Preclusion of Judicial Review

Congress has a great deal of control over judicial review of agency action. As we saw in the last several subsections, it can define the standard of review in ways that make review more or less deferential. Perhaps surprisingly, it also can simply say that courts have no power to review agency decisions at all. Indeed, the entire apparatus of judicial review of agency action is optional--Congress could decide to zero out the entire thing tomorrow if it wanted to (the exception would be review of constitutional questions arising from agency action, which are likely not completely susceptible to jurisdiction stripping).

While Congress has so far not elected to eliminate judicial review of agency action under the APA, it has carved out some questions that courts cannot reach. A major question in litigation of agency action is whether Congress has expressly or implicitly precluded judicial review in certain situations. This casebook groups these questions into three categories: 1) statutory preclusion, 2) commission to agency discretion, and 3) certain forms of agency inaction.

As you will see, while courts employ a "presumption of reviewability" that is supposed to put a thumb on the scale in favor of retaining judicial review of agency action, see Abbott Labs v. Gardner, 387 U.S. 136, 140 (1967), this presumption is often rebutted or limited by countervailing presumptions against judicial review. Following what, exactly, is precluded and what is not is a difficult enterprise that the courts continue to struggle with to this very day.