Lisa Schultz Bressman


Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State

Lisa Schultz Bressman

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation—the President. This Article contends that the “presidential control” model cannot legitimate agencies because the model rests on a mistaken assumption about the sufficiency of political accountability for that purpose. The assumption resonates with the premise, familiar in constitutional theory, that majoritarianism is the hallmark of legitimate government. This premise, brought to the fore by Alexander Bickel, now is questioned among constitutional theorists. Moreover, majoritarianism is not enough to legitimate administrative decisionmaking under our constitutional structure for the reason that it does not reliably address the concern for arbitrariness. This Article argues for a more direct focus on the concern for arbitrariness—an approach that has at its core a concern for good government, not simply “accountable” government in the post-Bickel, majoritarian sense of that word. The Article demonstrates how a more direct approach suggests new possibilities for resolving the time-honored problem of agency legitimacy and new ways of understanding the perennial puzzles of administrative law.

Judicial Review of Agency Inaction: An Arbitrariness Approach

Lisa Schultz Bressman

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court’s reluctance to allow judicial review of agency inaction reflects the popular view that agency decisionmaking should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decisionmaking reject the Court’s treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the administrative state are dedicated not only to promoting political accountability, but also to preventing administrative arbitrariness–and reserve a role for judicial review toward that end. This Article shows that agency inaction raises a concern for administrative arbitrariness because it is susceptible to the same narrow influences that derail agency action from public purposes. Agency inaction that reflects such influences, though often rational from a political standpoint, nonetheless is arbitrary and objectionable from a democratic perspective.

This Article therefore suggests that courts eschew any special prohibitions on judicial review of agency inaction, and instead subject agency inaction to the same principles of judicial review that apply to agency action. It proposes changes to the two doctrines that most frequently block judicial review of agency inaction: nonreviewability and standing. Furthermore, it recommends that courts carve any exceptions to judicial review for agency inaction from established constitutional law principles. It argues that nonreviewability should be understood as an analogue to political question doctrine, precluding courts from policing conduct committed to the unfettered discretion of administrative officials. Similarly, it argues that standing should be understood as an analogue to non delegation doctrine, precluding Congress through citizen-suit provisions from effectively delegating policymaking power to private parties. More broadly, this Article argues that both nonreviewability and standing should be viewed as links to separation of powers doctrine, barring courts from hearing challenges to the generalized manner in which agencies perform their jobs. In offering these analogies, this Article credits the Supreme Court’s intuition that important constitutional values place some enforcement discretion beyond the reach of judicial review-even if Congress disagrees. But it recommends using established separation of powers principles to constrain this intuition from producing doctrines that subvert the prevention of arbitrary agency decisionmaking.