On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:

Judicialreview2.docx

Home >Business & Finance homework help >Management homework help >On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:

Judicial review

Please note that in all Anglophone countries judicial review exists.

However, it differs in subtle ways from country to country.

USA

WHAT IS JUDICIAL REVIEW

Judicial review is an exclusive power of appellate courts, most importantly the US Supreme Court (SCOTUS). It is able to overturn any judicial ruling from another court (at federal or state level) or to strike down any executive action or law deemed unconstitutional.

This is not an express constitutional power - the constitution is vague and open to interpretation in regards to the judicial branch of government - but a power that the court granted itself.

This happened in the case of Marbury vs Madison in 1803, in which SCOTUS overturned congressional legislation. Judicial review is carried out any time that SCOTUS makes a ruling in a case taken on appeal, which is the vast majority of it's cases, and is done so by a vote of the 9 justices. Their vote should in theory reflect the fundamental authority of the constitution and thus uphold constitutional sovereignty in the US, which makes judicial review incredibly important. For example, in the landmark case Brown vs the Board of Education, SCOTUS ruled that segregation on the principle of 'Separate but equal' violated the 14th amendment.

NOTE PLEASE

THUS THE APPROPRIATE COURT CAN OVERTURN THE FOLLOWING:

1. any judicial ruling from another court (at federal or state level) (LOWER COURT).

2. law deemed unconstitutional. THESE ARE REVIEWS OF LEGISLATIVE ACTS (On what topics may congress legislate. See the powers above)

3. or to strike down any executive action THESE ARE REVIEWS OF EXECUTIVE ACTS

Judicial Review of decisions of lower courts

In American Law this is the same as appeals but in some countries appeal and review of lower court judgments can be separate concepts.

Judicial Review of Legislative Acts

In order understand the rules regarding review of legislation it is necessary to understand the two categories of legislation.

The process of making federal laws can divided into two categories:

Primary and Secondary (or delegated or regulatory) legislation:

1. Primary laws - In the United States, primary legislation is, at the federal level, an Act of Congress, and the statute that delegates authority is called an authorizing statute or delegation of rule making authority.

2. regulatory law - (Secondary or subordinate legislation UK terminology) - A law promulgated by the executive branch agency of the United States Government as the result of primary legislation is called a regulatory law, as legislation is used only to refer to acts of the legislative branch, never the executive or the judicial branches. The body of law that governs the agency's exercise of rule-making and adjudication powers is called "administrative law," primarily the Administrative Procedure Act. (we will deal with this under judicial review of executive acts)

Review of Primary laws

Laws of Congress and States and other bodies can be reviewed if they conflict with the constitution as interpreted by the court.

History and Background

Most of the cases which we will consider in this course concern judicial review.

What are the powers of Congress?

Reserved Powers

In the U.S. Constitution, certain specific powers are granted to the federal government. The Constitution reserves all other powers to the states. These are known as “reserved powers.” The reserved powers clause is not found in the body of the Constitution itself, but is part of the Tenth Amendment. To explore this concept, consider the following reserved powers definition.

Implied Powers

Implied powers are the powers held by congress and the president, even though they are not mentioned in the Constitution. These powers, though they are not specified, are necessary in order for the three branches of government to carry out its responsibilities under the enumerated, or stated, powers. Implied powers may also be referred to as “inherent powers,” and are most often exercised in instances of national emergency. (Necessary and Proper Clause)

Enumerated or express Powers

Enumerated Powers are those powers specifically spelled out in the Constitution. These include the powers of Congress, as well as the Powers of the President. These include such powers as those granted in Article I, Section 8:

Concurrent powers

Concurrent powers are powers a federal system of government that are shared by both the federal government and each constituent political unit (such as a state or province). These powers may be exercised simultaneously within the same territory, in relation to the same body of citizens, and regarding the same subject-matter. Concurrent powers are contrasted with reserved powers (not possessed by the federal government) and with exclusive federal powers (possession by the states is forbidden or requires federal permission).

Federal law is supreme, and therefore it may preempt to a state or provincial law in case of conflict. Concurrent powers can therefore be divided into two kinds: those not generally subject to federal preemption (like the power to tax private citizens); and, other concurrent powers.

In the United States, examples of the concurrent powers shared by both the federal and state governments include the power to tax, build roads, establish bankruptcy laws, and to create lower courts.

Example:

Article 1, Sec. 9, Par. 1 of the Constitution, Congress shall have power "to lay and collect taxes, duties, imposts and excises."

Article 1, Sec. 10, Par. 2, "No State shall without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of Congress.

Denied Powers

Not only does the Constitution delegate and divide powers, it denies certain powers to prevent both the federal and state governments from overstepping their bounds. Denied powers are found in Article I, Sections 9 and 10. These include prohibiting the federal government from taxing the exports of any state, or conferring titles of nobility. In addition, the states cannot make treaties or alliances with foreign countries.

What happens when a law conflicts with the constitution?

Is the constitution silent about this or does it give us an answer?

Implied into the constitution. –

Supremacy clause ?

Article VI, Paragraph 2 of the U.S. Constitution

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Necessary and Proper Clause

Under Article I, Section 8 of the Constitution, Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers , and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof".

Marbury v Madison

In the weeks before Thomas Jefferson’s inauguration as president in March 1801, the Federalist Congress created 16 new circuit judgeships (in the Judiciary Act of 1801) and an unspecified number of new judgeships (in the Organic Act), which Adams proceeded to fill with Federalists in an effort to preserve his party’s control of the judiciary and to frustrate the legislative agenda of Jefferson and his Republican (Democratic-Republican) Party. Because he was among the last of those appointments (the so-called “midnight appointments”), William Marbury, a Federalist Party leader from Maryland, did not receive his commission before Jefferson became president. Once in office, Jefferson directed his secretary of state, James Madison, to withhold the commission, and Marbury petitioned the Supreme Court to issue a writ of mandamus to compel Madison to act.

Marbury and his lawyer, former attorney general Charles Lee, argued that signing and sealing the commission completed the transaction and that delivery, in any event, constituted a mere formality. But formality or not, without the actual piece of parchment, Marbury could not enter into the duties of office. Despite Jefferson’s hostility, the court agreed to hear the case, Marbury v. Madison, in its February 1803 term.

Some scholars have questioned whether Marshall should have removed himself from the case because of his prior service as Adams’s secretary of state (1800–01). Certainly, later judicial standards would have called for recusal, but at the time only financial connections to a case led judges to step aside, as Marshall did in suits regarding Virginia lands in which he had an interest. The Republicans, always quick to criticize Marshall, did not even raise the issue of the propriety of his sitting in the case.

The issue directly presented by Marbury v. Madison can only be described as minor. By the time the court heard the case, the wisdom of Jefferson’s desire to reduce the number of justices of the peace had been confirmed (and the Judiciary Act of 1801 had been repealed); Marbury’s original term was almost half over; and most people, Federalists and Republicans alike, considered the case to be moot. But Marshall, despite the political difficulties involved, recognized that he had a perfect case with which to expound a basic principle, judicial review, which would secure the Supreme Court’s primary role in constitutional interpretation.

CRTITAL TO UNDERSTAND – MARBURY WAS LEGALLY CORRECT THAT MARBURY WAS ENTITLED TO HIS COMMISSION BUT HE HAD COME TO THE INCORRECT COURT. WHY INCORRECT? READ THE CASE AND UNDERSTAND

Although he could have held that the proper remedy was a writ of mandamus from the Supreme Court—because the law that had granted the court the power of mandamus in original (rather than appellate) jurisdiction, the Judiciary Act of 1789, was still in effect—he instead declared that the court had no power to issue such a writ, because the relevant provision of the act was unconstitutional. Section 13 of the act, he argued, was inconsistent with Article III, Section 2 of the Constitution, which states in part that “the supreme Court shall have original Jurisdiction” in “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” and that “in all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction.” In thus surrendering the power derived from the 1789 statute (and giving Jefferson a technical victory in the case), Marshall gained for the court a far-more-significant power, that of judicial review.

This is an example of a case where the legislation in question was in conflict with the Constitution and the legislation was therefore struck down by the courts.

On other occasions the congress may pass legislation which exceeds their powers and could be struck down for this reason.

Example (see Federalism handouts for United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995))

ANOTHER EXAMPLE (THIS TIME STATE LAW THAT IS REVIEWED)

The Equal Protection Clause of the constitution is located at the end of Section 1 of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Plessy v. Ferguson (1896).

According to this case laws mandating separate public facilities for whites and African Americans do not violate the equal-protection clause if the facilities are approximately equal.

Brown v. Board of Education of Topeka , case in which on May 17, 1954, the U.S. Supreme Court ruled unanimously (9–0) that racial segregation in public schools violated the Fourteenth Amendment to the Constitution, which prohibits the states from denying equal protection of the laws to any person within their jurisdictions. The decision declared that separate educational facilities for white and African American students were inherently unequal. It thus rejected as inapplicable to public education the “separate but equal” doctrine, advanced by the Supreme Court in Plessy v. Ferguson (1896), according to which laws mandating separate public facilities for whites and African Americans do not violate the equal-protection clause if the facilities are approximately equal. Although the 1954 decision strictly applied only to public schools, it implied that segregation was not permissible in other public facilities. Considered one of the most important rulings in the court’s history, Brown v. Board of Education of Topeka helped to inspire the American civil rights movement of the late 1950s and 1960s.

Judicial Review of Executive Acts

Judge Scalia - [Legislative power] is vested exclusively in Congress [and judicial power] in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish”.... Agencies make rules... and conduct adjudications... and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.

Who is the executive?

The executive carries out laws and consists of the president, vice president, Cabinet, most federal agencies

The United States federal executive departments are the primary units of the executive branch of the Federal government of the United States. They are analogous to ministries common in parliamentary or semi-presidential systems but (the United States being a presidential system) they are led by a head of government who is also the head of state. The executive departments are the administrative arms of the President of the United States. There are currently 15 executive departments each headed by a cabinet member usually called a secretary.

Department of the Interior

Department of Agriculture

Department of Commerce

Department of Labor

Department of Health and Human Services

Department of Housing and Urban Development

Department of Transportation

Department of Energy

Department of Education

Department of Veterans Affairs

Department of Homeland Security

The executive also includes the “agencies” however these are a little more independent of the President. For example:

Environmental Protection Agency

Central Intelligence Agency

What types of executive acts can be reviewed

1. Delegated legislation (In the USA these are called regulatory laws )

2. Executive tribunals

3. Executive decisions

4. Executive Orders (Orders by the President)

1. Review of Regulatory laws

To Further explain

Regulatory Law deals with procedures established by federal, state, and local administrative agencies, as opposed to laws created by the legislature (statutory laws) or by court decisions (case law). Regulations can relate to a large array of executive branch activities, such as applications for licenses, oversight of environmental laws, and administration of social services like welfare, just to name a few.

Functions of Administrative Law

Also known as administrative law, regulatory laws can include everything from rulemaking to adjudication and enforcement. In other words, administrative laws often relate to functions akin to all three branches of government (i.e., legislative, judicial, and executive), but all of them flow from agencies that are considered to be a part of the executive branch. To demonstrate how regulatory law is often like three branches of government in one, consider how administrative laws usually come into being:

1. The legislative branch passes a law authorizing the creation of a new executive branch agency to enforce a set of laws (for example, the Environmental Protection Agency in order to enforce certain environmental clean up and preservation laws).

2. The statute authorizes the agency to pass regulations to meet the goals of its mandate and to enforce its rules. Thus the legislative rulemaking authority is delegated, in part, to the administrative agency.

3. The agency enacts regulations (sometimes they require legislative approval, sometimes they do not), then begins to enforce those rules (e.g., through fining or arrests). The enforcement of laws is a traditionally executive function.

4. The agency may also have procedures for hearings, and the results of those proceedings can become precedent on agency policies. These hearings are akin to the trial procedures for the judicial branch.

While administrative agencies are still a part of the executive branch and are still checked by the other two branches of government, their regulations and enforcement schema often resemble their own subsystem of government, inclusive of functions for all three branches. Consequently, when discussing any law that may be administered by an agency, it is important to look not just to the statutory law or the case law, but also to any regulatory rules and decisions related to that matter. Failing to do so may amount to overlooking an enormous portion of the body of law affecting that topic.

What does this mean:

For example in the USA for environmental law:

Creating a law

Step 1: Congress Writes a Bill

A member of Congress proposes a bill. A bill is a document that, if approved, will become law. To see the text of bills Congress is considering or has considered, go to Congress.gov

Step 2: The President Approves or Vetoes the Bill

If both houses of Congress approve a bill, it goes to the President who has the option to either approve it or veto it. If approved, the new law is called an act or statute. Some of the better-known laws related to the environment are the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act.

Step 3: The Act is Codified in the United States Code

Once an act is passed, the House of Representatives standardizes the text of the law and publishes it in the United States Code (U.S.C.). The U.S.C. is the codification by subject matter of the general and permanent laws of the United States. Since 1926, the U.S.C. has been published every six years. In between editions, annual cumulative supplements are published in order to present the most current information.

United States Code: This database is available from the Government Printing Office (GPO). GPO is the sole agency authorized by the federal government to publish the U.S.C.

Putting the law to work

Once a law is official, here's how it is put into practice: Laws often do not include all the details needed to explain how an individual, business, state or local government, or others might follow the law. The United States Code would not tell you, for example, what the speed limit is in front of your house. In order to make the laws work on a day-to-day level, Congress authorizes certain government agencies - including EPA - to create regulations.

Regulations set specific requirements about what is legal and what isn't. For example, a regulation issued by EPA to implement the Clean Air Act might explain what levels of a pollutant - such as sulfur dioxide - adequately protect human health and the environment. It would tell industries how much sulfur dioxide they can legally emit into the air, and what the penalty will be if they emit too much. Once the regulation is in effect, EPA then works to help Americans comply with the law and to enforce it.

When developing regulations, the first thing we do is ask if a regulation is needed at all. Every regulation is developed under slightly different circumstances, but this is the general process:

Step 1: EPA Proposes a Regulation

The Agency researches the issues and, if necessary, proposes a regulation, also known as a Notice of Proposed Rulemaking (NPRM). The proposal is listed in the Federal Register (FR) so that members of the public can consider it and send their comments to us. The proposed rule and supporting documents are also filed in EPA's official docket on Regulations.gov.

Step 2: EPA Considers Your Comments and Issues a Final Rule

Generally, once the EPA considers the comments received when the proposed regulation was issued, they revise the regulation accordingly and issue a final rule. This final rule is also published in the FR and in EPA's official docket on Regulations.gov.

Step 3: The Regulation is Codified in the Code of Federal Regulations

Once a regulation is completed and has been printed in the FR as a final rule, it is codified when it is added to the Code of Federal Regulations (CFR). The CFR is the official record of all regulations created by the federal government. It is divided into 50 volumes, called titles, each of which focuses on a particular area. Almost all environmental regulations appear in Title 40. The CFR is revised yearly, with one fourth of the volumes updated every three months. Title 40 is revised every July 1

The Clean Air Act (CAA) is the comprehensive federal law that regulates air emissions from stationary and mobile sources. Among other things, this law authorizes EPA to establish National Ambient Air Quality Standards (NAAQS) to protect public health and public welfare and to regulate emissions of hazardous air pollutants.

To illustrate further:

Clean Air Act (Act of Congress) says that the Environmental Protection Agency is to regulate Six Criteria Air Pollutants:

Carbon Monoxide, Ground-level Ozone, Lead, Nitrogen Oxides, Particulate Matter, and Sulfur Dioxide

Regulation says there should only be (regulatory law)

August 1, 1994 9 ppm for carbon monoxide (this is the regulation)

https://www.epa.gov/regulatory-information-topic/regulatory-information-topic-air

2. Executive Courts

Several federal adjudicatory bodies are not widely considered part of the federal judiciary because they are components of an administrative agency or executive branch department. Executive agency adjudication is in response to calls for a more efficient process to promulgate, interpret and enforce federal regulations. More than 1,300 administrative law judges now serve in such bodies. Their powers and roles vary in keeping with the responsibilities of their agencies and departments, but most conduct hearings, issue or recommend decisions and enforce agency regulations.

https://www.fjc.gov/history/courts/executive-agency-courts

There are several federal courts that are not actually part of the judicial branch of government but are part of the executive branch. Congress established these courts to handle specific topics.

U.S. Court of Appeals for Veterans Claims

U.S. Tax Court

U.S. Court of Appeals for the Armed Forces

Additionally, many executive branch agencies such as the Social Security Administration and the Equal Employment Opportunity Commission have administrative judges or administrative law judges.

3. Executive Decisions

Administrative decisions made by government bodies are a fact of life: members of the public are confronted with them all the time. Whenever a citizen applies for a building permit, a driving licence or benefits, or is faced with an environmental enforcement measure, an administrative decision is involved; it is in administrative decisions that government bodies give legal shape to governmental regulations. Administrative decisions are juristic acts;

Administrative decision-making can be described as the application of general rules to individual cases, often in the context of performing public tasks. The administrative decision-making process consists of both administrative activities and legal acts, acts intended to have legal consequences.

4. Executive orders

An executive order is an official statement from the president that tells federal agencies how to enforce and implement federal law. The legal authority for executive orders derives from the Take Care Clause of Article II, § 3 of the federal Constitution, which grants the president broad, unspecific authority by stating, “[The president] shall take care that the laws be faithfully executed.”

Throughout American history, presidents have utilized executive actions to tackle a range of issues. President Abraham Lincoln’s Emancipation Proclamation eventually ended slavery; President Harry Truman issued an executive order establishing the President’s Committee on Equality of Treatment and Opportunity in the Armed Services, ending desegregation in the armed forces; and Clinton issued an executive order revoking the “Gag Rule,” which prohibited abortion counseling in clinics that receive federal funding to serve low-income patients.

The constitutional authority granted to the legislature limits the executive’s domain in an important way. Presidents cannot grant themselves authority they do not have; they cannot create new law, rescind existing law, or appropriate funds from the U.S. Treasury pursuant to executive order. Only Congress has that authority.

However, the president does have the authority to direct the executive branch’s exercise of administrative discretion. The president can also reduce the size of federal agencies, and can prioritize federal governmental actions and the enforcement of federal laws to the extent not otherwise directed by Congress or the judiciary.

Further, the president can rescind a previous executive order by issuing a new one.

As a starting point, it is worth confirming that executive orders are indeed subject to judicial review. While executive orders are not subject to the same checks and balances as Congressional legislation and administrative regulations, federal judges have the authority to strike down orders that violate the Constitution or statutory law.

In evaluating executive orders, the federal courts will apply one of three different standards of review depending upon the nature of the authority underlying the order:

Express or Implied Congressional Authorization – Executive orders that rely on powers delegated by Congress receive the highest level of deference, and have been upheld in most cases.

Independent Executive Authority – Orders that rely on the inherent authority of the executive branch receive an intermediate level of review. When reviewing these types of executive orders, the courts tend to take a facts-and-circumstances approach that sets little precedent for future cases.

Executive Orders Against the Will of Congress – Executive orders that not only lack Congressionally-delegated authority, but actually go against the will of Congress, are subject to the highest standard of review. The courts have the power to strike down such orders unless Congress lacked the authority to take the legislative action offended by the executive order.

Example of an Executive orders set aside by Federal Court

The U.S. Circuit Court of Appeals agreed with a lower court that the executive order which sought to stop federal funds being given to sanctuary cities exceeded the president's authority. Congress alone controls spending under the U.S. Constitution, and presidents do not have the power to withhold funding it approves to pursue their policy goals, the court majority said.

What is a sanctuary city: The term "sanctuary city" is a broad term applied to jurisdictions that have policies in place designed to limit cooperation with or involvement in federal immigration enforcement actions.

City of San Francisco v Trump

https://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/01/17-17478.pdf

"By its plain terms, the executive order directs the agencies of the executive branch to withhold funds appropriated by Congress in order to further the administration's policy objective of punishing cities and counties that adopt so-called 'sanctuary' policies,

Executive orders set aside by Congress: (this is simply out of interest and is not part of judicial review)

“ To effectuate a repeal, Congress need only enact legislation directing that provisions of the executive order “shall not have legal effect.” For example, the Energy Policy Act of 2005 explicitly revoked a December 13, 1912, executive order that had created the Naval Petroleum Reserve Numbered 2. In 1992, Congress similarly revoked an executive order issued by President George H. W. Bush that had directed the Secretary of Health and Human Services to establish a human fetal tissue bank for research” - Congressional Research Service, Executive Orders: Issuance, Modification, and Revocation, Page 9, April 16, 2014.

The Review Process : In brief

What law applies generally?

The Administrative Procedure Act (APA) applies to all executive branch agencies, including so called independent regulatory agencies.

The APA prescribes procedures for agency actions such as

1) rulemaking, as well as

2) standards for judicial review of agency actions.

Who reviews most administrative complaints

An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates the claims or disputes (in other words, ALJ-controlled proceedings are bench trials) involving administrative law.

In terms of the Administrative Procedure Act of 1946 (APA) ALJs are Article I judges under the U.S. Constitution. As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property.

ALJs are generally considered to be part of the executive branch, not the judicial branch, but the APA is designed to guarantee the decisional independence of ALJs.

These decisions may be appealable or themselves reviewable.

Reviews can also be heard by the federal courts in cases involving federal law.

Two distinct issues in order to understand review of Regulatory laws:

1. Substance: was the agency (or branch of executive government) authorized to make rules of this nature. For example, can the Environmental Protection Agencies make laws regarding immigration (obviously not).

2. Procedure: did they follow the correct procedure when making the law.

A regulation can be set aside on either ground.

How do we know what procedure must be followed?

The Administrative Procedure Act (APA), Pub.L. 79–404, 60 Stat. 237, enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. To protect citizens, the APA also grants the judiciary oversight over all agency actions. It is one of the most important pieces of United States administrative law. The Act became law in 1946.

Basic ideas

1. to require agencies to keep the public informed of their organization, procedures and rules;

2. to provide for public participation in the rulemaking process, for instance through public commenting;

3. to establish uniform standards for the conduct of formal rulemaking and adjudication;

Regarding all Agency decisions and Regulatory Laws

The APA provides several types of judicial review that apply unless otherwise specified by statute. With regard to the standards of judicial review of agency action that a court will use to evaluate whether an agency’s action is valid, the APA states:

The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be –

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.