) (providing that the "repeal" of a criminal statute "shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide").
166. See, e.g., Dorsey v. United States, 132 S. Ct. 2321, 2331 (2012).
167. For an especially strong articulation of the view that one legislature can properly bind a future legislature, see Eric A. Posner & Adrian Vermeule, Essay, Legislative Entrenchment: A Reappraisal, 111 Yale L.J. 1665 (2002).
168. 5 U.S.C. § 702 (2012).
169. 5 U.S.C. § 702 (2012).
170. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
171. Daniel B. Rodriguez, The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences, 45 Vand. L. Rev. 743, 751 (1992).
172. 5 U.S.C. § 701(a) (emphasis added).
173. Administrative Procedure Act, Pub. L. No. 79-404, § 10(a), (c), 60 Stat. 237, 243 (1946) (codified as amended at 5 U.S.C. §§ 701-702, 704).
174. See also S. Rep. No. 79-752, at 26 (1945) ("Section 10 on judicial review does not apply in any situation so far as there are involved matters with respect to which statutes preclude judicial review. " (emphasis omitted).
175. This was not a controversial position in the aftermath of the APA's enactment: That the introductory clause of section 10 modifies each of the ensuing subsections is obvious. Therefore, according to the clear and unambiguous language, agency action is left unreviewable to the extent that statutes preclude review or to the extent that agency action is by law committed to agency discretion. Since these two reasons are the only reasons why agency action could be unreviewable before the APA was enacted, the law of reviewability remains unchanged. Kenneth Culp Davis, Unreviewable Administrative Action, 15 F.R.D. 411, 427 (1954).
176. See Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 395 (2005) (observing that the rule of lenity "kick[s] in only after the Court's primary interpretive tools. have failed to identify a single best answer").
177. But cf. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 128 (2010) (arguing that historical pedigree alone is, for textualists, insufficient to legitimate substantive canons of construction).
178. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) (splitting 5-4).
179. See, e.g., Muscarello v. United States, 524 U.S. 125 (1998) (splitting 5-4).
180. See, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007) (splitting 5-4).
181. Tom C. Clark, U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 94 n.4 (1947) (quoting earlier version of the bill) (internal quotation marks omitted).
182. Tom C. Clark, U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 94 n.4 (1947) (quoting earlier version of the bill) (internal quotation marks omitted).
183. H.R. Rep. No. 79-1980, at 41 (1946).
184. S. Rep. No. 79-752, at 26 (1945).
185. H.R. Rep. No. 79-1980, at 41.
186. See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670-71 (1986).
187. S. Rep. No. 79-752, at 26.
188. Letter from Tom C. Clark, Att'y Gen., to Senator Pat McCarran, Chairman, Senate Judiciary Comm. (Oct. 19, 1945)
189. Reprinted in S. Rep. No. 79-752 app. B, at 37, 43-44 (emphasis added).
190. Tom C. Clark, U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 94 n.4 (1947) (quoting earlier version of the bill) (internal quotation marks omitted).
191. Letter from Tom C. Clark, Att'y Gen., to Senator Pat McCarran, Chairman, Senate Judiciary Comm. (Oct. 19, 1945)
192. 320 U.S. 297 (1943).
193. 320 U.S. 297 (1943).
194. Cf. Ry. Labor Execs.' Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 674 (D.C. Cir. 1994) (en banc) (Williams, J., dissenting) ("Any idea that the APA completely sweeps Switchmen's aside is quite inconsistent with the language of that decision and of the APA, with the history of the APA, and with post-APA decisions. ").
195. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) (splitting 5-4).
196. See George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1680 (1996).
197. See George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1680 (1996).
198. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
199. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) (splitting 5-4).
200. See Stark v. Wickard, 321 U.S. 288, 314 (1944) (Frankfurter, J., dissenting) ("In the numerous cases either granting or denying judicial review, grant or denial was reached not by applying some 'natural law' of judicial review nor on the basis of some general body of doctrines for construing the diverse provisions of the great variety of federal regulatory statutes. Judicial review when recognized-its scope and its incidence-was derived from the materials furnished by the particular statute in regard to which the opportunity for judicial review was asserted. "). Professor Louis Jaffe argued in the mid-1960s that he could discern a pre-APA trend in the case law favoring the presumption of reviewability.
201. Louis L. Jaffe, Judicial Control of Administrative Action 372 (1965) ("The Administrative Procedure Act has. the merit of codifying the presumption of reviewability. ").
202. For Jaffe, the Supreme Court's 1902 decision in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902), marked "a sudden and dramatic turn" in the law of reviewability.
203. Louis L. Jaffe, Judicial Control of Administrative Action 372 (1965) ("The Administrative Procedure Act has. the merit of codifying the presumption of reviewability. ").
204. See, e.g., E.F. Albertsworth, Judicial Review of Administrative Action by the Federal Supreme Court, 35 Harv. L. Rev. 127, 127-28, 147-48 (1921) (finding "inconsistent results, " at 128, when it comes to reviewability at the Supreme Court, including in McAnnulty, and arguing "that what the Court is really doing, consciously or unconsciously, and what it should do, is balancing the various individual and social interests involved, " at 128).
205. Frank J. Goodnow, Private Rights and Administrative Discretion, 2 A.B.A. J. 789, 802-03 (1916) (noting that "[a]lmost the only instances in which the Supreme Court has not regarded as final the action of [federal] administrative officers. are where they have exceeded their jurisdiction, " at 802, and citing McAnnulty as an example). In any event, Jaffe himself acknowledged that Switchmen's Union and other cases ran counter to the nascent presumption he identified.
206. Louis L. Jaffe, Judicial Control of Administrative Action 372 (1965) ("The Administrative Procedure Act has. the merit of codifying the presumption of reviewability. ").
207. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) (splitting 5-4).
208. Att'y Gen.'s Comm. on Admin. Procedure, Administrative Procedure in Government Agencies, S. Doc. No. 77-8, at 84 (1st Sess. 1941).
209. Commentators have from time to time suggested that Congress has acquiesced in the Supreme Court's view that the APA codifies the presumption of reviewability.
210. See, e.g., Sandra Day O'Connor, Reflections on Preclusion of Judicial Review in England and the United States, 27 Wm. & Mary L. Rev. 643, 652 (1986) ("[O]ne is left with a sense that to speak of congressional acquiescence in the presumption in favor of judicial review is far from a fiction. "). Because of the difficulties of ascribing meaning to congressional silence, the Supreme Court has insisted on "overwhelming evidence of acquiescence" before it will "replace the plain text and original understanding of a statute. "
211. Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 170 n.5 (2001). As section II. E will discuss in detail, no "overwhelming evidence" suggests that Congress has considered the Supreme Court's elaboration of the presumption of reviewability and, through inaction, blessed it.
212. See generally Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1378-79 (1953).
213. See generally Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1378-79 (1953).
214. See Stephen G. Breyer et al., Administrative Law and Regulatory Policy 986 (5th ed. 2002) ("[C]ourts frequently interpret language that, on its face, seems explicitly to preclude review not to do so. Implicit preclusion is rare. ").
215. Thomas W. Merrill, Delegation and Judicial Review, 33 Harv. J.L. & Pub. Pol'y 73, 73 (2010) [hereinafter Merrill, Delegation] (noting that the Supreme Court has at times suggested that "[b]road delegations of power to executive actors are constitutionally permissible. in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making").
216. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) ("[W]e repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'"
217. Quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
218. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201, 201 (observing that the nondelegation doctrine "refers to Congress's ability to hand over to a given agency official the authority to make policy decisions").
219. The Supreme Court has only twice invalidated congressional delegations of authority to federal agencies under the nondelegation doctrine, both instances having occurred in 1935. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (invalidating the National Industrial Recovery Act (NIRA), ch. 90, 48 Stat. 195 (1933).
220. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (holding section 9(c) of the NIRA to be unconstitutional).
221. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) ("[W]e repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'"
222. See generally Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000).
223. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
224. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
225. 531 U.S. 457.
226. 531 U.S. 457.
227. 531 U.S. 457.
228. Evan J. Criddle, When Delegation Begets Domination: Due Process of Administrative Lawmaking, 46 Ga. L. Rev. 117, 121 (2011). The presumption of reviewability might plausibly advance a nondelegation doctrine revised along the lines that Criddle suggests. In a related vein, Merrill has constructed an ingenious argument, rooted in the nondelegation doctrine, that Congress cannot preclude judicial review that tests whether executive action is ultra vires.
229. Evan J. Criddle, When Delegation Begets Domination: Due Process of Administrative Lawmaking, 46 Ga. L. Rev. 117, 121 (2011). The presumption of reviewability might plausibly advance a nondelegation doctrine revised along the lines that Criddle suggests. In a related vein, Merrill has constructed an ingenious argument, rooted in the nondelegation doctrine, that Congress cannot preclude judicial review that tests whether executive action is ultra vires.
230. Thomas W. Merrill, Delegation and Judicial Review, 33 Harv. J.L. & Pub. Pol'y 73, 73 (2010) [hereinafter Merrill, Delegation] (noting that the Supreme Court has at times suggested that "[b]road delegations of power to executive actors are constitutionally permissible. in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making").
231. Stern v. Marshall, 131 S. Ct. 2594, 2609 (2011) (quoting Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1856).
232. 458 U.S. 50 (1982).
233. 131 S. Ct. 2594.
234. 131 S. Ct. 2594.
235. 131 S. Ct. 2594.
236. Northern Pipeline, 458 U.S. at 86 n.39 (plurality opinion).
237. See Crowell v. Benson, 285 U.S. 22, 62 (1932) (saving an otherwise-unconstitutional allocation of adjudicatory responsibilities by providing for de novo review of jurisdictional facts).
238. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 922 (1988) ("[T]he availability or necessity of appellate review has not been an important theme in legislative courts jurisprudence. ").
239. See Northern Pipeline, 458 U.S. at 67-68 (plurality opinion) ("The understanding of [the public-rights] cases is that the Framers expected that Congress would be free to commit such matters completely to nonjudicial executive determination. " at 68.).
240. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 632 (1984). Strauss is careful to emphasize that the Due Process Clause may sometimes require judicial oversight of agency action, at 632-33 & 632 n.254. I consider the implications of the Due Process Clause for the presumption of reviewability below.
241. See, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2613 (2011) (characterizing a public right as one that "is integrally related to particular federal government action")
242. See, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2613 (2011) (characterizing a public right as one that "is integrally related to particular federal government action")
243. See Crowell v. Benson, 285 U.S. 22, 62 (1932) (saving an otherwise-unconstitutional allocation of adjudicatory responsibilities by providing for de novo review of jurisdictional facts).
244. See generally Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1378-79 (1953).
245. See also Zadvydas v. Davis, 533 U.S. 678, 692 (2001) ("This Court has suggested. that the Constitution may well preclude granting 'an administrative body the unreviewable authority to make determinations implicating fundamental rights.'" (quoting Superintendent v. Hill, 472 U.S. 445, 450 (1985).
246. Laurence Gene Sager, The Supreme Court, 1980 Term-Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 23-24 (1981) (arguing that the Constitution requires either appellate or original jurisdiction of constitutional claims).
247. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986) (quoting Weinberger v. Salfi, 422 U.S. 749, 762 (1975).
248. Quoting Weinberger v. Salfi, 422 U.S. 749, 762 (1975).
249. 415 U.S. 361 (1974).
250. 415 U.S. 361 (1974).
251. See also INS v. St. Cyr, 533 U.S. 289, 298-300 (2001) (invoking the "strong presumption in favor of judicial review of administrative action, " at 298, and the possible constitutional problem posed by denying habeas review in the course of finding that an immigrant subject to a deportation order could seek habeas corpus notwithstanding a complete congressional bar).
252. In 1965, Professor Raoul Berger advanced the argument that the Constitution requires judicial review of agency arbitrariness.
253. See Raoul Berger, Administrative Arbitrariness and Judicial Review, 65 Colum. L. Rev. 55, 88-93 (1965). The argument immediately came in for strenuous criticism.
254. See Kenneth Culp Davis, Administrative Law Treatise § 28.16, at 17 (Supp. 1965) ("No court has ever held that a federal statute cutting off all judicial review of administrative arbitrariness or abuse of discretion is unconstitutional. "). And the claim finds little to recommend it in either historical or modern practice.
255. See Heckler v. Chaney, 470 U.S. 821, 837-38 (1985) (refusing to review discretionary determination not to bring enforcement action); section II. A, pp. 1294-303 (historical practice).
256. See, e.g., Traynor v. Turnage, 485 U.S. 535, 542-45 (1988) (applying the presumption to allow resolution of a Rehabilitation Act claim)
257. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (allowing a civic group to challenge an agency's authorization to use federal funds to construct a highway through a public park)
258. Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 156-57 (1970) (allowing a data-processing organization to challenge a regulation allowing national banks to provide data-processing services)
259. COMSAT Corp. v. FCC, 114 F.3d 223, 226-27 (D.C. Cir. 1997) (allowing a telecommunications corporation to challenge imposition of a regulatory fee).
260. See, e.g., South Carolina v. Regan, 465 U.S. 367, 399-400 (1984) (O'Connor, J., concurring in the judgment) (construing a statutory bar of review in "any court" to exclude the Supreme Court in an effort to allay Article III concerns (internal quotation marks omitted).
261. 486 U.S. 592 (1988).
262. 486 U.S. 592 (1988).
263. 486 U.S. 592 (1988).
264. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 922 (1988) ("[T]he availability or necessity of appellate review has not been an important theme in legislative courts jurisprudence. ").
265. See, e.g., NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 133 (1987).
266. See Stern v. Marshall, 131 S. Ct. 2594, 2612 (2011).
267. See Stern v. Marshall, 131 S. Ct. 2594, 2612 (2011).
268. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 922 (1988) ("[T]he availability or necessity of appellate review has not been an important theme in legislative courts jurisprudence. ").
269. See Gray Panthers v. Schweiker, 652 F.2d 146, 150 n.9 (D.C. Cir. 1980) ("[T]he existence of a right to vindicate one's rights in court is a relevant consideration in deciding whether a given procedure, as a whole, satisfies due process. ").
270. Cf. Phillips v. Comm'r, 283 U.S. 589, 595 (1931) ("Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained. ").
271. See, e.g., Sharkey v. Quarantillo, 541 F.3d 75, 86-87 (2d Cir. 2008) (allowing review of a decision under a statute that precludes review in part because "heightened procedural protections are likely required by the Due Process Clause when an [alien's] resident status is threatened").
272. Petitioners' Brief on the Merits at 14, Sackett v. EPA, 132 S. Ct. 1367 (2012) (No. 10-1062) (opening summary of argument with the contention that "[t]he compliance order violates the Sacketts' due process rights").
273. See Sackett v. EPA, 132 S. Ct. 1367 (2012).
274. Compare Londoner v. Denver, 210 U.S. 373, 385-86 (1908) (finding due process right to a hearing on an agency's individualized assessment of a tax on particular property owners), with Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915) (rejecting due process right to a hearing prior to a legislative readjustment of property taxes).
275. See Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 668 (1986).
276. Abbott Labs. v. Gardner, 387 U.S. 136, 138 (1967).
277. 668 F.3d 704 (D.C. Cir. 2011).
278. 668 F.3d 704 (D.C. Cir. 2011).
279. 668 F.3d 704 (D.C. Cir. 2011).
280. Council for Urological Interests v. Sebelius, 668 F.3d 704, 711 (D.C. Cir. 2011).
281. 447 U.S. 773 (1980).
282. 447 U.S. 773 (1980).
283. 447 U.S. 773 (1980).
284. Jerry L. Mashaw et al., Administrative Law: The American Public Law System 908 (6th ed. 2009) (observing that, "given judicial skepticism of preclusion in any form, implicit preclusion is a limited category reserved for rather special, verging on unique, circumstances").
285. 424 U.S. 319 (1976).
286. 424 U.S. 319 (1976).
287. See John F. Manning, Essay, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 413 (2010) ("Although the Court has never definitively identified the constitutional value served by this presumption [of reviewability], the source seems to lie in some background due process conception of the imperative to guard against unauthorized or arbitrary governmental action. ").
288. See The Federalist No. 51, at 317-18 (James Madison) (Clinton Rossiter ed., 2003) (endorsing an "interior structure of the government" that would allow "its several constituent parts., by their mutual relations, [to] be the means of keeping each other in their proper places").
289. Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653, 655 (1985) (noting the "awkward constitutional position of the administrative agency").
290. See Stephen G. Breyer et al., Administrative Law and Regulatory Policy 986 (5th ed. 2002) ("[C]ourts frequently interpret language that, on its face, seems explicitly to preclude review not to do so. Implicit preclusion is rare. ").
291. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958) (instructing courts to "assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably").
292. See Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1230 (2013) (arguing that "background principles. are best understood as resting on conventions"-regular patterns of behavior that are adhered to out of a sense of obligation-"that courts may recognize when interpreting duly enacted statutes, but may not directly enforce as a legal matter in order to invalidate statutes that are clearly contrary").
293. Louis L. Jaffe, Judicial Control of Administrative Action 372 (1965) ("The Administrative Procedure Act has. the merit of codifying the presumption of reviewability. ").
294. See Lane v. Pena, 518 U.S. 187, 192 (1996). Although § 702 of the APA serves as a general waiver of immunity, that provision applies only where Congress has not otherwise precluded review.
295. See Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1154 (2013) ("[T]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing. " (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 489 (1982) (internal quotation marks omitted).
296. Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986) ("The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. ").
297. United States v. Reynolds, 345 U.S. 1 (1953) (articulating state secrets privilege).
298. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 598 (1992) ("[S]uper-strong clear statement rules. are almost as countermajoritarian as now discredited Lochner-style judicial review. ").
299. Frederick Schauer, Ashwander Revisited, 1995 Sup. Ct. Rev. 71, 74 ("[I]t is by no means clear that a strained interpretation of a federal statute that avoids a constitutional question is any less a judicial intrusion than the judicial invalidation on constitutional grounds of a less strained interpretation of the same statute. ").
300. Richard A. Posner, Statutory Interpretation-In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 816 (1983).
301. See Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856, 860 (2007).
302. Reading Vt. Yankee Nuclear Power Corp. v. Nat'l Resources Defense Council, Inc., 435 U.S. 519 (1978), "to forbid imposition of any administrative procedures not firmly grounded in some source of positive statutory, regulatory, or constitutional law".
303. John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 140, 161 (1998) (arguing that administrative common law dishonors "the supremacy of legislation, ").
304. See John F. Manning, Essay, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 413 (2010) ("Although the Court has never definitively identified the constitutional value served by this presumption [of reviewability], the source seems to lie in some background due process conception of the imperative to guard against unauthorized or arbitrary governmental action. ").
305. See, e.g., Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 Wm. & Mary L. Rev. 753 (2013) (exploring the view that the canons of statutory construction, which are widely accepted as legitimate exercises of interpretive authority, are themselves a form of federal common law).
306. See Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 Yale L.J. 2, 4 (2008) (arguing that "courts often can, do, and should craft doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies").
307. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 Tex. L. Rev. 1549, 1552 (2000) (arguing that the avoidance canon "makes it harder-but still not impossible-for Congress to write statutes that intrude into areas of constitutional sensitivity").
308. See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1776 (2007) (noting "standard efforts of law professors to justify administrative procedures, " including judge-made procedures, "in terms of the values they serve and the goods they deliver").
309. Gillian E. Metzger, Annual Review of Administrative Law-Foreword, Embracing Administrative Common Law, 80 Geo. Wash. L. Rev. 1293 (2012).
310. James Q. Wilson, Bureaucracy 290 (1989).
311. See Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984, 985 ("[W]e still know little about what is perhaps the central question in [administrative law]: How does judicial review actually affect agency decisionmaking?").
312. See Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95, 97-114, 149 (1974) (cataloging how "the architecture of the legal system tends to confer interlocking advantages on overlapping groups whom we have called the 'haves,'" at 149).
313. See Mancur Olson, The Logic of Collective Action (1971) (describing theory of group organization).
314. George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3 (1971) (applying Olson's theory to regulatory legislation).
315. See Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 276 (John E. Chubb & Paul E. Peterson eds., 1989) (arguing that interest-group opponents of regulatory legislation "will favor an active, easily triggered role for the courts in reviewing agency decisions").
316. Jerry L. Mashaw et al., Administrative Law: The American Public Law System 908 (6th ed. 2009) (observing that, "given judicial skepticism of preclusion in any form, implicit preclusion is a limited category reserved for rather special, verging on unique, circumstances").
317. Jerry L. Mashaw et al., Administrative Law: The American Public Law System 908 (6th ed. 2009) (observing that, "given judicial skepticism of preclusion in any form, implicit preclusion is a limited category reserved for rather special, verging on unique, circumstances").
318. For an account that generalizes insights from the case studies, see Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1412-20 (1992).
319. See Jerry L. Mashaw, Bureaucratic Justice 185-90 (1983).
320. See R. Shep Melnick, Regulation and the Courts (1983).
321. See Richard J. Pierce, Jr., The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 Admin. L. Rev. 7 (1991).
322. See Jerry L. Mashaw & David L. Harfst, The Struggle for Auto Safety 167-71 (1990).
323. See Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559 (2007).
324. Neal Kumar Katyal, Essay, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).
325. Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688 (2011) (book review).
326. for a classic exposition of the view that the constitutional scheme does not require judges to superintend the discretionary judgments of the executive branch, see J. Skelly Wright, Judicial Review and the Equal Protection Clause, 15 Harv. C.R.-C.L. L. Rev. 1, 4-8 (1980).
327. See Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559 (2007).
328. See David Fontana, Response, Executive Branch Legalisms, 126 Harv. L. Rev. F. 21, 21 (2012), http://www.harvardlawreview.org/media/pdf/forvol126_fontana.pdf, archived at http:// perma.cc/CEW5-MYPK.
329. Neal Kumar Katyal, Essay, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).
330. Peter L. Strauss, Legislative Theory and the Rule of Law: Some Comments on Rubin, 89 Colum. L. Rev. 427, 442 (1989) ("Thousands of government attorneys spend much of their time demonstrating in internal memoranda, and when relevant in opinions, rulemakings, and judicial briefs, the bases on which proposed official action can be thought authorized (or not) by governing statutes. ").
331. Neal Kumar Katyal, Essay, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 Yale L.J. 2314 (2006).
332. See generally Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 (2012) (discussing the challenges of coordinating the activities of disparate agencies).
333. Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688 (2011) (book review).
334. Quoting Jack Goldsmith, The Terror Presidency 37 (2007).
335. Julian Davis Mortenson, Law Matters, Even to the Executive, 112 Mich. L. Rev. (forthcoming 2014) (book review) (exploring how a "culture of legality" constrains executive discretion).
336. See Raichle v. Fed. Reserve Bank, 34 F.2d 910, 915 (2d Cir. 1929) ("It would be an unthinkable burden upon any banking system if its open market sales and discount rates were to be subject to judicial review. ").
337. David Zaring, Administration by Treasury, 95 Minn. L. Rev. 187, 191, 199 (2010) (noting that "Treasury's independence from judicial review. stretches back to the earliest days of the republic, " at 191, and that "Treasury, at least in comparison with other agencies, is infrequently subject to judicial review, " at 199).
338. See Schweiker v. McClure, 456 U.S. 188, 189-90 (1982).
339. United States v. Erika, Inc., 456 U.S. 201, 209 (1982) (quoting 118 Cong. Rec. 33,992 (1972) (internal quotation marks omitted).
340. See Social Security Amendments of 1965, Pub. L. No. 89-97, sec. 102, § 1869(b), 79 Stat. 286, 330 (codified as amended at 42 U.S.C. § 1395ff (2006 & Supp. V 2011)
341. United States v. Erika, Inc., 456 U.S. 201, 208 (1982).
342. Eleanor D. Kinney, The Medicare Appeals System for Coverage and Payment Disputes: Achieving Fairness in a Time of Constraint, 1 Admin. L.J. 1, 85-86 (1987) (detailing the statutory scheme).
343. Eleanor D. Kinney, The Medicare Appeals System for Coverage and Payment Disputes: Achieving Fairness in a Time of Constraint, 1 Admin. L.J. 1, 85-86 (1987) (detailing the statutory scheme).
344. Medicare Appeals Provisions: Hearing on S. 1158 Before the Subcomm. on Health of the S. Comm. on Fin., 99th Cong. (1985)
345. Health Financing: Hearings on H.R. 2293, H.R. 2864, H.R. 2342, H.R. 2807, and H.R. 2703 Before the Subcomm. on Health and the Env't of the H. Comm. on Energy & Commerce, 99th Cong. (1985).
346. Eleanor D. Kinney, The Medicare Appeals System for Coverage and Payment Disputes: Achieving Fairness in a Time of Constraint, 1 Admin. L.J. 1, 85-86 (1987) (detailing the statutory scheme).
347. Eleanor D. Kinney, The Medicare Appeals System for Coverage and Payment Disputes: Achieving Fairness in a Time of Constraint, 1 Admin. L.J. 1, 85-86 (1987) (detailing the statutory scheme).
348. See Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-509, § 9341, 100 Stat. 1874, 2037-38 (codified at 42 U.S.C. § 1395ff).
349. See also H.R. Rep. No. 99-727, at 95-96 (1986)
350. 42 U.S.C. § 1395oo(f) (2006) (authorizing review of claims channeled through an administrative review process that, under § 1395oo(a)(2), is available only if the amount in controversy exceeds $10,000).
351. 42 U.S.C. § 1395oo(f) (2006) (authorizing review of claims channeled through an administrative review process that, under § 1395oo(a)(2), is available only if the amount in controversy exceeds $10,000).
352. 42 U.S.C. § 1395ww(d)(7) (2006 & Supp. V 2011)
353. 42 U.S.C. § 1395ww(d)(7) (2006 & Supp. V 2011)
354. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 3403, § 1899A(e)(5), 124 Stat. 119, 500 (2010) (codified at 42 U.S.C. § 1395kkk(e)(5) (2006 & Supp. V 2011).
355. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 3403, § 1899A(e)(5), 124 Stat. 119, 500 (2010) (codified at 42 U.S.C. § 1395kkk(e)(5) (2006 & Supp. V 2011).
356. Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000).
357. Jerry L. Mashaw et al., Administrative Law: The American Public Law System 908 (6th ed. 2009) (observing that, "given judicial skepticism of preclusion in any form, implicit preclusion is a limited category reserved for rather special, verging on unique, circumstances").
358. See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) ("It is presumable that Congress legislates with knowledge of our basic rules of statutory construction, [including] our well-settled presumption favoring interpretation of statutes that allow judicial review of administrative action. ").
359. Richard A. Posner, Statutory Interpretation-In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 816 (1983).
360. See Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming 2014) [hereinafter Bressman & Gluck, Part II].
361. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
362. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
363. See Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. (forthcoming 2014) [hereinafter Bressman & Gluck, Part II].
364. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
365. See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 581 (2002) ("The Senate Judiciary Committee is likely to be an atypical committee; it is staffed primarily by lawyers and is far more likely to address legalistic or judicially focused issues. ").
366. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
367. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
368. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
369. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
370. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
371. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 940-49 (2013) [hereinafter Gluck & Bressman, Part I].
372. In 1980, the presumption made a brief appearance in two committee reports on the same bill; both used near-identical language to express the committees' views that judicial review of a particular agency action should not be permitted, the presumption notwithstanding.
373. See H.R. Rep. No. 96-1411, at 10 (1980) (Conf. Rep.), reprinted in 1980 U.S.C.C.A.N. 3972, 3975-76.
374. S. Rep. No. 96-874, at 20 (1980), reprinted in 1980 U.S.C.C.A.N. 3950, 3966-67. In addition, a House Report in 1988, discussed in greater detail below, expressed its disapproval of the practice of presuming judicial review of disability claims for veterans.
375. See H.R. Rep. No. 100-963, at 21-22 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5803-04. For its part, the Congressional Record is nearly silent about the presumption.
376. But see 140 Cong. Rec. 11,336-37 (1994) (statement of Sen. Arlen Specter).
377. 140 Cong. Rec. 3533-34 (1994) (statement of Sen. Arlen Specter)
378. 122 Cong. Rec. 22,014 (1976) (statement of Sen. Roman Hruska).
379. See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 581 (2002) ("The Senate Judiciary Committee is likely to be an atypical committee; it is staffed primarily by lawyers and is far more likely to address legalistic or judicially focused issues. ").
380. See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 581 (2002) ("The Senate Judiciary Committee is likely to be an atypical committee; it is staffed primarily by lawyers and is far more likely to address legalistic or judicially focused issues. ").
381. For an account that generalizes insights from the case studies, see Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1412-20 (1992).
382. See Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Yale L.J. 1032, 1079-80 (2011).
383. See Gwendolyn McKee, Judicial Review of Agency Guidance Documents: Rethinking the Finality Doctrine, 60 Admin. L. Rev. 371, 372 (2008).
384. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 946-53 (2011) [hereinafter Merrill, Article III] (similar).
385. See, e.g., Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 114-20 (2005).
386. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001) ("[P]rivate rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. " (citations omitted). The Court has expressed similar concerns in connection with 42 U.S.C. § 1983 and Bivens actions.
387. See Schweiker v. Chilicky, 487 U.S. 412 (1988) (regarding Bivens actions).
388. Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1 (1981) (regarding § 1983).
389. Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1 (1981) (regarding § 1983).
390. See Sackett v. EPA, 132 S. Ct. 1367, 1371-74 (2012).
391. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984).
392. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636, 1689 (2007).
393. See also Robert L. Rabin, Preclusion of Judicial Review in the Processing of Claims for Veterans' Benefits: A Preliminary Analysis, 27 Stan. L. Rev. 905 (1975) (arguing that claims for veterans' benefits ought to be subjected to judicial review).
394. 38 U.S.C. § 211(a) (1958) (repealed as amended 1991).
395. See Wellman v. Whittier, 259 F.2d 163 (D.C. Cir. 1958).
396. 38 U.S.C. § 211(a) (1970) (providing that "the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration. shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise").
397. Gott v. Walters, 756 F.2d 902, 916 (D.C. Cir. 1985); (describing justifications for the disability scheme).
398. Jonathan Goldstein, Note, New Veterans Legislation Opens the Door to Judicial Review. Slowly!, 67 Wash. U. L.Q. 889, 891 (1989) (same).
399. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636, 1689 (2007).
400. See, e.g., Traynor v. Turnage, 485 U.S. 535, 545 (1988) (allowing veterans to challenge VA decisions that allegedly contravene the Rehabilitation Act).
401. Wayne State Univ. v. Cleland, 590 F.2d 627, 631-32 (6th Cir. 1978) (allowing review of VA regulations pertaining to veterans' benefits).
402. Gary Lawson, Federal Administrative Law 959 (6th ed. 2013).
403. See Veterans' Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988).
404. H.R. Rep. No. 100-963, at 21-22 (1988).
405. H.R. Rep. No. 100-963, at 21-22 (1988).
406. Charles Cragin, Bd. of Veterans' Appeals, Report of the Chairman for Fiscal Year 1995, at 5 (1996), archived at http://perma.cc/X3V4-Z6RM.
407. Charles Cragin, Bd. of Veterans' Appeals, Report of the Chairman for Fiscal Year 1995, at 5 (1996), archived at http://perma.cc/X3V4-Z6RM.
408. See, e.g., U.S. Gov't Accountability Office, GAO-13-89, Veterans' Disability Benefits: Timely Processing Remains a Daunting Challenge 15 (2012), archived at http://perma.cc/3VT9-64GM.
409. Steven L. Keller, Bd. of Veterans' Appeals, Report of the Chairman: Fiscal Year 2012, at 5-8 (2013), archived at http://perma.cc/4PXD-8B3V.
410. See Inst. of Med. of the Nat'l Acads., A 21st Century System for Evaluating Veterans for Disability Benefits 161 (Michael McGeary et al. eds., 2007), available at http://books.nap.edu/openbook.php?record_id=11885 ("Prior to passage of the Veterans Judicial Review Act of 1988, [the Board of Veterans' Appeals] had always used expert panels to adjudicate claims. Each three-person section of [the Board] had a physician member 'whose medical judgment often controlled the outcome of an appeal).'"
411. Quoting Charles L. Cragin, Bd. of Veterans' Appeals, Fiscal Year 1996 Report of the Chairman 32 (1996).
412. Charles Cragin, Bd. of Veterans' Appeals, Report of the Chairman for Fiscal Year 1995, at 5 (1996), archived at http://perma.cc/X3V4-Z6RM.
413. Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991); at 175 (criticizing the Board for "refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions" and holding that "BVA panels may consider only independent medical evidence to support their findings")
414. See Inst. of Med. of the Nat'l Acads., A 21st Century System for Evaluating Veterans for Disability Benefits 161 (Michael McGeary et al. eds., 2007), available at http://books.nap.edu/openbook.php?record_id=11885 ("Prior to passage of the Veterans Judicial Review Act of 1988, [the Board of Veterans' Appeals] had always used expert panels to adjudicate claims. Each three-person section of [the Board] had a physician member 'whose medical judgment often controlled the outcome of an appeal).'"
415. See Inst. of Med. of the Nat'l Acads., A 21st Century System for Evaluating Veterans for Disability Benefits 161 (Michael McGeary et al. eds., 2007), available at http://books.nap.edu/openbook.php?record_id=11885 ("Prior to passage of the Veterans Judicial Review Act of 1988, [the Board of Veterans' Appeals] had always used expert panels to adjudicate claims. Each three-person section of [the Board] had a physician member 'whose medical judgment often controlled the outcome of an appeal).'"
416. See Inst. of Med. of the Nat'l Acads., A 21st Century System for Evaluating Veterans for Disability Benefits 161 (Michael McGeary et al. eds., 2007), available at http://books.nap.edu/openbook.php?record_id=11885 ("Prior to passage of the Veterans Judicial Review Act of 1988, [the Board of Veterans' Appeals] had always used expert panels to adjudicate claims. Each three-person section of [the Board] had a physician member 'whose medical judgment often controlled the outcome of an appeal).'"
417. See Inst. of Med. of the Nat'l Acads., A 21st Century System for Evaluating Veterans for Disability Benefits 161 (Michael McGeary et al. eds., 2007), available at http://books.nap.edu/openbook.php?record_id=11885 ("Prior to passage of the Veterans Judicial Review Act of 1988, [the Board of Veterans' Appeals] had always used expert panels to adjudicate claims. Each three-person section of [the Board] had a physician member 'whose medical judgment often controlled the outcome of an appeal).'"
418. Charles Cragin, Bd. of Veterans' Appeals, Report of the Chairman for Fiscal Year 1995, at 5 (1996), archived at http://perma.cc/X3V4-Z6RM.
419. Gott v. Walters, 756 F.2d 902, 916 (D.C. Cir. 1985).
420. See Sackett v. U.S. EPA, 622 F.3d 1139, 1143 (9th Cir. 2010) ("Every circuit that has confronted this issue has held that the [Clean Water Act] impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court. ").
421. See 33 U.S.C. § 1319(a)(3) (2012) (distinguishing between "issu[ing] an order requiring such person to comply with [the Act]" and "bring[ing] a civil action" to enforce the order).
422. See 33 U.S.C. § 1319(a)(3) (2012) (distinguishing between "issu[ing] an order requiring such person to comply with [the Act]" and "bring[ing] a civil action" to enforce the order).
423. See S. Rep. No. 92-414, at 64 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3730 ("One purpose of these new requirements is to avoid the necessity of lengthy fact finding, investigations, and negotiations at the time of enforcement. ").
424. 33 U.S.C. § 1319(g)(8).
425. See Sackett v. EPA, 132 S. Ct. 1367, 1373 (2012) (framing its analysis of preclusion around the "presumption favoring judicial review of administrative action" (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984) (internal quotation marks omitted).
426. See, e.g., S. Pines Assocs. v. United States, 912 F.2d 713, 717 (4th Cir. 1990) (rejecting constitutional challenge to compliance order because recipients were "not subject to. penalties until EPA pursues an enforcement proceeding"). The Clean Air Act, 42 U.S.C. §§ 7401-7671q (2006 & Supp. V 2011) (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (2006) (CERCLA), have functionally similar schemes for preenforcement compliance orders. Due process challenges to those schemes have likewise failed.
427. See Gen. Elec. Co. v. Jackson, 610 F.3d 110, 113 (D.C. Cir. 2010) (CERCLA).
428. Union Elec. Co. v. EPA, 593 F.2d 299, 304 (8th Cir. 1979) (CAA).
429. See Gen. Elec. Co. v. Jackson, 131 S. Ct. 2959 (2011) (mem.), denying cert. to 610 F.3d 110.
430. See Memorandum from Susan Shinkman, Dir., Office of Civil Enforcement, & Elliot J. Gilberg, Dir., Office of Site Remediation Enforcement, to EPA Regional Counsel (Mar. 21, 2013). The major exception is for administrative enforcement orders issued under CERCLA.
431. Bridget DiCosmo, Downplaying High Court Ruling, EPA Floats Options for CWA Enforcement, InsideEPA. com (May 7, 2012), http://insideepa.com/Inside-EPA-General/Inside-EPA-Public-Content/downplaying-high-court-ruling-epa-floats-options-for-cwa-enforcement/menu-id-565.html, archived at http://perma.cc/FC7M-CRS9 (quoting Mark Pollins, Director, EPA Water Enforcement Division).
432. See Principal Brief of Petitioners Luminant Generation Company LLC, and Energy Future Holdings Corp. at 53-60, Luminant Generation Co. v. U.S. EPA, No. 12-60694 (5th Cir. Jun. 12, 2013), archived at http://perma.cc/HX7J-JMHE.
433. See Fed. R. Civ. P. 13(a).
434. See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986) ("We begin with the strong presumption that Congress intends judicial review of administrative action. ")
435. COMSAT Corp. v. FCC, 114 F.3d 223, 226 (D.C. Cir. 1997) ("As with most administrative agency decisions, we start with the assumption that there is a 'strong presumption' of reviewability. "
436. See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986) ("We begin with the strong presumption that Congress intends judicial review of administrative action. ")
437. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) ("[T]he canon expressio unius est exclusio alterius does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an 'associated group or series,' justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence. "
438. Quoting United States v. Vonn, 535 U.S. 55, 65 (2002).
439. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984) (finding in the face of silence that "the congressional intent to preclude judicial review is 'fairly discernible in the statutory scheme)'"
440. Quoting Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970).
441. Quoting Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970).
442. See Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 89 (1995) ("Before Abbott, most rules could be reviewed only in the context of an enforcement action. ").
443. See Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 89 (1995) ("Before Abbott, most rules could be reviewed only in the context of an enforcement action. ").
444. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
445. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 183 (1967) (Fortas, J., concurring in part and dissenting in part).
446. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 183 (1967) (Fortas, J., concurring in part and dissenting in part).
447. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 183 (1967) (Fortas, J., concurring in part and dissenting in part).
448. See Paul R. Verkuil, Judicial Review of Informal Rulemaking, 60 Va. L. Rev. 185, 205 (1974).
449. See Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 89 (1995) ("Before Abbott, most rules could be reviewed only in the context of an enforcement action. ").
450. Jerry L. Mashaw, Greed, Chaos, and Governance 178 (1997)
451. Jerry L. Mashaw, Greed, Chaos, and Governance 178 (1997)
452. Jerry L. Mashaw, Greed, Chaos, and Governance 178 (1997)
453. But see Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals to Restrict Pre-Enforcement Review of Agency Rules, 58 Ohio St. L.J. 85, 97-98 (1997) (arguing that Mashaw's analysis "is incomplete, " at 97, and "fails to address when compliance with a rule might be detrimental rather than beneficial, ").
454. John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 140, 161 (1998) (arguing that administrative common law dishonors "the supremacy of legislation, ").
455. See Ronald M. Levin, The Story of the Abbott Labs Trilogy: The Seeds of the Ripeness Doctrine, in Administrative Law Stories 477 (Peter Strauss ed., 2006) (noting that a "more measured reading" of Abbott Labs "helps to explain why the courts do continue to deny direct review of rules from time to time").
456. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998) (stating that the ripeness inquiry turns on "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented").
457. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) ("Facial challenges are disfavored. ").
458. But see Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals to Restrict Pre-Enforcement Review of Agency Rules, 58 Ohio St. L.J. 85, 97-98 (1997) (arguing that Mashaw's analysis "is incomplete, " at 97, and "fails to address when compliance with a rule might be detrimental rather than beneficial, ").