Preclusion of Judicial Review

Question 1

Bagley Reading

Answer 1

• argues APA simply imposes default rule favoring review
• argues on some level judicial review shifts things towards lawyers + away from policymakers -> danger that agencies thinking about judicial review in advance might then be influenced by legal concerns rather than making the best policy choices
  -> under this reading, precluding review might be a better policy for Congress to adopt
• additional aspect of making sure Congress has power to chose remedies – Congress has more democratic legitimacy + better sense of how to trade off different values -> might wind up with better outcomes + better policies if Congress takes more advantage of precluding judicial review

Question 2

Bowie + Renan Reading

Answer 2

• Most important interpretation of the Constitution comes from the people through their representatives – Court is not democratically accountable, we shouldn’t look to them for definitive interpretations
• Historical link – original impulse to go in that direction
• Quality of participation for public and members of Congress – concept that taking away court’s power to decide these things might make people more actively push for Congressional change/action
• Court’s role has made us lazy in our own democracy
• review makes legislators timid – think about court challenges in advance, potentially moderating impact on policy

Question 3

Bowen v. Michigan Academy of Family Physicians - Facts

Answer 3

• 1986
• statute explicitly allows judicial review of Part A Medicare determinations, + only mentions review of Part B determinations by the carrier
• regulation regarding Part B determinations being challenged

Question 4

Bowen - Gov Args

Answer 4

• implied preclusion - Part A says courthouse door open very clearly -> the contrast between this + Part B shows no judicial review allowed
• express preclusion - there’s also something in the text saying “No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.”

Question 5

Bowen - Decision

Answer 5

• no preclusion
• rejects 1st argument - strong presumption of judicial review, drawing a convoluted inference is not enough to overcome this
• 2nd argument - even if you have all of these words, court is going to look back at what other evidence there is of what Congress meant to do, whether it meant to preclude review
  -> logic argument – “would be an extreme position” to say Congress meant to provide avenue for trivial positions but not the more significant decisions like the one in this case (how to treat board-certified physician vs. non-board-certified physician)
  -> Prof noted though logoc somewhat trumping text

Question 6

Cuozzo Speed Technologies LLC v. Lee

Answer 6

• 2016
• court finds preclusion
• statute says decision “final and non-reviewable”, but still need to look at legislative history + inferences of intent drawn from statutory scheme as a whole on TOP of the clear + convincing language
  -> Prof driving home the point that there is a VERY strong presumption of judicial reviewability

Question 7

Where Decisions Are Committed to Agency Discretion

Answer 7

• Heckler v. Cheney – agency decision not to prosecute or enforce is a decision generally committed to an agency’s discretion
• Webster v. Doe - standard exuding deference (seems like also nat sec though)
• Lincoln v. Vigil

Question 8

Webster v. Doe

Answer 8

• case w/ CIA officer
• court argues one of those rare instances in which statutes drawn in such broad terms that in a given case there is no law to apply
• court says Statute precludes judicial review under (a)(2) – says in Director’s discretion
  -> national security context hangs over this decision
  -> if you look at text of statute, court finds hook for being able to avoid applying the necessary and advisable standard – statute gives director discretion to deem these judgments into existence -> court says the word “deem” exudes deference (there’s kind of a standard, but it’s really one that exudes deference in ct’s view, though also more about nat sec practically speaking)

Question 9

Lincoln v. Vigil

Answer 9

• lump sum appropriations committed to agency discretion
• Prof noted doesn’t often happen though - Congress often dictates how it would like the money to be spent