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Chapter 10

PADP 6490 Chapter Notes - Chapter 10: Life Tenure, International Standard Book Number, Jbs Usa

Public Administration and Policy
Course Code
PADP 6490

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PADP 6490 Administrative Law Martinez, Fall 2019
Require Reading 10
Werhan, Keith. Principles of Administrative Law. Third Edition. St. Paul, MN: West Academic
Publishing, 2019. ISBN: 9781640201811.
Werhan Chapter 8, The Nature and Scope of Substantive Judicial Review
I. Types of Judicial Review
(a) Constitutional Review determining whether the enabling act or the administrative
action at issues complies with the Constitution
APA Section 706(2)(B): reviewing courts “shall . . . hold unlawful and set aside
agency action . . . found to be . . . contrary to constitutional right, power, privilege,
or immunity.”
most common issues: separation of powers & procedural due process
(b) Procedural Review determining whether agency’s decision-making procedures
comply with APA, other statutes, & agency's procedural rules
APA Section 706(2)(D): reviewing courts “shall . . . hold unlawful and set aside any
agency action . . . found to be . . . without observance of procedure required by
(c) Substantive Review determining whether agency has appropriately exercised the
substantive authority provided by its enabling act
APA Section 706(2): reviewing courts must ensure agency has acted within the
scope of its statutory authority, that it has adequate support for its factual findings,
& that it has exercised its decision making discretion responsibility
II. Substantive Judicial Review
Challenges to Maintaining a Proper Balance of Judicial Role
(1)“counter-majoritarian difficulty federal judges, with constitutional guarantees
of life tenure & salary, are least accountable decision-makers in the system . . .
creates institutional advantages for courts, enabling them to avoid political pressure
when ruling on legality of controversial agency action
(2)Congress’s delegation of broad regulatory authority to agencies through enabling
acts containing indeterminate standards defining reach of administrative power
(3)indeterminacy of APA standards governing scope of substantive judicial review
(4)judicial review authority assigned to courts of law (rather than specialized
administrative courts), thus generalist judges are reviewing non-legal decisions of
specialist administrators . . . they are technically illiterate

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PADP 6490 Administrative Law Martinez, Fall 2019
(5)also "fosters democratic accountability of agency decision makers by obligating
them to make a public explanation of their decisions that the interested public can
understand & accept as legitimate”
Framework of Substantive Judicial Review
- Constituted by Principles (Chenery I & Chenery II) Congress entrusted
agencies, not reviewing courts, with primary role of deciding how best to
administer an enabling act
- courts determine validity of agency action by considering only “the grounds upon
which the [agency] itself based its action”
- if courts holds those grounds to be “inadequate or improper,” court may not
uphold agency action “by substituting what it considers to be a more adequate or
proper basis” . . . must remand to agency (Vermont Yankee)
Ignorance of Chenery & Remand to Court
- Supreme Court remanded to District Court for a substantive review of the
administrative record (trial remedy), agencies must provide contemporaneous
explanation of their decisions
III. The Administrative Record
“fundamental principle of judicial review”
task of reviewing court is to apply the appropriate APA standard of review to agency
decision based on the record the agency presents to the reviewing court
reviewing courts uniformly & generally
submission of administrative record of an informal agency proceeding often not so
straightforward . . .
APA does not require agencies base decisions in informal proceedings on a “focused and defined
record” . . . agencies must assemble an administrative record”
reviewing courts uniformly required record include
all submissions by interested parties during proceeding that agency was require to consider
all other material that agency decision-makers & staff actually considered in making their
deliberative process privilege cover agency’s “internal memoranda embodying the
deliberative processes of the agency & its staff”
Elements of Agency Decision-Making
administrative law divides agency decision-making into 3 elements & prescribed distinct
standard of review for each element
APA Section 557(c)(A) describes elements as involving agency decisions on questions of (1)
fact, (2) law, & (3) discretion
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