Judicial Review of Actions Legally Committed to an Agency’s Discretion
Legal Sidebari
Judicial Review of Actions Legally Committed
to an Agency’s Discretion
September 17, 2020
Individuals and entities affected by a federal agency’s action sometimes may be able to challenge that
action in federal court. In some cases, an agency’s governing statute specifically authorizes affected
parties to bring suit challenging a particular agency action. But even when specific statutory authority is
unavailable, a person generally can challenge an agency’s action in federal district court under the
Administrative Procedure Act (APA). On review, the APA empowers courts to set aside agency action that
is, among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.”
The Supreme Court has explained that the APA “embodies the basic presumption of judicial review” of
agency action, meaning that judicial review under the APA generally will be available to a party. But not
every legal challenge of an agency’s action is reviewable. Constitutional and prudential considerations
may limit when a court will entertain such a suit. Jurisdictional requirements must also be satisfied.
The APA itself limits judicial review of certain types of agency action. Specifically, the APA bars judicial
review of an agency’s action when (1) a particular statute precludes review of that action or (2) the action
“is committed to agency discretion by law.” While the first exception applies when a statute reflects
Congress’s intent to preclude judicial review, the second—codified at 5 U.S.C. § 701(a)(2)—often
requires a more searching examination about whether “the statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise of discretion.” (The APA also bars
judicial review in other ways, including by limiting court review to agency actions that are “final.”)
Some commentators have criticized the Supreme Court’s general approach to assessing when a particular
action is committed to agency discretion under Section 701(a)(2), which typically consists of reviewing
an underlying statute to determine if guidelines or standards exist that allow judicial evaluation of the
action. But the Court’s approach offers Congress guidance for crafting statutes in a way that reviewing
courts may read as preventing or, alternatively, authorizing court review of particular actions.
The Supreme Court’s Interpretation of Section 701(a)(2)
The Supreme Court has often been tasked with considering whether an agency’s action has been
“committed to agency discretion” under Section 701(a)(2). In Citizens to Preserve Overton Park v. Volpe,
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the Court emphasized that the provision provides a “very narrow” exception to the presumptive
reviewability of agency action under the APA. In that and later cases, the Court has described Section
701(a)(2) with reference to Section 706 of the APA, which gives courts the power to review agency
actions for “abuse of discretion.” The Court has explained that judges cannot determine if an agency has
abused its discretion without “judicially manageable standards”; an action is deemed as “committed to
agency discretion by law” when the authorizing statute is “drawn in such broad terms that in a given case
there is no law to apply.”
The Supreme Court typically has construed Section 701(a)(2) to cover actions that courts “traditionally”
have considered unreviewable. One such category concerns an agency’s decision to refuse to institute
enforcement proceedings. In Heckler v. Chaney, the Court held that judicial review of such decisions
generally was inappropriate for several pragmatic reasons. First, the Court explained that such decisions
typically involve “a complicated balancing of a number of factors which are peculiarly within [the
agency’s] expertise,” including whether the agency has sufficient resources to pursue enforcement. Next,
while acknowledging that an agency’s affirmative enforcement action supplies a basis for court review,
the Court reasoned “that when an agency refuses to act it generally does not exercise its coercive power
over an individual’s liberty or property rights,” rights that parties regularly ask courts to safeguard. An
agency’s enforcement action, the Court reasoned, “at least can be reviewed to determine whether the
agency exceeded its statutory powers.” Lastly, the Court believed that an agency’s non-enforcement
decision was similar in some respects to a federal prosecutor’s decision not to issue an indictment. The
latter decision, wrote the Court, “has long been regarded as the special province of the Executive
Branch.”
The Court in Chaney did not hold that judicial review of agency non-enforcement decisions was always
unavailable. Instead, the Court characterized such decisions as presumptively unreviewable, but
recognized that “the presumption may be rebutted where the substantive statute [at issue] has provided
guidelines for the agency to follow in exercising its enforcement powers.” If Congress has “indicated an
intent to circumscribe agency enforcement discretion” and “provided meaningful standards for defining
the limits of that discretion,” the Chaney Court explained, the statute will supply the “law” sufficient to
enable a court to review an agency’s non-enforcement decision. The Court also identified other situations
that might possibly rebut the presumption of unreviewability of non-enforcement decisions, including
where an agency “consciously and expressly” adopts a non-enforcement policy “so extreme as to amount
to an abdication of its statutory responsibilities.”
Over the years, the Court has recognized other types of agency decisions that fall within Section
701(a)(2)’s ambit. In Webster v. Doe, the Court held that the decision of the Director of the Central
Intelligence Agency (CIA) to dismiss an employee due to his sexual orientation was shielded from review
(except on constitutional grounds) where a statute had provided that the “Director may, in his discretion,
terminate [a CIA employee or officer] whenever he shall deem such termination necessary or advisable in
the interests of the United States.” Additionally, in Lincoln v. Vigil, while noting that agencies may not
“disregard statutory responsibilities,” the Court held that an agency’s distribution of money from a lump-
sum appropriation is “traditionally regarded as committed to agency discretion.” The Court has also found
a “tradition of nonreviewability” in an agency’s refusal to reconsider a prior decision when the petition
for reconsideration was based “on the same record that was before the agency when it rendered its
original decision.”
The Court has identified many types of agency actions that are not exempt from review under Section
701(a)(2). For example, the Court recently held that statutory and constitutional challenges may be
brought against census-related decisions by the Department of Commerce, as the taking of the census is
not a matter committed to agency discretion. And in Department of Homeland Security (DHS) v. Regents
of the University of California, the Court held that DHS’s rescission of the Deferred Action for Childhood
Arrivals (DACA) program was reviewable, explaining that DACA “created a program for conferring
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affirmative immigration relief” and that, therefore, its rescission “‘provides a focus for judicial review.’”
(For more on the Regents decision, see CRS Legal Sidebar LSB10497, Supreme Court: DACA Rescission
Violated the APA, by Ben Harrington.)
Criticism of the Supreme Court’s Interpretation of Section 701(a)(2)
As explained above, when the Supreme Court has analyzed whether Section 701(a)(2) bars judicial
review of an agency’s action, it generally seeks to determine if the underlying statute is “drawn in such
broad terms that in a given case there is no law to apply.” When a statute lacks helpful guideposts to
support judicial evaluation of an agency’s action, the relevant action is “committed to agency discretion
by law” and therefore may not be reviewed by the court.
Commentators have criticized the Court’s interpretation and application of Section 701(a)(2) on a variety
of grounds, including constitutional ones. For example, in his dissent in Webster v. Doe, Justice Scalia
criticized the “no law to apply” test for being underinclusive of the variety of actions courts traditionally
hold are not subject to review. He argued that the “law” in Section 701(a)(2)’s “committed to agency
discretion by law” embraces a “body of jurisprudence” that includes “principles ranging from the
‘political question’ doctrine, to sovereign immunity . . ., to official immunity, to prudential limitations
upon the courts’ equitable powers, to what can be described no more precisely than a traditional respect
for the functions of the other branches” of government. This large body of judicial-review common law,
remarked Justice Scalia, “cannot possibly be contained within the phrase ‘no law to apply.’”
Relatedly, some commentators have argued that the “no law to apply” language is too restrictive. One
scholar contended that a test that limits judicial review to instances where there is “law to apply” conflicts
with the APA’s abuse-of-discretion standard of judicial review. Whether an agency abused its discretion,
he wrote, is often “a matter for judicial discretion” and “may not be guided by law.” As another
commentator has explained, judicial review under the abuse-of-discretion standard often does not concern
whether an agency complied with relevant statutory factors, such as when courts examine whether an
agency supplied adequate reasons for changing course from a prior policy.
Critics have also opined that, while the Court typically recites the “no law to apply” test (or “no
meaningful standard” language) in its Section 701(a)(2) analyses, it has often rested its ultimate
determinations of an action’s nonreviewability on other or additional factors. For example, the Court in
Chaney discussed several pragmatic considerations for why agency non-enforcement decisions are
presumptively unreviewable that were not explicitly related to the presence of helpful legal guideposts for
judicial review.
Considerations for Congress
As discussed, the standard the Court generally applies in determining whether an agency action is
unreviewable under Section 701(a)(2) is whether there is “law to apply” by which to review the action or,
put another way, whether a statute contains a “meaningful standard against which to judge the agency’s
exercise of discretion.” Congress can expressly provide for or, conversely, preclude judicial review of an
agency’s action in statute. However, if Congress does not include such an explicit grant or prohibition, it
can seek to ensure parties may or may not challenge an agency’s action under the APA by setting forth
additional standards and criteria for judicial review of agency actions. For example, a court may be more
willing to review an agency’s decision not to pursue an enforcement action if the governing statute
imposes clear standards on the agency’s exercise of its enforcement discretion—i.e., how or when the
agency is to initiate enforcement actions—or creates clear conditions that trigger enforcement actions.
Relevant guidelines for judicial review may stem from sources other than Congress. The U.S. Court of
Appeals for the District of Columbia Circuit looks not only to statutes for guidelines, but also to agency
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regulations and “other binding expressions of agency viewpoint.” Interpreting Section 701(a)(2) to allow
such nonlegislative sources to supply the necessary “law” for reviewing agency actions imparts
significant authority to administrative agencies. The existence of such standards, however, may not
override Congress’s foreclosure of review of a particular type of action in statute. And Congress can, via
statute, authorize or limit an agencies’ creation of such criteria in accordance with its authority to define
and prescribe agencies’ powers and responsibilities.
The Supreme Court’s “no law to apply” test stems from its interpretation of Section 701(a)(2). It is not
based on constitutional considerations, and Congress can displace that test and any other judicial
interpretation of Section 701(a)(2) by amending that section. If Congress eliminated the section from the
APA, the only exception to judicial review contained in Section 701 of the APA would be for actions that
are precluded from review by statute (regardless of whether the action is committed to an agency’s
discretion). Without Section 701(a)(2), courts would determine whether a specific action is reviewable by
interpreting the text of the statute and also, perhaps, “the structure of the statutory scheme, its objectives,
its legislative history, and the nature of the administrative action involved.” But reviewing courts would
not, presumably, explicitly rely on the Court’s “no law to apply” test. Congress could also amend Section
701(a)(2) to provide that it does or does not apply to certain types of actions (e.g., particular types of non-
enforcement decisions). Still, regardless of any legislative modifications, courts may conclude that
constitutional and other considerations make judicial review of some agency actions inappropriate, even if
review is no longer foreclosed by Section 701(a)(2).
Author Information
Daniel J. Sheffner
Legislative Attorney
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