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    Harvard Law Review: Volume 127, Number 5 - March 2014
    Harvard Law Review: Volume 127, Number 5 - March 2014
    Harvard Law Review: Volume 127, Number 5 - March 2014
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    Harvard Law Review: Volume 127, Number 5 - March 2014

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    The March 2014 issue (Volume 127, Number 5) features the following articles and review essays:

    * Article, "The Puzzling Presumption of Reviewability," Nicholas Bagley

    * Book Review, "Making the Modern Family: Interracial Intimacy and the Social Production of Whiteness," Camille Gear Rich

    * Book Review, "The Case for Religious Exemptions -- Whether Religion Is Special or Not," Mark L. Rienzi

    * Book Review, "Courts as Change Agents: Do We Want More -- Or Less?," Jeffrey S. Sutton

    * Note, "Improving Relief from Abusive Debt Collection Practices"

    In addition, student case notes explore Recent Cases on such diverse subjects as standing in increased-risk lawsuits, concealed carry permits, free speech and wedding photography, customary international law, and class action tolling in securities cases, as well as Recent Legislation involving domestic violence and Native American tribal jurisdiction. Finally, the issue includes several summaries of Recent Publications.

    The Harvard Law Review is offered in a quality digital edition, featuring active Contents, linked notes, active URLs in notes, and proper ebook formatting. The contents of Number 5 (Mar. 2014) include scholarly essays by leading academic figures, as well as substantial student research. The Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateMar 6, 2014
    ISBN9781610278768
    Harvard Law Review: Volume 127, Number 5 - March 2014
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    Harvard Law Review

    The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2500 pages per volume. The organization is formally independent of Harvard Law School. Primary articles are written by leading legal scholars, with contributions in the form of case summaries and Notes by student members.

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      Book preview

      Harvard Law Review - Harvard Law Review

      Volume 127

      Number 5

      March 2014

      Harvard Law Review

      Volume 127, Number 5

      Smashwords edition. Published by Quid Pro Books, at Smashwords.

      Copyright © 2014 by The Harvard Law Review Association. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

      The publisher of various editions and formats is The Harvard Law Review, who authorized Quid Pro Books to reproduce its issues in ebook formats: digitally published in 2014 to such editions, for The Harvard Law Review, by Quid Pro Books. Available in major digital formats and at leading retailers and booksellers.

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      CONTENTS

      ARTICLE

      The Puzzling Presumption of Reviewability

      Nicholas Bagley

      (127 HARV. L. REV. 1285)

      BOOK REVIEWS

      Making the Modern Family: Interracial Intimacy and the Social Production of Whiteness

      Camille Gear Rich

      (127 HARV. L. REV. 1341)

      The Case for Religious Exemptions — Whether Religion Is Special or Not

      Mark L. Rienzi

      (127 HARV. L. REV. 1395)

      Courts as Change Agents: Do We Want More — Or Less?

      Jeffrey S. Sutton

      (127 HARV. L. REV. 1419)

      NOTE

      Improving Relief from Abusive Debt Collection Practices

      (127 HARV. L. REV. 1447)

      RECENT CASES

      Administrative Law — Standing — District Court Allows Increased-Risk Suit Without Addressing Standing. — Center for Food Safety v. Hamburg, No. C 12-4529 PJH, 2013 WL 1741816 (N.D. Cal. Apr. 22, 2013)

      (127 HARV. L. REV. 1469)

      Constitutional Law — Second Amendment — Fourth Circuit Upholds Good-and-Substantial-Reason Requirement for Concealed Carry Permits. — Woollard v. Gallagher, 712 F.3d 865 (4th Cir.), cert. denied, 134 S. Ct. 422 (2013)

      (127 HARV. L. REV. 1477)

      Constitutional Law — First Amendment — New Mexico Supreme Court Holds that Application of Public Accommodations Law to Wedding Photography Company Does Not Violate First Amendment Speech Protections. — Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)

      (127 HARV. L. REV. 1485)

      International Law — Alien Tort Statute — Second Circuit Holds that Kiobel Bars Common Law Suits Alleging Violations of Customary International Law Based Solely on Conduct Occurring Abroad. — Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013)

      (127 HARV. L. REV. 1493)

      Civil Procedure — Class Actions — Second Circuit Holds that American Pipe Class Action Tolling Doctrine Does Not Apply to Statute of Repose in Securities Act of 1933. — Police & Fire Retirement System of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013)

      (127 HARV. L. REV. 1501)

      RECENT LEGISLATION

      Indian Law — Tribal Courts — Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. — The Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. IX, 127 Stat. 54, 118–26 (to be codified in scattered sections of the U.S. Code)

      (127 HARV. L. REV. 1509)

      RECENT PUBLICATIONS

      (127 HARV. L. REV. 1519)

      About the Harvard Law Review

      The Harvard Law Review (ISSN 0017-811X) is published monthly eight times a year, November through June, by The Harvard Law Review Association at Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138. Periodicals postage paid at Boston, Mass., and additional mailing offices. POSTMASTER: Send address changes to the Harvard Law Review, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

      Current subscription: $60.00 individual / $200.00 institution, payable in advance. Remittance must be made by U.S. Dollar Draft payable at a United States bank. Subscription requests that are received midvolume may be subject to an additional postage and handling charge. Domestic claims of nonreceipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All notifications of changes of address should include old and new addresses, with ZIP codes. Please inform us one month in advance to ensure prompt delivery.

      Single issues of Volume 127 are available from The Harvard Law Review Association at the following prices: $15.00 individual / $55.00 institution. Back issues and volumes prior to Volume 127 are available from William S. Hein & Co., Inc., 1285 Main St., Buffalo, NY 14209-1987. For the prices of issues, volumes, and sets prior to Volume 127, please inquire of William S. Hein & Co., Inc. (http://www.wshein.com).

      INFORMATION FOR CONTRIBUTORS

      The Review invites the submission of unsolicited manuscripts. The Review will give preference to articles under 50 law review pages in length — the equivalent of about 25,000 words including text and footnotes. The Review will not publish articles exceeding 60 law review pages — the equivalent of about 30,000 words — except in extraordinary circumstances. Please confine author’s name and biographical information to a removable title page. Footnotes should conform to the 19th edition of The Bluebook: A Uniform System of Citation.

      Review of manuscripts may take from four to six weeks. Authors who are considering concurrent submissions to other journals should be aware that the Review cannot guarantee timely responses to requests for expedited review.

      Send all correspondence to The Harvard Law Review Association, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

      For additional information about the Harvard Law Review, or to submit a manuscript, please visit our website at http://www.harvardlawreview.org.

      ARTICLE

      THE PUZZLING PRESUMPTION OF REVIEWABILITY

      Nicholas Bagley

      [127 HARV. L. REV. 1285 (2014)]

      CONTENTS

      THE PUZZLING PRESUMPTION OF REVIEWABILITY

      Nicholas Bagley*

      The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors — appellate-style arbitrariness review — was not only unheard of prior to the twentieth century, but was commonly thought to be unconstitutional. The ostensible statutory source for the presumption — the Administrative Procedure Act — nowhere instructs courts to strain to read statutes to avoid the preclusion of judicial review. And although the text and structure of the Constitution may prohibit Congress from precluding review of constitutional claims, a presumption responsive to constitutional concerns would favor review of those claims, not any and all claims of agency wrongdoing.

      As for policy, Congress has the constitutional authority, democratic legitimacy, and institutional capacity to make fact-intensive and value-laden judgments of how best to weigh the desire to afford private relief against the disruption to the smooth administration of public programs that such relief may entail. Courts do not. When the courts invoke the presumption to contort statutes that appear to preclude review to nonetheless permit it, they dishonor Congress’s choices and limit its ability to tailor administrative and regulatory schemes to their particular contexts. The courts should end this practice. Where the best construction of a statute indicates that Congress meant to preclude judicial review, the courts should no longer insist that their participation is indispensable.

      The presumption in favor of judicial review of agency action is a cornerstone of administrative law. Routinely described as strong,¹ basic,² fundamental,³ far-reaching,⁴ even a truism,⁵ the presumption is accepted by courts and commentators alike as both legally appropriate and obviously desirable. Although Congress can overcome the presumption and preclude judicial review, its intent to do so must be either expressed in clear and convincing terms⁶ or fairly discernible from statutory structure.⁷ In practice, the federal courts often invoke the presumption to contort statutes that appear to preclude judicial review to nonetheless permit it.⁸ Indeed, the Supreme Court recently drew on the presumption in unanimously rejecting the uniform conclusion of the circuit courts that a statute precluded review of certain orders issued by the Environmental Protection Agency (EPA).⁹

      Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors — appellate-style arbitrariness review — was not only unheard of prior to the twentieth century, but was commonly thought to be unconstitutional. The ostensible statutory source for the presumption — the Administrative Procedure Act¹⁰ (APA) — nowhere instructs courts to construe statutes to avoid preclusion. And although the text and structure of the Constitution may prohibit Congress from precluding review of constitutional claims, a presumption responsive to constitutional concerns would favor review of constitutional claims, not any and all claims of agency wrongdoing.

      As for policy considerations, judicial review might improve the fairness, quality, and legality of agency decisionmaking. But it also introduces delay, diverts agency resources, upsets agency priorities, and shifts authority within agencies toward lawyers and away from policymakers. Congress has the constitutional authority, democratic legitimacy, and institutional capacity to understand and to trade off these competing values. Courts do not. Nor is there reason to think that the presumption allows courts to better capture Congress’s intent. The presumption is sometimes thought to provide a stable backdrop against which to legislate: Congress knows that it must state its intent to preclude review in clear terms and drafts accordingly. The available evidence, however, lends no support for the assumption that Congress is aware of the presumption or keeps it in mind when writing statutes. In fact, the evidence suggests the contrary.

      The absence of support for the presumption of reviewability is not just an academic concern. As Justice Frankfurter put it seventy years ago, engraft[ing] upon remedies which Congress saw fit to particularize . . . impliedly denies to Congress the constitutional right of choice in the selection of remedies.¹¹ Dishonoring Congress’s choices limits its ability to tailor its administrative and regulatory schemes to their particular contexts. For one example, consider the Department of Veterans Affairs (VA), which is charged with dispensing disability benefits to wounded veterans.¹² Congress had for many years barred veterans who were denied disability benefits from seeking judicial review. The absence of review was thought to be an essential feature of an efficient, easy-to-navigate, and nonadversarial process for resolving disability claims. Although the system appeared to work well, the federal courts repeatedly invoked the presumption of reviewability to avoid the statutory bar — even after Congress tightened the language to confirm its desire to foreclose judicial review. Finally, in 1988, a frustrated Congress relented to the courts’ insistence and subjected disability claims to court review.

      Twenty-five years later, the process for reviewing disability claims is in shambles. Because of the demands of judicial review, disability decisions have swelled in length and intricacy. Far from simple and nonadversarial, the process has become complex, legalistic, and protracted.¹³ That has in turn frustrated the VA’s efforts to quickly process new claims — an especially troubling development given the surge in disability claims arising from the wars in Iraq and Afghanistan. A backlog of about 600,000 unresolved disability claims has provoked widespread public condemnation.¹⁴

      The presumption’s continuing vitality is especially startling when viewed alongside the Supreme Court’s marked tendency across an array of doctrinal contexts to narrow the range of disputes that it is willing to hear.¹⁵ Among other things, the Court has resisted the implication of private rights of action,¹⁶ ratcheted up civil pleading standards,¹⁷ limited habeas suits,¹⁸ restricted standing,¹⁹ and curbed class actions.²⁰ Yet the presumption of reviewability is alive and well, as the Supreme Court vividly demonstrated in the recent case involving EPA.

      And it stands unchallenged. This Article takes systematic aim at the consensus view, reflected in both the courts and the commentary, that the presumption of reviewability is an inevitable and attractive part of administrative law. Part I briefly recounts how the presumption assumed its modern form. Part II explores the various arguments — historical (section II.A), statutory (section II.B), constitutional (section II.C), and prudential (sections II.D and II.E) — that have been invoked to support the presumption, and concludes that none is satisfactory. Part III then turns to the costs of the presumption and argues that, both in principle (section III.A) and in practice (section III.B), it can impede the proper functioning of the regulatory and administrative regimes that Congress has established.

      The courts should therefore abandon the presumption of reviewability (section III.C). As I will explain, the APA would still authorize judicial review where, after deploying the orthodox rules of statutory construction, no congressional statute appears to preclude it. But where the best construction of a statute indicates that Congress meant to preclude review, the courts should end their longstanding practice of discarding that construction in favor of a less plausible interpretation that permits review.

      The Article closes with a suggestion (section III.D). The presumption of reviewability served as the linchpin of the Supreme Court’s conclusion more than fifty years ago that the APA authorizes the preenforcement review of agency rules. Now entrenched in administrative law, preenforcement review has come under searing criticism for undermining effective governance. The fragility of the primary analytical foundation of preenforcement review offers another reason to rethink its place in administrative law.

      I. THE MODERN PRESUMPTION

      Under the APA, agency action is typically subject to review in the courts except to the extent that . . . statutes preclude judicial review.²¹ The question whether a particular statute precludes review of a particular agency action is a perennial one. Much of the time the answer is clear: Congress has either explicitly provided for review or foreclosed it in equally explicit terms. But challenging interpretive questions recur. Congress is sometimes silent about judicial review in circumstances where such review might disrupt the operation of an administrative scheme.²² At other times, a statute establishes specific routes for pursuing judicial review, raising the possibility that Congress meant to preclude review by alternate routes.²³ And Congress will occasionally withdraw judicial review in generic terms without addressing whether it really meant to preclude review of atypical challenges to agency action.²⁴ The presumption of reviewability aids in resolving these sorts of interpretive conundrums.

      The presumption took its modern shape in the 1967 decision of Abbott Laboratories v. Gardner.²⁵ Abbott Labs presented one of these recurring interpretive problems. By statute, Congress had subjected certain regulations issued by the Food and Drug Administration to judicial review prior to their enforcement — but not the regulations at issue in the case.²⁶ The question was what to make of Congress’s silence. By failing to provide an avenue for preenforcement review of the challenged regulations, did Congress intend to preclude such review? Or was its silence just an oversight? Because the regulations at issue could eventually have been challenged in an enforcement proceeding, the question in Abbott Labs boiled down to one of timing.

      The Supreme Court’s analysis hinged on the principle that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.²⁷ In the Court’s view, the APA, in providing that anyone aggrieved by an agency action is entitled to judicial review thereof,²⁸ embodied that basic presumption.²⁹ Reinforcing the point was the APA’s legislative history, and in particular a House committee report stating that a statute must upon its face give clear and convincing evidence of an intent to withhold judicial review before such review will be precluded.³⁰ Finding no such evidence in the statutory structure or legislative history of the Federal Food, Drug, and Cosmetic Act,³¹ the Court allowed the preenforcement challenge to proceed.

      Although Abbott Labs was about timing, the presumption that it articulated quickly assumed a place of prominence in case law about the outright foreclosure of judicial review. In case after case, the Supreme Court invoked the presumption to enable judicial review where Congress had arguably precluded it.³² As with all canons of construction, however, the presumption has never been absolute. The Court on occasion has found that the presumption has been overcome even in the absence of language precluding review,³³ most significantly in the 1984 case of Block v. Community Nutrition Institute.³⁴ In Block, the Court clarified that it never meant the clear and convincing standard to apply in anything like a strict evidentiary sense,³⁵ and held that the presumption could be rebutted where an intent to preclude review was fairly discernible in the detail of the legislative scheme.³⁶

      Block did not, however, signal an abandonment of the presumption of reviewability. Two years later, in Bowen v. Michigan Academy of Family Physicians,³⁷ a unanimous Court offered an elaborate defense of the presumption — starting, rather grandly, with Chief Justice Marshall. After reciting from Marbury v. Madison the statement that [t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,³⁸ the Court quoted from Marshall’s 1835 decision in United States v. Nourse,³⁹ which it claimed laid the foundation for the modern presumption of judicial review⁴⁰:

      It would excite some surprise if, in a government of laws and of principle, furnished with a department whose appropriate duty it is to decide questions of right, not only between individuals, but between the government and individuals; a ministerial officer might, at his discretion, issue this powerful process . . . leaving to the debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States.⁴¹

      As further support, the Court also invoked the APA and the same committee report that had featured so prominently in Abbott Labs.⁴²

      The awkwardness of the Court’s statutory analysis underscored the strength of the presumption. Michigan Academy involved a challenge to a regulation issued under Medicare Part B. The Court had previously held that the Medicare statute precluded judicial review of Part B claims: the statute’s precisely drawn provisions, which provided for administrative review of both Part A and Part B claims and for judicial review of a subset of Part A claims, [c]onspicuously . . . fail[] to authorize further review for determinations of the amount of Part B awards.⁴³ In Michigan Academy, however, the Court was reluctant to infer from those same precisely drawn provisions that Congress meant to cut off all review of Part B claims. Instead, the Court distinguished between challenges to the amount of Part B reimbursement (precluded) and challenges to the method used to determine that amount (not precluded).⁴⁴ The Medicare statute made no allowance for such statutory legerdemain.

      Since Michigan Academy, the presumption of reviewability has featured prominently in a number of Supreme Court decisions. On occasion, the Court has found sufficient statutory evidence, even in the absence of explicit preclusion, to rebut the presumption.⁴⁵ More often, however, the Court has deployed the presumption to confirm the availability of judicial review in the face of a statute that arguably precluded it.⁴⁶ Lower courts have followed suit and routinely find in favor of reviewability even in the face of strong statutory evidence that Congress meant to preclude review.⁴⁷ A number of state courts likewise draw on federal case law in presuming the reviewability of state agency actions.⁴⁸

      The Supreme Court’s most recent application of the presumption came in its 2012 decision in Sackett v. EPA.⁴⁹ Sackett involved a compliance order that EPA had issued to a husband and wife demanding the removal of fill material that they had deposited on their residential property without the necessary permit. EPA would have had to go to court to enforce the order, but the Sacketts didn’t want to wait to see if it would. They wanted to challenge the order immediately.⁵⁰ The trouble for the Sacketts was that the Clean Water Act⁵¹ appears to preclude preenforcement review of compliance orders. That, at least, was the conclusion of every circuit to have considered the question.⁵² Invoking the presumption of reviewability, the Court nonetheless held that the homeowners could challenge the compliance order. The Court was unimpressed with the federal government’s claim that this would hamper enforcement of the Clean Water Act: The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.⁵³

      II. JUSTIFICATIONS FOR THE PRESUMPTION

      The presumption in favor of judicial review of administrative action has been a central part of administrative law for almost five decades. But is it defensible? In this Part, I canvass the various justifications that courts and commentators have advanced in its favor.

      A. History

      As Michigan Academy’s references to Chief Justice Marshall’s opinions suggest, a presumption of reviewability might be justified with reference to longstanding historical practice. The argument would run like this: Statutory language is not self-executing; interpretation depends on a shared set of linguistic and legal conventions. If the judiciary had for three hundred years consistently applied the presumption of reviewability, as Professors Richard Stewart and Cass Sunstein have asserted,⁵⁴ the canon could have attained the status of an accepted legal convention, perhaps even one with constitutional status. Against this backdrop, Congress could properly be understood to have acceded to the courts’ practice of subjecting administrative action to review in the face of statutes that appear to foreclose it.⁵⁵

      The presumption of reviewability, however, lacks a plausible nineteenth-century antecedent. Keep in mind that the modern presumption doesn’t reflect a vague, generalized preference for judicial review of whatever kind. Instead, it favors a specific kind of judicial review: appellate-style review of administrative action for illegality and arbitrariness. As Professors Jerry Mashaw and Thomas Merrill have recently emphasized, however, that kind of court oversight of an agency’s discretionary determinations was almost unheard of in the nineteenth century.⁵⁶ Indeed, it was commonly thought to be unconstitutional. The federal courts were troubled at the prospect of the judicial revision of discretionary decisions of the executive branch,⁵⁷ much as the Supreme Court in Hayburn’s Case⁵⁸ worried about the constitutionality of executive branch review of final judicial determinations.⁵⁹ Judicial second-guessing, as Professor Bruce Wyman explained in his 1903 treatise on administrative law, was thought to violate the life principle in the rule of the separation of powers that the judiciary should have no business in the action of the administration.⁶⁰

      In the 1854 case of United States v. Ritchie,⁶¹ for example, the Supreme Court considered the constitutionality of a federal statute allowing for appeals to federal district court of decisions issued by a board of commissioners that had been established to resolve the validity of claims to California land. The Court found the statute constitutional, but only after holding that the suit in the district court is to be regarded as an original proceeding.⁶² Although the commission would forward what would today be called the administrative record, courts were

      not confined to a mere reëxamination of the case as heard and decided by the board of commissioners, but [would] hear[] the case de novo, upon the papers and testimony which had been used before the board, they being made evidence in the district court; and also upon such further evidence as either party may see fit to produce.⁶³

      The Court thus, in Mashaw’s words, upheld the statute by misreading it.⁶⁴ Although the statutory scheme at issue in Ritchie was unusual, the Court’s discomfort with what we now think of as arbitrariness review runs like a leitmotif through the nineteenth-century cases. Not until the early decades of the twentieth century, Merrill notes, did courts embrace the salient features of the appellate review model, which allowed decisional authority to be shared between agencies and courts.⁶⁵

      Nineteenth-century judicial review of agency action instead came in two main forms. The first involved the issuance of extraordinary writs, especially mandamus, to compel federal officers to carry out their nondiscretionary duties. Notably, the scope of the writ was quite limited. Only the Circuit Court for the District of Columbia was empowered to issue the writ to federal officers, and only then when those officers worked in the District.⁶⁶ Mandamus was irrelevant to federal officers in far-flung customs, land, or post offices.

      Still, mandamus bears at least a passing resemblance to the APA’s instruction that courts compel agency action unlawfully withheld.⁶⁷ That resemblance is misleading, however. Mandamus relief was thought to be constitutional only because it disavowed the sort of interference in the discretionary duties of executive officers that characterizes judicial review today. Instead, the writ was available only to require the performance of a ministerial act that federal law unequivocally demanded. When the officer in question exercised discretionary authority, the courts would decline to intervene.⁶⁸

      Although the line between ministerial and discretionary duties is not sharp, federal courts almost never found that administrative action was ministerial in nature.⁶⁹ Before 1880, the Supreme Court had only once, in the 1838 case of Kendall v. United States ex rel. Stokes,⁷⁰ affirmed the issuance of mandamus. The case was atypical. Upon assuming the office of Postmaster General, Amos Kendall had disallowed certain excess payments that his predecessor had approved in connection with contracts for transporting the mail. The contractors took the dispute to Congress, which enacted a statute directing the Postmaster General to pay the contractors an amount determined by the Solicitor of the Treasury Department. Kendall refused.⁷¹ With three Justices dissenting, the Court affirmed the lower court’s issuance of mandamus because the command to pay was a precise, definite act, purely ministerial; and about which the postmaster general had no discretion whatever.⁷²

      Kendall was destined to be an anomaly.⁷³ Just two years later, in Decatur v. Paulding,⁷⁴ the Supreme Court reaffirmed its reluctance to superintend administrative action through mandamus. The case involved a pension — or, rather, two pensions — sought by the widow of Stephen Decatur, the famous naval hero. An 1837 statute conferred on any widow of any naval officer killed in service a pension at half the pay to which the officer would have been entitled. On the same day it enacted the pension statute, Congress also issued a resolution granting a pension to Decatur’s widow, also at half-pay. Decatur’s widow sought both pensions. After the Secretary of the Navy denied her request, she sought mandamus relief.⁷⁵

      The Supreme Court concluded that the decision whether to pay both pensions was discretionary in nature, not ministerial. In the Court’s view, resolving the request of Decatur’s widow would have required the Secretary to construe the pension legislation, decide what half-pay constituted, check the condition of the pension fund, and apportion any deficiency among claimants.⁷⁶ All this was enough to take the decision out of the realm of the ministerial and to distinguish the case from Kendall. Precisely why is not altogether clear: the Postmaster General in Kendall also had to interpret statutes and deal with potential deficiencies in order to discharge Congress’s instruction. But the lesson of Decatur was unmistakable:

      In general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress, under which he is from time to time required to act. . . .

      The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief . . . .⁷⁷

      After Decatur, it took another forty years for the Court to find a federal officer who had failed to discharge a ministerial duty — and there (shades of Marbury) only upon a flat refusal to deliver a land patent that had been signed by the President, sealed with the seal of the General Land-Office, countersigned by the recorder of the land-office, and duly recorded in the record-book kept for that purpose.⁷⁸ In the meantime, the Court repeatedly found administrative action — even action that appeared to thwart straightforward legal commands — to be discretionary in nature and outside the purview of mandamus.⁷⁹ Nor was the Court more amenable to the issuance of injunctions, holding in 1868 that, as with mandamus, injunctions would not issue to prohibit discretionary action.⁸⁰

      Suits seeking mandamus relief or injunctions did not exhaust the field of nineteenth-century judicial review. The courts’ reluctance to directly superintend administrative action was matched by an equal commitment to protecting against the unlawful invasion of common law rights. The second main form of judicial review of administrative action therefore came in lawsuits against federal officers, who could properly be sued in their individual capacities through the common law forms of action (for example, replevin, trover, assumpsit). The officer could defend on the ground that his action was justified by statute. If the court, aided by a jury, found otherwise, the officer would be treated as a private individual who had committed a legal wrong and could be held personally liable for damages.⁸¹

      Common law actions against federal officers were both common and consequential.⁸² For at least three reasons, however, they did not at all resemble presumptive appellate-style oversight of administrative action. First, review of questions of both fact and law was de novo and the typical remedy was damages from the officer himself, not vacatur of the agency action.⁸³ Second, because the availability of review rose and fell with the availability of common law actions, much governmental activity was shielded from judicial attention. Agency failures to act, for example, would rarely, if ever, give rise to common law suits.⁸⁴ And the erroneous deprivation of a government benefit — a military pension, for instance — was not considered a common law wrong and thus gave rise to no cause of action.⁸⁵ Third, as with mandamus, the question for the court was typically not whether the officer had abused his discretion, but whether he had acted within his jurisdiction.⁸⁶ Courts were not always fastidious about this distinction: in the early Republic in particular, they policed certain federal officers more strictly, especially in the tax and customs contexts.⁸⁷ But by midcentury the norms of mandamus review had seeped over into most damages actions.⁸⁸

      What binds the nineteenth-century cases together is their rejection of the sort of arbitrariness review that characterizes modern administrative law.⁸⁹ The courts, as Wyman explained, can only inquire whether the action has been in excess of power, never whether the action has been [a]n abuse of power. In legal phrase the question before the court is one of the jurisdiction; it is not one of the merits.⁹⁰ As such, agencies did not need to, and often did not, offer reasons for their actions.⁹¹ The result was what Professor Frederic Lee aptly termed a doctrine of non-reviewability of administrative discretion.⁹²

      The upshot of this system of judicial oversight was that an immense amount of administrative action was shielded from judicial scrutiny. As Mashaw reports:

      [T]he Bureau of Pensions was deciding hundreds of thousands of cases in the immediate postwar years, and it continued to do so for decades as Congress repeatedly amended and expanded military pension eligibility. The Land Office, the Patent Office, the Court of Claims, the Controller’s Office of the Treasury, and the Post Office decided tens of thousands more. In 1869, for example, the Steamboat Inspection Service reported licensing nearly 3,000 vessels and 9,000 pilots and engineers.

      These were not trivial cases. Steamboats remained crucial to both commerce and travel notwithstanding the rapid growth of the railroads. Land was still the greatest source of wealth, even as industrial capital, often protected by invention patents, was striving for dominance. Decisions by the Land and Patent Offices and the Steamboat Service were, therefore, economically consequential, as were the decisions of the Pension Office. Although individual pension amounts were small, a remarkable proportion of Northern families depended upon military pensions for a part of their livelihood. Finally, a fraud order by the Post Office often simply ended a firm’s capacity to do business. Yet, virtually none of those adjudicatory actions was subject to judicial review . . . .⁹³

      Against this backdrop, it’s difficult to understand the Supreme Court’s assertion in Michigan Academy that [f]rom the beginning — and by beginning it meant the beginning of the Republic⁹⁴ — our cases [have established] that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.⁹⁵

      It also becomes apparent just how misplaced the Court’s invocation of Chief Justice Marshall was. The soaring language in Marbury that [t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury⁹⁶ should not obscure the narrowness of the power that Marshall actually claimed for the courts. Although Marshall agreed that mandamus was in principle appropriate to compel James Madison, then–Secretary of State, to deliver William Marbury’s judicial commission, that was only because Marbury’s property right to his judicial commission had vested when the President signed it. At that point, delivery of the commission was a ministerial act which the law enjoins on a particular officer for a particular purpose.⁹⁷ Marshall was at pains to disclaim all pretensions to "intermeddle with the

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