Week 5-Explore the Impact of Administrative Accountability and Week 6 - Assess the Oversight Functions of Administrative Rulemaking

REGULATORY HIDE AND SEEK: WHAT AGENCIES CAN (AND CAN'T) DO TO

LIMIT JUDICIAL REVIEW

BRYAN C L A R K *

A M A N D A C . L E I T E R * *

Abstract: Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies' role in modulating that oversight. We consider cases in which the timing or form of an agency ac- tion has curtailed judicial review of the agency's policy choices. In some such cases, the agency's choice of form deprived the court of statutory or Article III jurisdiction. In others, the court chose to delay or deny review to avoid interfering with agency policy development. Despite these differ- ences, though, all such "reviewability" cases pose important constitutional questions about the degree to which an agency should be able to limit judi- cial oversight of its activities. We argue that courts pay too little attention to these questions, and we propose a more systematic framework for evaluat- ing the constitutional implications of allowing an agency to modulate the availability of judicial review by manipulating the structure of its actions.

I N T R O D U C T I O N

The "dominant narrative of modern administrative law" states that courts are "key players who help tame, and thereby legitimate, the ex- ercise of administrative power."i This narrative underlies the U.S. Su-

© 2011, Bryan Clark & Amanda C. Leiter. * Law Clerk, U.S. District Court for the District of Kansas. J.D., Catholic University,

2010, summa cum laude. I would like to thank Professor Leiter for inviting me to join her iri this venture.

** Associate Professor of Law, American University's Washington College of Law. Many thanks to Catholic University's Columbus School of Law and Dean Veryl Miles for support- ing this work. Thanks also to Judith Childers, Louis Cohen, Cara Drinan, Amanda Frost, RonNell Andersen Jones, Megan La Belle, James Merrill, Caprice Roberts, Sam Sankar, Glen Staszewski, Robert Tsai, and David Zaring for, in varying measures, terrific research assistance, sound advice, good insights, and honest edits.

' M. Elizabeth Magill, Agency Choice of PolicymakingForm, 71 U. C H I . L. REV. 1383, 1413 (2004); .see also Louis L.JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 320 (1965) ('The availability of judicial review is the necessary condition, psychologically if not logi- cally, of a system of administrative power which purports to be legitimate, or legally va- lid."); Cynthia R. Farina, The Consent of the Covemed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 1023 (1997) (stating that judicial review has the potential to "conu-ibut[e] . . . to the legitimation of the regulatory process"); Elena Kagan, Presidential

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preme Court's familiar "presumption favoring judicial review of admin- istrative action."2 The narrative also explains the Court's viscerally nega- tive reaction to the suggestion, in the 2010 case Kucana v. Holder,^ that ambiguous language in the Immigration and Nationality Act (INA) should be read to delegate to the Attorney General the authority to shield certain of his asylum decisions from court review.* Such an "ex- traordinary delegation," the Kucana Court said, would give "the Execu- tive . . . a free hand to shelter its own decisions from abuse-of-discretion appellate court" oversight.^ Lower courts, too, have objected to the seeming irregularity of permitting agencies to shelter their decisions from review. The U.S. Court of Appeals for the Eleventh Circuit, for example, has stated (without citation) that it is "axiomatic" that Con- gress cannot delegate to an agency the power "to oust state courts and federal district courts of subject matter jurisdiction."^ If agencies could hide their actions from judicial oversight, the dominant narrative asks, what would ensure the fundamental lawfulness of those actions?

Anyone familiar with the convoluted question of "reviewability"' in administrative law must acknowledge, though, that agencies regularly act in ways that either restrict courts'jurisdiction or otherwise limit ju- dicial review. In other words, agencies frequently do "shelter [their] own decisions" from court oversight.^ More curiously, in reviewability cases, in contrast to statutory interpretation cases like Kucana, courts often acquiesce in the resulting curtailment of their purview.̂

Administration, 114 HARV. L. REV. 2245, 2350 (2001) (identifying "judicial review" as "a simple, if somedmes imperfect, solution to the problem" of presidential lawlessness).

2 Kucana v. Holder, 130 S. Ct. 827, 839 (2010); .see also Guderrez de Martinez v. La- magno, 515 U.S. 417, 434 (1995) (recognizing the presumption); Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63-64 (1993) (same); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) (nodng the "well-settled presumpdon favoring interpretations of stattites that allow judicial review of administrative acdon"); Bowen v. Mich. Acad. of Fam- ily Physicians, 476 U.S. 667, 670 (1986) (invoking the presumption); Abbott Labs. v. Gard- ner, 387 U.S. 136, 140 (1967) (same).

' 130 S. Ct. at 839-40. One of the authors, Amanda C. Leiter, was appointed by the Court to serve as Amicus Curiae in Support of the Judgment Below for this case.

•• Immigration and Nationality Act, ch. 477, 66 Stat. 163 (1952) (codified as amended in 8 U.S.C. §§ 1101-1537 (2006)).

5 Kucana, 130 S. Ct. at 839-40. ^ Miller V. FCC, 66 F.3d 1140, 1144 (11th Cir. 1995); iee also Carlyle Towers Condo.

Ass'n V. FDIC, 170 E3d 301, 310 (2d Cir. 1999) ("[I]t is 'axiomatic' that agencies can nei- ther grant nor curtail federal court jurisdiction . . . . " ) . But iee Owens v. Republic of Sudan, 531 F.3d 884, 890 (D.C. Cir. 2008) (rejecting the Eleventh Circuit's "axiomatic" dicta).

' See generally RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 1217-1400 (5th ed. 2010) (discussing reviewability doctrines).

8 Kucana, 130 S. Ct. at 839-40. 9 See infra notes 133-248 and accompanying text.

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Tbree examples prove tbis point. Eirst, "[g]enerally speaking, it is mucb more difficult for plaintiffs to obtain judicial review of agency inaction . . . tban of agency action."!" Yet tbe decision to refrain from regulating or taking an enforcement action does as mucb to delimit tbe relevant statutory and regulatory regime as would any reviewable rule- making or prosecution. Consider, for example, tbe paradigmatic inac- tion case of Heckler v. Chaney, decided by tbe Supreme Court in 1985." In Heckler, tbe Eood and Drug Administration (EDA) decided not to enforce tbe Eood, Drug, and Cosmetic Act's (EDCA) "misbranding" provisions, wbicb probibit tbe "unapproved use of an approved drug," against two states tbat were using otberwise-approved drugs in prison executions witbout EDA approval.i2 Tbe Supreme Court declared tbe EDA's non-enforcement decision "presumptively unreviewable.''̂ ^ Plain- ly, tbougb, tbe agency's cboice not to enforce tbe misbranding provi- sions in tbe execution context embodied substantive decisions about enforcement priorities and, in turn, about tbe limits of tbe provisions' reacb. As a practical matter, a statute's probibitions extend only as far as tbe implementing agency is prepared to enforce tbem. As Heckler xmkes, clear, tberefore, agencies sbield some policy cboices from judicial over- sigbt wben tbey decline to act.̂ ^

Second, some statutes permit agencies to establisb administrative review scbemes tbat must be exbausted before an affected individual may obtain judicial review. Under tbe Prison Litigation Reform Act (PLRA), for example, an inmate wbo asserts tbat prison officials bave violated bis civil rigbts must exbaust any applicable prison review pro- cedures before be may file suit in federal court, î If be fails to exbaust

'" Eric Biber, Txuo Sides of the Same Coin: Judidal Review of Administrative Agency Action and Inaction, 26 VA, ENVTL, LJ, 461, 465 (2008); iee Jacob E. Gersen & Anne Joseph O'Connell, Hiding in Plain Sight? Timing and Transparency in the Administrative State, 76 U, C H I , L , REV, 1157, 1188 (2009) ("Although agency inaction is sometimes grounds for legal challenge, in practice it is extremely difficttlt to drag an agency into court to defend its policymaking reticence,"); ,see also Heckler v, Chaney, 470 U,S, 821, 832-33 (1985) ("[AJn agency's deci- sion not to take enforcement action should be presumed immune from judicial review under [section] 701 (a) (2) [of the Administrative Procedure Act],"), But ,see Massachttsetts V, EPA, 549 U,S, 497, 527-28 (2007) (reviewing the EPA's denial of a petition for rulemak- ing),

" 470 U.S. at 823-24, >2 Id. (citing a prior version of 21 U,S,C, § 352(f)), '3 Id. at 832-33, '•* See id. See generally Lisa Schultz Bressman, Judicial Reoiew of Agency Inaction: An Arbi-

trariness Approach, 79 N,Y,U, L, REV, 1657 (2004) (arguing that current law on agency inac- tion allows agencies to shelter arbitrary decisions from outside oversight),

'5 Woodford v, Ngo, 548 U,S, 81, 93 (2006) (citing a prior version of 42 U,S C §1997e(a)).

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these remedies within applicable time limits, he may find himself per- manentiy barred from obtaining federal court review of his civil rights claim.is Thus, agencies can (and do) curtail court review of their ac- tions by establishing administrative review procedures that are suffi- cientiy onerous (without violating due process protections^^) to dis- suade or bar some claimants.^^

Finally, some statutes restrict the categories of agency action that courts may review. For instance, the Administrative Procedure Act (APA) and numerous substantive statutes limit judicial review to final agency actions.i9 Other statutes are still more restrictive. The Atomic Energy Act (AEA), for example, limits review to final Nuclear Regula- tory Commission decisions "granting, suspending, revoking, or amend- ing" a nuclear power facilify's license or construction permit.20 Under provisions like these, "[t]he form of the regulatory action dictates the

'6 M " A state bureau of prisons that attempted to curtail judicial review by establishing an

absurdly onerous administrative exhaustion precondition—such as a requirement to file any administrative grievance within an hour of an alleged civil rights abuse—would pre- stimably run afoul of the U.S. Constitution's Dtie Process Clause. See U.S. CONST, amend. XrV, § 1. The Ngo majority declined to reach this question, but it did not take issue with the fifteen-working-day period of limitations imposed under California law. 548 U.S. at 86, 102-03.

Respondent contends that requiring proper exhaustion will lead prison ad- ministrators to devise procedural requirements that are designed to trap un- wary prisoners and thus to defeat their claims. . . . [W]ith respect to the pos- sibilify that prisons might create procedural requirements for the purpose of tripping up all but the most skillful prisoners, while Congress repealed the "plain, speedy, and effective" standard, we have no occasion here to decide how such situations might be addressed.

Id. at 102-03 (citation omitted). '8 See id. at 118 (Stevens, J., dissendng).

[T]he Court's engraftment of a procedtiral default sanction into the PLRA's exhaustion requirement risks barring [meritoriotis] claims when a prisoner fails, inter alia, to file her grievance (perhaps because she correctly fears re- taliation) within strict time requirements that are generally no more than 15 days, and that, in nine States, are between 2 and 5 days.

/d. (footnotes omitted). '9 5 U.S.C. § 704 (2006) (APA finalify requirement); .see also 8 U.S.C. § 1252 (2006)

(Immigration and Nationality Act finality requirement for review of removal orders); 10 U.S.C. § 950g(a) (2006 & Supp. Ill 2009) (Military Commissions Act finality requirement); 42 U.S.C. §2239 (2006) (Atomic Energy Act finality requirement); 42 U.S.C. §405(g) (Social Sectirify Act finalify reqtiirement).

2" 42 U.S.C. § 2239(a), (b)(l); ieeNatural Res. Def. Council v. U.S. Nuclear Regtilatory Comm'n, 680 F.2d 810, 815 (D.C. Cir. 1982).

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. . . avaüability and nature of judicial review. ""2' As a result, the imple- menting agency can choose to begin policy development via ostensibly unreviewable forms of action, thereby potentially "immunizing its law- making from judicial review. "̂ ^

Indeed, the facts of some reviewabüity cases in this third category strongly suggest that the agency deliberately sought to insulate its policy choices from court oversight. For example, in Reckitt Benckiser, Inc. v. EPA, decided by the U.S. Court of Appeals for the D.C, Circuit in 2010, the Fnvironmental Protection j^ency (FPA) sent a letter to pesticide manufacturer Reckitt Benckiser, Inc. ("Reckitt""), stating that, unless the company made various safety-enhancing changes to the marketing, packaging, and distribution of its rodenticides, the products "would be considered misbranded" under the Federal Insecdcide, Fungicide, and Rodenticide Act (FIFRA) beginning in June 2011,̂ 3 Reckitt sued, claim- ing the EPA had no authority to issue such a threat without first cancel- ling the registration of the rodenticides—a move that would have re- quired the agency to prove its case before an administrative law judge and then a federal court of appeals.̂ ^ Responding to Reckitt"s suit, the EPA asserted that its inidal warning letter was neither final nor ripe for review.25 The EPA thus sought a regulatory outcome (changes to Reck- itt"s products), and made two strategic moves in an effort to insulate its regulatory activities from court oversight: first proceeding via a warning letter rather than a cancelladon hearing, and then arguing that the let- ter itself was unreviewable because it was nonfinal and unripe.^^

As these three examples ülustrate, reviewabüity doctrines enable agencies to wield significant de facto control over the scope of court oversight. Yet this control is in some tension with both due process principles'^ and the "[s]eparation-of-powers concerns"" that "cau- tion [ed]"' the Kucana Court "against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain, "'s

2' Magill, supranote 1, at 1420. 22 Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (concluding diat

the EPA's Periodic Monitoring Guidance, which set out certain requirements for Tide V permits issued under the Clean Air Act, was final and reviewable despite its "Guidance" tide).

23 613 F.3d 1131, 1133 (D.C. Cir. 2010). 24/¿.at 1134. 25/d. at 1136. 26 M 2'iVg-o, 548 U.S. at 102-03. 28 130 S. Ct. at 834.

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To be sure, reviewability doctrines differ in the degree to which they curtail judicial authority,29 and in the consequences of that curtail- ment for regulated entities and concerned third parties.^^ Moreover, some courts are wise to agency maneuvering and exert oversight author- ity despite the seemingly unreviewable form or timing of the agency's action. In Reckitt, for example, the D.C. Circuit ultimately deemed the EPA's warning letter both final and ripe despite its epistolary form.^' Similarly, in a 2000 case, Appalachian Power Co. v. EPA, the D.C. Circuit reviewed an EPA Clean Air Act Guidance despite the apparendy non- binding and nonfinal form of the document (which had not undergone notice-and-comment rulemaking) .̂ 2 The tenor of the Appalachian Power opinion is quite telling—although the court purported to apply the tra- ditional finality inquiry, it prefaced its discussion with a lengthy critique of agency efforts to evade APA procedural requirements and judicial review provisions.

The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regu- lations containing broad language, open-ended phrases, am- biguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, inter- preting, defining and often expanding the commands in the regulations. . . . Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. . . . An agency operating in this way gains a large advantage. "It can issue or amend its real rules . . . quickly and inexpensively without following any statutorily prescribed procedures." The

28 See, e.g-.. Amador Cnty. v. Salazar, 640 F.3d 373, 380 (D.C. Cir. 2011) (noting that the statutory provisions barring review work to strip courts of jtirisdiction, whereas the APA's "committed to agency discretion limitation and the final agency action requirement are ' n o t . . .jurisdictional bar[s]'" (quoting Oryszak v. Sullivan, 576 F.3d 522, 524-26 (D.C. Cir. 2009)) (citing Block v. Cmty. Nutrition Inst., 467 U.S. 340, 353 n.4 (1984) and Ass'n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 283 F.3d 339, 341 (D.C. Cir. 2002))).

'" The exhaustion doctrine, for example, bars review only if the aggrieved party fails to take advantage of whatever administrative procedures the agency has created.

3> Reckitt, 613 F.3d at 1140. The court then left it to the district judge to decide whether FIFRA permits the EPA to "bring enforcement proceedings for misbranding before, or rather than, regulatory cancellation proceedings " Id. at 1141.

32 208 F.3d 1015, 1020 (D.C. Cir. 2000).

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agency may also think there is another advantage—immunizing its lawmaking from judicial review.^^

Plainly, the court felt that allowing agencies to achieve significant regu- latory outcomes via a string of "unreviewable" actions would defeat ad- ministrative law's ideals of openness, participation, and oversight.*'*

As Reckitt and Appalachian Power make clear, reviewability doctrines are malleable, and agencies and courts alike can manipulate the doc- trines to achieve widely varying levels of policy oversight.*^ The net re- sult is an unpredictable and ad hoc process in which protection of se- paration of powers and due process principles depends on the relative willingness of agency policymakers (who determine the timing and form of an agency's actions) and judges (who decide whether to acqui- esce in an agency's reviewability objection or instead to assert oversight authority). In light of "the importance of maintaining a uniform ap- proach to judicial review of administrative action,"*^ we argue that courts need a more systematic framework to evaluate the constitutional implications of an agency's efforts to structure its actions so as to limit court oversight.*''

In Part I, we outline such a framework, identifying four constitu- tional issues that lurk in all reviewability cases.*^ Three issues stem from separation of powers principles (we term these "Article III infringe- ment," "nondelegation," and "underdelegation"), while one derives from the due process right (we term this "individual rights infringe-

33 Id. (emphasis added) (quodng Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 85 (1995)).

^Id. 35 See Reckitt, 613 E3d at 1140; Appalachian Poxoer, 208 E3d at 1020. 3" Mayo Found, for Med. Educ. & Research v. United States, 131 S. Ct. 704, 707 (2011)

(alteradons in original) (quoting Dickinson v. Zurko, 527 U. S. 150, 154 (1999)) (discuss- ing the proper standard for reviewing Treasury Department regulations). Although the Mayo Court was extolling the virtue of maintaining a uniform standard of review across regulatory subject areas, there is equal value in maintaining uniform standards for deter- mining whether such review is available at all.

" Indeed, except in rare cases like Kucana that squarely present the issue, courts in re- viewability cases almost never expressly consider whether consdtudonal principles like separadon of powers and due process permit an agency to curtail court oversight. Instead, judges focus their attention on whichever narrow reviewability doctrines apply in the par- dcular case, endrely ignoring the fact that the invocation and applicability of those doc- trines are largely within the agency's control. See, e.g., Norton v. S. Utah Wilderness Alli- ance, 542 U.S. 55, 69 (2004) (focusing on reviewability of Bureau of Land Management's failure to regulate off-road vehicle use in certain wilderness study areas); Ohio Eorestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 728-32 (1998) (focusing on ripeness of plaintiffs' challenge to a U.S. Forest Service Land and Resource Management Plan).

38 See infra notes 49-132 and accompanying text.

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ment"). Tben, in Part II, we turn our attention to a more tbeoretical question: if agencies regularly manipulate tbe form of tbeir actions to "immuniz[e] [tbeir] lawmaking from judicial review, "̂ ^ wbat remains of tbe claim tbat courts are "key players wbo belp tame, and tbereby le- gitimate, tbe exercise of administrative power"?*" To sbed some ligbt on tbis question, we apply our rubric to tbree recent reviewability cases: (1) Norton v. Southern Utah Wilderness Alliance {SUWA),^^ a 2004 case in wbicb tbe Supreme Court refused to review tbe Bureau of Land Man- agement's (BLM) failure to regulate off-road vebicle use on pristine federal lands in Utab; (2) OhioEarestry Ass'n v. Sierra Club,*^ a 1998 case in wbicb tbe Supreme Court flesbed out aspects of tbe ripeness doc- trine in tbe context of a dispute about a management plan for Obio's Wayne National Eorest; and (3) Amador County v. Salazar,'^^ a 2011 case in wbicb tbe D.C. Circuit disagreed witb tbe Secretary of tbe Interior about tbe reviewability of tbe Secretary's "'no-action' approval" of an Indian gaming compact.**

Our analysis of tbese decisions suggests, counterintuitively, tbat agency manipulation of reviewability doctrines may pose a greater tbreat to congressional autbority and executive legitimacy tban to judi- cial autbority. Wbere Congress bas created an administrative regime tbat relies on judicial review for its legitimacy, as in tbe National Eorest Management Act (NEMA), an agency tbat invokes reviewability doc- trines to evade court oversigbt undermines tbat legislative vision and, in turn, erodes tbe constitutional foundation for tbe agency's own ac-

As a remedy for tbis and tbe otber potential constitutional infirmi- ties tbat lurk in reviewability cases, we suggest tbat federal courts evalu- ating a reviewability objection in an administrative law case sbould rou- tinely consider tbe separation of powers and due process implications of delaying or denying review. In tbe majority of reviewability cases, ap- plication of tbis rubric would be quite simple, and tbe outcome of tbé case would not cbange. As we discuss below, tbe relevant constitutional concerns are rarely implicated. Yet applying tbe rubric would not be an

3!» Appalachian Power, 208 F,3d at 1020, ''° Magill, supra note 1, at 1413; ,see infra notes 133-249 and accompanying text, ti 542 U,S, at 69, « 523 U,S, at 733, 43 640 F,3d at 380, « Id. at 373, « National Forest Management Act of 1976, Pub, L, No, 94-588, 90 Stat, 2949 (codi-

fied as amended in scattered portions of 16 U.S.C, (2006)),

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empfy exercise. Heretofore, courts have largely deferred to agencies' decisions about the form and timing of their actions—even in cases in which those decisions have the consequence of deferring or precluding review.

Like the clear statement rule adopted in Kucana,*^ our rubric would ensure that courts think twice before allowing an agency to "immu- niz[e] its lawmaking from judicial review."̂ ^ Further, the rubric would provide a sounder footing for decisions like Appalachian Power, in which courts choose to assert oversight authorify despite the ostensibly unre- viewable form or timing of the agency's action.'*^

I. THE CONSTITUTIONAL CONCERNS LURKING IN REVIEWABILITY CASES

We posit that executive curtailment of judicial review raises four possible constitutional problems. The first three, which we call "Article III infringement," "nondelegation," and "underdelegation," arise from separation of powers principles and correspond to each of the three branches of government—Judicial, Legislative, and Executive, respec- tively—^whose powers might be infringed or improperly aggrandized by allowing the form or timing of an agency's action to affect the scope of judicial review. Specifically, Article III infringement covers that narrow class of cases in which an agency's curtailment of the scope of judicial review encroaches on some constitutionally irreducible power of the federal courts.*9 Nondelegation, on the other hand, encompasses two potential congressional misdeeds: (1) delegation of "the wrong kind of power, i.e., 'non-Executive' power"; or (2) delegation of "too much power. "̂ 0 Finally, underdelegation applies to administrative regimes that rely on judicial review of agency action for their legitimacy. When Congress has created such a regime, we contend, an agency that struc- tures its actions so as to curtail or evade review exceeds its statutory mandate and delegitimizes the applicable regime.

The fourth potential constitutional problem, which we term "indi- vidual rights infringement," arises not from the structure of govern- ment but from the rights of an individual plaintiff, offended by an agency's action but unable to obtain court review. Sometimes, the bar-

« 1 3 0 S . Ct. at834. •" Appalachian Power, 208 F.3d at 1020.

*^ But iee Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 HARV. L . REV. 869, 874 (2011) (noting that "[m]any commentators have concluded, based on the text and structure of Article III, that" Congress's authority to restrict federal court jurisdic- tion is "plenary").

50 Clinton V. City of New York, 524 U.S. 417, 480 (1998) (Breyer, J.. dissenting).

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rier to review of the plaintiffs claim derives from Article III or pruden- tial limits on judicial interference with the execution of the laws (as with a plaintiff who lacks standing to pursue claims).^' In other review- abüity cases, though, the individual or entity injured by agency action may have a due process right of access to the courts that the Executive may not constitutionally abridge.^^

A, Article III Infringement

In evaluating an agency's claim that something it did (or left un- done) is unreviewable, the most obvious separation of powers question is whether acceding to the agency's request to curtaü review would in- fringe on some constitutionally irreducible power of the federal courts. We label this possibüity "Article III infringement."^^ (The conceptually distinct issue of whether it is appropriate for the Executive—rather than

5' See, e.g.. Summers v. Eartb Island Inst., 129 S. Ct. 1142, 1148-49 (2009) (noting tbat the standing inquiry "reflect[s] [a] fundamental limitation" on the power of the federal courts, constraining them to "redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law," not to "review and revise legislative and executive action"). But see, e,g,, Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement^ 78 YALE LJ. 816, 817-18 (1969); Heather Elliott, Congress's In- ability to Solve Standing Problems, 91 B.U. L. REV. 159, 168 n.39 (2011) (noting that "a num- ber of scholars have demonstrated that [the standing doctrine's] strict limitations to access to the courts would have been foreign to the Founders" (citing Cass R. Sunstein, 'What's Standing Afier Lujan? Of Citizen Suits, "Injuries," and Article IH, 91 MICH. L. REV. 163, 170-79 (1992))); George Van Cleve, Congressional Power to Confer Broad Citizen Standing in Environ- mental Cases, 29 ENVTL. L. REP. 10,028, 10,034-37 (1999).

52 The Supreme Court has recently observed, for example, that a U.S. citizen is enti- ded to "make his way to court with a challenge to the factual basis for his detention by his Government," even if that citizen is detained as an enemy combatant. Hamdi v. Rumsfeld, 542 U.S. 507, 536-37 (2004); .see also South Carolina v. Regan, 465 U.S. 367, 393 (1984) (O'Connor, J., concurring in the judgment) (noting that "Congress cannot, consistentiy with due process, deny a taxpayer with property rights at stake all opportunity for an ulti- mate judicial determination of the legality of a tax assessment against him").

53 There is, of course, a different sort of Article III problem tbat could arise in some reviewability cases: a court's decision to deny review of an agency's action could, in theory, infringe a plaintiffs "'right to have claims decided before judges wbo are free from poten- tial domination by other brancbes of government.'" Commodity Futures Trading Comm'n V. Schor, 478 U.S. 833, 848 (1986) (quoting United States v. Will, 449 U.S. 200, 218 (1980)). That is, there could be an individual Article III right distinct from the structural right. That said, the Court has had "litde occasion to discuss the nature or significance" of this individual Article III safeguard. Id. We therefore assume, for purposes of this Article, that if Article III does indeed bestow an individual right of access to the courts in some cases, that right is adequately protected by enforcing the individual's due process rights, on the one hand, and Article Ill's structural protections, on the other. The latter is the subject of the present discussion; the former is discussed below. See infra notes 113-132 and accompanying text.

2011] Wliat Agenäes Can (and Can't) Do to Limit Judiäal Review 1697

Congress—to wield authority over court jurisdiction is addressed below under "Nondelegation.")

Whether federal courts enjoy a constitutionally protected domain is a subject of longstanding debate.^* The "traditional view"̂ ^ contends that the text of Article III—specifically (1) the Exceptions and Regula- tions Clause, which subjects the Supreme Court's appellate jurisdiction to "such Exceptions, and . . . Regulations as the Congress shall make";̂ ^ and (2) the belitding reference in Section 1 to "such inferior courts as the Congress may from time to time ordain and establish"^^—gives Congress plenary power to restrict the Supreme Court's appellate ju- risdiction and the inferior courts' original and appellate jurisdiction.^^ Other theorists argue, though, that the structure if not the text of the Constitution provides some limits on Congress's authority in this re- gard.59 One of the participants in Henry M. Hart, Jr.'s dialogue, for ex- ample, famously suggests that "the exceptions [to the Supreme Court's

^* See Grove, supra note 49, at 870 (outlining the debate). " Peter J. Smith, Textualism and Jurisdiction, 108 COLUM. L. REV. 1883, 1885 n.4 (2008)

(identifying proponents of this view). 56 U.S. CONST, art. Ill, § 2. " Id. art. Ill, § 1. *̂ See Grove, supra note 49, at 874-75 (identifying the textual support for this tradi-

tional view and citing, among others, John Harrison, The Poxuer of Congress to Limit the Juris- diction of Federal Courts and the Text of Article III, 64 U. C H I . L . REV. 203, 204 (1997); Martin H. Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. P A . L . REV. 1633, 1637 (1990); and Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005 (1965)).

5̂ It is beyond the scope of this paper to identiiy the many authors who have recently expotinded this less traditional view. For a few key examples, see Akhil Reed Amar, Taking Article III Seriously: A Reply to Professor Friedman, 85 Nw. U. L. REV. 442, 445 (1991); Steven G. Calabresi & Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the H a m d a n Opin- ions: A Textualist Response to Justice Scalia, 107 C O L U M . L . REV. 1002, 1005 (2007) ("Simply put. Article III requires that the federal judiciary be able to exercise a« of the judicial pow- er of the United States that is vested by the Constitution and that the Supreme Court must have the final judicial word in a//cases . . . that raise federal issues."); Laurence Claus, The One Court That Congress Cannot Take Away: Singularity, Supremacy, and Article III, 96 G E O . L.J. 59, 64 (2007) ("Congress cannot use its Exceptions power to achieve particular desired answers to questions that fall within the judicial Power of the United States.").

[M]y root texttial argument is this: Article III plainly requires that the judicial power of the United States "shall [that is, must] be vested" in the federal judi- ciary, which includes one Supreme Court that "shair (again, must) be estab- lisbed, and inferior federal courts that "may," but need not, be created. And that very same "jtidicial power shall [here too, must] extend," in the form of either original or appellate jurisdiction, "to all cases" involving federal ques- tions, admiralty, and ambassadors.

Amar, supra, at 445 (alterations in original).

1698 Boston College Law Review [Vol. 5 2 ; 1 6 8 7

appellate jurisdiction] must not be such as will destroy the essential role ofthe . . . Court in the constitutional plan."^"

We need not take a side in this debate. For our purposes, it is suffi- cient to identify the implications of the debate for reviewability cases: if Article III restricts Congress's authority to strip federal courts of certain kinds of jurisdiction, then of course those restrictions extend at least equally to executive encroachment on the judicial sphere. It is there- fore possible that in some small subset of reviewability cases, an agen- cy's erection of a jurisdictional roadblock (as, for example, when an agency decides to proceed via some statutorily unreviewable form of action^i) could infringe on the courts' constitutionally protected sphere. Importantly, however, this problem can arise only in those cases in which an agency raises a truly jurisdictional, rather than prudential, reviewability objection.^^ The reason is straightforward: the objection must be jurisdictional in nature because a court's constitutionally pro- tected sphere of inñuence cannot be threatened by the court's own de- cision to delay or deny review for purely discretionary reasons.^*

As for the mechanics of assessing whether Article III infringement is present, a court must ask itself only whether the Constitution would permit Congress to limit judicial review in the way that the agency pur- ports to do. If Congress could do so, then the agency's assertion of the same authority may pose nondelegation, underdelegation, or individ- ual rights problems, all of which are discussed below, but it does not infringe on an irreducible power of the courts.

B. Nondelegation

The next separation of powers question lurking in reviewability cases is whether the agency plausibly has authority to limit judicial re- view in the way it attempts to. This is really a two-part question. First, does the Constitution permit Congress to grant the agency the authority

* Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953). For a comprehensive discussion of the current state of the literature on the issue of Congress's power to strip the Supreme Court of appellate jurisdiction and federal inferior courts of appellate and original juris- diction, see generally Grove, supra note 49.

1̂ See Block, 467 U.S. at 353 n.4 ("[C]ongressional preclusion of judicial review is in ef- fect jurisdictional . . . .").

62 See Amador Cnty., 640 F.3d at 380 (distinguishing between reviewability arguments that are jurisdicdonal and those that are prudential).

•53 See id.

2011] VWiat Agenües Can (and Can't) Do to Limit Judidal Review 1699

to curtail court oversigbt? Second, did Congress grant tbe agency tbat autbority in tbe relevant statute?

Our rubric addresses tbe first part of tbis compound question un- der tbe beading "Nondelegation." Complicating matters, nondelegadon itself bas two subparts, botb flagged by Justice Breyer in bis dissenting opinion in tbe 1998 Supreme Court case Clinton v. City of New York.^ Eirst, at least in tbeory, Congress may bave delegated tbe wrong kind of power to tbe agency—as, to use an extreme example, if Congress passed a statute calling on tbe EPA to "write all laws necessary for protection of tbe environment" (tbereby delegating true legislative power to an agen- cy) .̂ 5 Second, Congress may bave delegated too much power to tbe agen- cy, even tbougb tbat power bas tbe rigbt constitutional flavor.^^ Xo con- tinue tbe above example, tbis kind of nondelegation problem would be present in a statute tbat called on tbe EPA to "issue regulations to pro- tect clean air." Now tbe problem is not tbat tbe delegated power is for- mally legislative ("write all laws"), but instead tbat tbe power is function- ally legislative—Congress wrote a statute so broad, and so lacking in content, tbat tbe agency is left to make all of tbe difficult policy cboices about bow to acbieve Congress's ill-defmed objective.^'

Tbe former, more clear-cut nondelegation problem almost never arises because it is tbe rare statute tbat expressly delegates pure legisla- tive power to an agency.̂ ^ xji^t said, in tbe 1892 Supreme Court case

" 524 U.S, at 480-81 (Breyer, J,, dissenting); see also Mistretta v. United States, 488 U,S, 361, 416-17, 419-20 (1989) (Scalia, J,, dissenting) (distinguishing between the nature and the extent of a delegation),

65 Clinton, 524 U,S, at 480-81 (Breyer,J,, dissenting), «i Id. •>' See, e.g., Indus, Union Dep't v. Am, Petroleum Inst., 448 U.S. 607, 687 (1980)

(Rehnquist, J,, concurring in the judgment) (concluding—contrary to the plurality's view—that section 6(b) (5) of the Occupational Safety and Health Act of 1970 rttns afoul of the noudelegation doctrine in part because Congress avoided "hard choices" that were "both fundamental for purposes of the statute and yet politically so divisive that the neces- sary decision or compromise was difficult, if not impossible, to hammer out in the legisla- tive forge"),

08 But see Mistretta, 488 U,S, at 420 (Scalia, J,, dissenting). In evaluating the U,S, Sen- tencing Guidelines, Justice Scalia concluded;

In the present case, , , , a pure delegation of legislative power is precisely what we have before us. It is irrelevant whether the standards [for writing the Guidelines] are adequate, because they are not standards related to the exer- cise of executive or judicial powers; they are, plainly and simply, standards for further legislation.

Id.

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Field u Clark, the Court clearly indicated its view of this kind of congres- sional abdication:

That congress cannot delegate legislative power to the presi- dent is a principle universally recognized as vital to the integ- rify and maintenance of the system of government ordained by the Constitution.... "The true distinction . . . is between the delegation of power to make the law, which necessarily in- volves a discretion as to what it shall be, and conferring au- thorify or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."^9

The real difficulfy arises, of course, in determining whether a stat- ute is so vague and lacking in standards that it effectively delegates "power to make the law" even as it purports only to grant "authorify or discretion as to [the law's] execution."™ The Supreme Court has con- sistentiy (if not very stringentiy) policed this line by requiring that "when Congress confers decisionmaking authorify upon agencies [it] must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'"^^

In practice, the intelligible principle requirement does littie to constrain Congress's abilify to transfer sweeping quasi-legislative au- thorify to agencies.

In the history of the Court [it has] found the requisite "intel- ligible principle" lacking in only two statutes, one of which provided literally no guidance for the exercise of [agency] discretion, and the other of which conferred authorify to re- gulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring "fair com- petition. "'̂ 2

On the other hand, "the Court has upheld congressional delega- tions based upon the 'vague and indefinite' principles of 'public inter- est, convenience, or necessify,' and what is 'generally fair and equita-

15̂ 143 U.S. 649, 692-94 (1892) (emphasis added) (quoting Cincinnati, W. & Z.R. Co. v. Comm'rs of Clinton Cnty., 1 Ohio St. 77, 88-89 (1852)).

'"/a. " Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 472 (2001) (citation omitted). '2 Id. at 474.

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ble,' or 'requisite . . . to protect the public health,'"'^ If the "intelligible principle" doctrine retains any force, therefore, it is in its use as an in- terpretive guide for narrowing ambiguous statutory language that, read broadly, would give an agency too litde guidance about how to pro- ceed.̂ ^ The "doctrine, in other words, now operates exclusively through the interpretive canon requiring avoidance of serious constitutional questions."•'5 interpret ambiguous statutory language narrowly, the doc- trine instructs, to avoid the delegation of "excessively open-ended au- thority to the Presiden! t,"''̂

To apply the nondelegation doctrine to reviewabüity cases, courts must first identify the type of power an agency wields when it claims that an action is unreviewable because, for example, the acdon is nonfinal or unripe, or administradve remedies remain unexhausted. There are three possibüities. First, if the agency's reviewabüity objecdon calls on the court to exercise truly prudential authority to delay or deny review (as with some ripeness^^ arguments, for example), then the agency is merely engaging in a conversation with the court about the best uses of the agency's and the court's time and expertise. In such a case, there is no need to apply the nondelegation doctrine, because the agency is dis- cussing the efficient execudon of the relevant laws (an eminently execu- tive function) rather than wielding a delegated power over the courts. Second, if the agency's reviewabüity objection goes to the very existence of "a justiciable case or controversy under Árdele 111"̂ ^ (as with many

'3 Bryan Clark, C o m m e n t , Refining the Nondelegation Doctrine in Light of REAL ID Act 102(c): Time to Stop Bulldozing Constitutional Barriers for a Border Fence, 58 C A T H . U . L . REV. 851,860(2009).

'•• Mistretta, 488 U. S. at 373 n.7 ("In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.").

' 5 J o b n F. Manning, The Nondelegation Doctrine as a Cannon of Avoidance, 2000 S U P . C T . REV. 223, 223.

'^ Adrian Vermeule, Foreword: System Effects and the Constitution, 123 H A R V . L . R E V . 4, 67-68 (2009).

" "Tbe ripeness doctrine is 'drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction . . . .'" Nat'l Park Hospi- taUty Ass'n v. Dep't of the Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57 n.l8 (1993)). Here we refer only to the prudential as- pects of ripeness, such as the "'[p]roblems of prematurity and abstractness' tbat may pre- vent adjudication in all but the exceptional case." Buckley v. Valeo, 424 U.S. 1, 114 (1976) (quoting Socialist Labor Party V. Gilligan, 406 U.S. 583,588 (1972)).

'8 Holder V. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010).

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Standing™ arguments), then the agency is merely reminding the court of preexisting constitutional limits on judicial authority. Again, the non- delegation doctrine is not relevant to such a case, because the limits on the court's authority derive from the Constitution rather than from any affirmative assertion by the agency of delegated power to curtail court oversight.

The third possibility is more interesting. If the agency asserts that the form or timing of its action narrows the court's purview, then the agency is effectively wielding power over the court's jurisdiction. The same is true if the agency argues that jurisdiction is lacking because the plaintiff failed to exhaust an agency-created administrative remedy. In either case, the agency is effectively arguing that something it did (or failed to do, or some administrative review scheme that it created) has the effect of narrowing the Judiciary's sphere of influence. The only possible constitutional root of such power is Congress's authority, in Article III, to "ordain and establish . . . inferior courts, "S" and to "regu- lat[e]" and "make . . . exceptions" to the Supreme Court's "appellate jurisdiction."81 If an agency argues that its affirmative choices have con- sequences for the scope of court jurisdiction, the agency must be wield- ing delegated legislative authority over the jurisdiction of the federal courts.

The Supreme Court long ago accepted that Congress may delegate the power "'to regulate the practice and procedure of federal courts'" to another branch of government.^2 justice Blackmun summarized this history in 1989 in Mistretta v. United States, an unsuccessful nondelega- tion challenge to the U.S. Sentencing Commission's authority to promulgate sentencing guidelines for the Judiciary:

In Sibbach v. Wilson àf Co., . . .we upheld a challenge to certain rules promulgated under the Rules Enabling Act of 1934, which conferred upon the Judiciary the power to promulgate federal rules of civil procedure. . . . We observed: "Congress

'!> Ltijan V. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ("Though some of its ele- ments express merely prudential considerations that are part of jtidicial self-government, the core component of standing is an essential and unchanging part of the case-or- controversy reqtiirement of Article III.").

8° U.S. CONST, art. Ill, § 1 ("The jtidicial power of the United States, shall be vested in one Supreme Court, and in sxich inferior courts as the Congress may from time to thne ordain and establish.") (emphasisadded).

8' Id. art. Ill, § 2 ("In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, xuith such exceptions, and under such regu- lations as the Congress shall make.") (emphasis added).

82 Mistretta, 488 U.S. at 387 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941)).

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has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not incon- sistent with the statutes or constitution of the United States." .. . This passage in Sibbach simply echoed what had been our view since Wayman v. Southard, decided more than a century earlier, where Chief Justice Marshall wrote for the Court that rulemaking power pertaining to the Judicial Branch may be "conferred on the judicial department"^*

The Mistretta Court recognized, however, that while Congress may confer "rulemaking power pertaining to the Judicial Branch . . . on the judicial department,"84 it is an entirely different question whether Con- gress may confer that power on an executive agency. As the Court ob- served, "had Congress decided to confer responsibility for promulgat- ing sentencing guidelines on the Executive Branch," the resulting stat- ute might "unconstitutionally . . . assign [] judicial responsibilities to the Executive or unconstitutionally . . . unite[] the power to prosecute and the power to sentence within one Branch."^ Intelligible principles aside, the Constitution may restrict Congress's ability to delegate to an executive agency the authority to curtail judicial review.̂ ^

For our discussion of reviewability doctrines, the relevant point is that to assess nondelegation issues in a reviewability case, the court must apply a four-pronged nondelegation doctrine. The first and sec- ond prongs are familiar. First, the court must assure itself, as usual, that in permitting an agency to limit review by modifying the form or timing of its action, or by establishing exhaustion procedures. Congress has not inappropriately granted the agency true lawmaking power. Deter- mining the appropriate form and timing of a communication with regulated entities is plainly at least somewhat executive in nature, as is establishing internal agency review procedures by which an agency can double-check its own initial decisions.̂ ^ Second, also as usual, the court must evaluate whether the statute in question provides an intelligible

83 Id. (citadons omitted) (qtioting Sibbach, 312 U.S. at 9-10; Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)); iee also Booker v. United States, 543 U.S. 220, 242 (2005) (expressly nodng that nothing in the decision "call[s] into quesdon any aspect of our deci- s i o n i n Mistretta").

84 Mistretta, 488 U.S. at 387 (emphasis added) (internal quotations omitted). 85/d. at 391 n.17. 86 See id. 8' Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986) ("Interpredng a law enacted by Con-

gress to implement the legislative mandate is the very essence of 'execution' of the law.").

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principle tbat adequately constrains tbe agency's cboices about form, timing, and exbaustion. Tbis will be a question of statutory interpreta- tion, and may require tbe court to adopt a narrowing construction of tbe governing laws for tbe reasons discussed above.̂ ^

But tbe inquiry cannot stop tbere. Ratber, tbe court must also ask itself wbetber the statute in question improperly delegates ""judidal re- sponsibilities to tbe Executive."^^ Tbis tbird question is parallel to tbe first, tbougb in tbis case it turns on tbe judicial, ratber tban tbe legisla- tive, nature of tbe delegated power. Tbat said, just as "a certain degree of discretion, and tbus of lawmaking, inheres in most executive or judi- cial action,"5" a certain degree of discretion over tbe conduct of a case, and tbus of judicial responsibility, inberes in tbe prosecutorial func- tion.̂ ^ As witb delegations of quasi-legislative power, tberefore, "it is up to Congress, by tbe relative specificity or generality of its statutory commands, to determine—up to a point—bow small or bow large"^2 tbe agency's judicial responsibility sball be. And, as witb ordinary dele- gations of quasi-legisladve autbority, courts can ensure tbat Congress never passes tbe elusive constitutional endpoint by again using tbe "in- telligible principle" doctrine^tbe fourtb prong of our expanded non- delegation inquiry—as an interpretive guide to narrow ambiguous lan- guage tbat migbt otberwise grant an agency too mucb autbority over tbe scope of judicial review.

Wbat does all of tbis mean in practice? Tbe answer is far simpler tban tbe above discussion would suggest. In a reviewability case, tbe court sbould ask itself not only tbe usual nondelegation questions, but also wbetber tbe relevant statute includes an adequate intelligible prin- ciple to constrain tbose agency cboices tbat are relevant to reviewability, including cboices about tbe timing and form of tbe agency's action and tbe interposition of administrative review procedures.

C. Underdelegation

Assuming tbat tbe governing statute satisfies tbis augmented non- delegation test, tbe final separation of powers question is wbetber tbe relevant statute in fact delegates to tbe agency tbe autbority to limit

88 See supra notes 74-76 and accompanying text, 89 Mistretta, 488 U,S, at 391 n,17 (emphasis added), 5" Id. at 417 (Scalia,J,, dissenting), ^' To take just one obvious example, when the government is the plaintiff or prosecu-

tor, it drafts the complaint and chooses (within limits) the date on which to file; thus, it controls the titning and content of the ensuing case,

32 Mistretta, 488 U,S. at 417 (Scalia, J,, dissenting),

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court oversight. Like nondelegation, this question raises an issue of sta- tutory construction. Now, though, the issue is no longer whether the Constitution permits Congress to delegate to an executive agency some authorify over court jurisdiction, but whether Congress intended to delegate to this agency, in this context, the authorify to take advantage of jurisdictional or prudential limits on court oversight.

If Congress says, in no uncertain terms, "Agency X's decisions are reviewable to the extent prescribed by Agency X," then Congress plainly intended the agency to choose which of its decisions to shelter from re- view. If, on the other hand, the governing statute includes a broad judi- cial review provision, then the agency's invocation of a reviewabilify limit to shield agency policy choices from court oversight threatens to evis- cerate the very remedy that Congress hoped would keep the agency in check. In the latter situation, the problem is not that Congress could not constitutionally delegate to the agency the authorify to limit judicial re- view in the identified manner (nondelegation), but rather that Con- gress did not so delegate (underdelegation). Congress intended to make review broadly available; the agency undermines that intent when it wields the form or content of its action, or the presence of an exhaus- tion requirement, as a shield against court oversight.

We illustrate this concern, which we term "underdelegation," with a hypothetical that avoids the complexify of most real world statutes. Suppose Congress passes a statute, the Forest Products Act, that (1) creates a procedure for obtaining a logging permit; (2) identifies cer- tain factual prerequisites (such as age of stand, location of stand, and previous logging history) that any applicant must establish prior to ob- taining a permit; (3) entrusts the evaluation of permit applications to a Logging Review Board; and (4) includes a judicial review provision that states, "Any parfy aggrieved by the Board's decision granting or denying a logging permit may, within sixfy days after its entry, file a petition to review the decision in the court of appeals wherein venue 1̂ js."93 Sup- pose further that the purpose of the review provision was to ensure that anyone aggrieved by the Board's choices would have easy and rapid ac- cess to a judicial remedy.

Imagine next that the Logging Review Board creates an onerous administrative reconsideration procedure under which all permit ap- plicants and opponents must file motions to reconsider with the Board

"3 This provision is styled on 28 U.S.C. § 2344 (2006), which governs judicial review of most alien removal orders. 8 U.S.C. § 1252 (a) (1) (2006) (providing that, with some excep- tions, "[j]udicial review of a final order of removal . . . is governed only by [28 U.S C §2344]").

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before they may obtain judicial review of a permit decision. Moreover, suppose the Board imposes a ten-day füing deadline for reconsidera- tion motions. Finally, imagine that the Board denies a permit to a small logging company, and the company faüs to fue the required reconsid- eration motion within the ten-day window, instead going direcdy to the appropriate circuit court on day fifteen.

In this scenario, if the Logging Review Board moves to dismiss on exhausdon grounds, and the court agrees to dismiss the challenge, the court is effectively approving the Board's effort to protect its permitting decisions from review. More important for our purposes, the court is doing so in spite of clear congressional intent to create a judicial remedy that is broader than the Board's ten-day limit allows. This is a paradig- matic example of underdelegadon: Congress paved the way for expan- sive judicial review; the agency threw up procedural roadblocks that it had no clear statutory authority to erect; and the court honored those roadblocks, permitting the agency to exercise undelegated authority over judicial review and, in the process, to thwart Congress's intent.^*

As this example ülustrates, the problem of underdelegation is not one of congressional power but one of congressional intent. As such. Congress can easüy overcome any underdelegadon concern by being clear about the scope of the agency's authority. Thus, in the invented Forest Products Act, Congress could include a fifth provision that grants the Board the authority to "impose any administrative procedures nec- essary to ensure prompt, thorough, and accurate review of all logging permit applicadons." Now the Board has a plausible argument that Con- gress did grant it the authority to establish a reconsideration procedure and to make exhaustion of that procedure a prerequisite for judicial review. Specifically, the Board can argue: (1) Congress intended it to have the opportunity to make "thorough and accurate" determinations on all logging permit-related questions; (2) occasionally, reconsidera- don may be necessary to ensure both thoroughness and accuracy; and (3) the Board must make the reconsideradon procedure a prerequisite to judicial review, because otherwise applicants would choose to forego it. Now there is consdtutional room for a court to accept that an appli- cant's faüure to exhaust precludes review. In this context, a court that recognizes the jurisdictional implicadons of faüing to exhaust the re- consideradon procedure is simply deferring to the agency's reasonable

^* Cf., e.g., FEC V. Akins, 524 U.S. 11, 19 (1998) (giving effect to language in the Fed- eral Election Campaign Act that signaled "congressional intent to cast the standing net broadly" and thus allowed for expansive judicial reviewof agency action).

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reading of the Forest Products Act, rather than approving the Board's attempt to exercise undelegated authority to evade judicial review.

Importantly, unlike Article III infringement or nondelegation,^^ the problem of underdelegation can arise whether the agency's review- ability argument is jurisdictional or prudential in nature. Under court- created, prudential reviewability doctrines, the courts withhold review in certain circumstances so as not to interfere with ongoing agency pol- icy developmenL^^ As discussed above,̂ ^ these prudential reviewability rules, by definition, cannot infringe the Judiciary's protected sphere because the courts make the rules and decide when and whether to follow them. Likewise, these prudential rules do not pose a nondelega- tion problem, because the rules generally hinge on the timing and form of the agency's actions^^—choices that are patendy executive in nature.99 But if the relevant statute indicates Congress's intent that the agency's actions be broadly reviewable regardless of timing or form, then the agency's invocation of a prudential limit on review can in- fringe on Congress's authority. Congress limited its delegation of quasi- legislative power to the agency, granting the agency the power to for- mulate policy, but only with judicial oversight. The agency flouted that restriction on its authority by wielding the timing and form of its action as a shield to review. From Congress's point of view, the fact that the resulting shield is prudential rather than jurisdictional is ii relevant— the agency has exceeded its statutory authority by formulating policy without judicial oversight.

How, then, should a court assess underdelegation in a case in which a complainant has challenged an agency's action or policy, and the agency has raised a reviewability objection such as inaction, finality, ripeness, or exhaustion? The issue is one of statutory interpretation.

'5 See supra notes 53-92 and accompanying text. ^̂ See, e.g.. Amador Cnty., 640 F.3d at 380 (distinguishing between reviewability argu-

ments that are jurisdictional and those that are prudential in nature). ' ' See supra notes 62-63 and accompanying text. "8 See, e.g., Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).

[T]he primary foctis of the ripeness doctrine as it concerns judicial review of agency action has been a prudential attempt to time review in a way that bal- ances the petitioner's interest in prompt consideration of allegedly unlawful agency action against the agency's interest in crystallizing its policy before that policy is subjected to judicial review and the court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.

Id. ^ See supra note 87 and accompanying text.

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with which courts are well acquainted, î " Three possibilities present themselves. First, the statute could provide for judicial review of all re- lated agency actions.i"! In the face of this kind of expansive statutory language, an agency that purports to erect a "reviewability" barrier to court oversight is overreaching. Congress's intent to allow for judicial review "is clear, [and] that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. "K'̂

On the opposite extreme, the statute could include express lan- guage delegating to the agency the authority to delimit the scope of judicial review. Congress has not chosen to make such an "extraordi- nary delegation"10* very often, but there is at least one real-world ex- ample: the Foreign Sovereign Immunities Act (FSIA) expressly condi- tions review of common law claims against a foreign sovereign on the State Department's assessment of the sovereign's terrorist status.i'''' In other words, in the FSIA, Congress expressly delegated to the State De- partment the authority to make a determination that controls federal courts' jurisdiction to entertain certain common law claims.i''̂ If the relevant statute in the reviewability case accomplishes its delegation as clearly as the FSIA, the consequence is clear: the court may give effect to the agency's reviewability objection (assuming there are no nondele- gation. Article III infringement, or individual rights infringement prob- lems) , because the agency wields expressly delegated authority to limit court oversight.

Finally, the third and most likely possibility is that the statute is ambiguous. For example, the statute could contain both a judicial re- view provision and language that seems to grant the agency broad au-

•"" The task of determining congressional intent based on statutory interpretation is indeed a familiar one—courts frequently engage in such an inquiry to determine whether a regulation should be afforded deference purstiant to the Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Res. Def Coundl, Inc., 467 U.S. 837, 842-43 (1984). The Chev- ron inquiry requires courts to discern "'whether Congress would have intended, and ex- pected, courts to treat [the regulation] as within, or outside, its delegation to the agency of "gap-filling" authority.'" Mayo Found., 131 S. Ct. at 714 (quoting Long Island Care at Home, Ltd. V. Coke, 551 U.S. 158, 173 (2007)).

"•• Interpredng the APA, for example, the Supreme Court has noted the Act's "gener- ous review provisions," and accordingly has "construed [the] Act not grudgingly but as serving a broadly remedial purpose." Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 156 (1970) (citations omitted) (internal quotations omitted).

i»2 Chevron, 467 U.S. at 842-43. 103 Kucana, 130 S. Ct. at 840. io< 28 U.S.C. § 1605A(a) (1) (Supp. II 2008). i''5 See id.

2011] What Agendes Can (and Can't) Do to Limit Judidal Review 1709

tbority to cboose not to act, to act via nonfinal (and bence unreview- able) guidelines, to create administrative prerequisites to review, or otb- erwise to curtail tbe availability or scope of judicial review. In tbese situations, tbe court must do wbat courts do best:!"^ try to discern tbe enacting Congress's intent, keeping in mind botb tbe presumption in favor of judicial review of executive action^"^ and tbe principle articu- lated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., tbat courts defer to an agency's reasonable interpretation of ambiguous sta- tutory provisions.̂ "^

Most cases, of course, will fall into tbis tbird category, because, as "tbe famous bypotbetical statute, 'No vebicles sball be allowed in tbe park,'"i*'9 illustrates, statutory language is almost always subject to mul- tiple plausible interpretations. But tbe fact tbat our suggested under- delegation analysis rarely provides a clear answer and instead requires resort to presumptions and principles does not mean tbat courts sbould skip tbe analysis altogetber. As tbe below discussion of Ohio Eor- estry proves,"" in some reviewability cases, a careful reading of tbe stat- ute would reveal tbat Congress intended to provide for broad judicial review. In tbose cases, a court tbat nevertbeless permits tbe agency to invoke reviewability doctrines to evade review is sanctioning an uncon-

'"« See Japan Whaling Ass'n v. Am, Cetacean Soc, 478 U,S, 221, 230 (1986) ("[U]nder the Constitution, one of the Judiciary's characteristic roles is to interpret statutes , , , , " ) ; NLRB V, Catholic Bishop of Chi,, 440 U,S, 490, 511 (1979) (Brennan, J,, dissenting) (not- ing that the "proper role" of the judiciary "in construing statutes , , , is to interpret them so as to give effect to congressional intention"); cf. Marbury v, Madison, 5 U,S, (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rttle. If two laws confiict with each other, the courts must decide on the operation of each,"),

"" See supra note 1 and accompanying text (noting that the availability of judicial re- view is necessary to legitimate agency action),

•»8 467 U,S, at 843-44,

[I]f [a] statute is silent or ambiguous with respect to [a] specific issite, the question for the court is whether the agency's answer is based on a permissi- ble construction of the statute, , , , [In which case] a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

Id. (footnotesomitted), '"9 Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Con-

sensus and the New Modified Textualism, 1 1 9 Y A L E L J . 1750, 1761 (2010), "" See infra notes 176-225 atid accompanying text.

1710 Boston College Law Review [Vol. 52:1687

stitutional expansion of agency authorify at the expense of both con- gressional authorify^ and agency legitimacy.̂, 1 1 2

D. Individual Rights InfringeTnent

Finally, we note that an agency's invocation of the exhaustion doc- trine or another reviewabilify objection could, in theory, violate the rights of the plaintiff who is challenging his treatment at the hands of the agency. "Article III does not confer on litigants an absolute right to the plenary consideration of every nature of claim by an Article III court,""^ but plainly the Fifth Amendment's Due Process Clause,'̂ '* and perhaps also Article III itself,"^ protect an individual's right to "make his way to court with" certain kinds of challenges to agency action."^ A court that denies review based on an agency's inaction, finalify, ripe- ness, or exhaustion objection could, therefore, impinge on this right.

The first point to make about this right of access to the federal courts is that it can be waived by the individual."^ Thus, the only rele- vant cases in which "individual rights infringement" could possibly arise are those in which an agency has asked the court to curtail review, and the individual claimant has argued that denying review would infringe

" ' Cf. Ngo, 548 U.S. at 117 (Stevens, J., dissenting). In Ngo, the majority determined that, under the PLílA, the respondent's failure to file an administrative grievance with California prison officials was fatal to his attetnpt to file a section 1983 action against those officials. Id. at 93-99 (majority opinion). Justice Stevens disagreed, noting that the PLRA has "competing values": "reducing the number of frivolotis filings, on one hand, while preserving prisoners' capacify to file meritoriotis claims, on the other." Id. at 117 (Stevens, J., dissenting). Injustice Stevens's view, the majority's decision to give the state's adminis- tradve remedies jurisdictional significance "frustrate [d] rather than effectuate [d] legisla- tive intent." Id.

"2 The agency legitimacy problem, of course, is the fiip-side of the prestimption in fa- vor of judicial re\iew: whenever an agency is permitted to escape judicial review, there is a concern that the precluded claim may have been meritorious. See, e.g., id. (discussing the need to "preserve prisoners' capacify to file meritoriotis claims" against prison officials); supra notes 15—18 and accompanying text.

"3 Commodify Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986) (citing Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 583 (1985)); Crowell v. Benson, 285 U.S. 22, 87 (1932) (Brandeis,J., dissenting).

" ' ' U.S. CONST, amend. V. "5 See supra note 53 and accompanying text. "^ Hamdi, 542 U.S. at 536 (obser\ing that a U.S. citizen is entitled to "make his way to

cotirt with a challenge to the facttial basis for his detention by his Government," even if that citizen is detained as an enemy combatant).

' " Schor, 478 U.S. at 848-49 ("[A]s a personal right. Article Ill's guarantee of an im- partial and independent federal adjudication is stibject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil and criminal matters mtist be tried.").

2011] Wliat Agendes Can (and Can't) Do to Limit Judidal Review 1711

his due process (or Article III) rights."^ In such a case, the court must assess whether delaying, abridging, or denying review would, in fact, violate those rights.

The remainder of this article focuses on cases that implicate struc- tural separation of powers issues rather than due process, so we sum- marize only briefly the due process analysis."^ Due process is generally understood to be "flexible" and situation-dependent,'^*' in essence re- quiring the government to provide certain procedural safeguards— such as notice and a hearing'^'—before (or sometimes after) '̂ 2 depriv- ing a "person" of "life, liberty, or property.'''^^ The inquiry proceeds in two parts. First, the injured party must have a life, liberty, or property interest at stake. Of these interests, reviewabüity cases most often impli- cate liberty. The paradigmatic fact pattern is that of a litigant (usually a prisoner, ülegal immigrant, or asylum seeker) who seeks to challenge an agency's handling of himself or his case but is barred from proceed- ing in court because of a failure to exhaust administrative remedies.'^*

"8 See id, "5 For a more thorough discussion of the role of due process in constraining agency ac-

tion, see Evan J. Criddle, When Delegation Begets Domination: Due Process in the Administrative State, 46 GA. L. REV. (forthcoming 2011), available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1786669.

'20 Morrissey V. Brewer, 408 U.S. 471, 481 (1972). '2' Mathews v. Eldridge, 424 U.S. 319, 333 (1976) ("This Court consistentiy has held

that some form of hearing is required before an individual is finally deprived of a property interest."); Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("The failure to accord an accused a fair hearing violates even the minimal standards of due process."); Grannis v. Ordean, 234 U.S. 385, 394 (1914) ("The fundamental requisite of due process of law is the opportunity to be heard.").

'22 See Eldridge, 424 U.S. at 349 (holding that a pre-deprivation hearing is not required prior to terminating the plaintiffs social security disability benefits); see also Goldberg v. Kelly, 397 U.S. 254, 267 (1970) ("'Tbe hearing must be 'at a meaningful time and in a meaningful manner.'" (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))); Richard H . Fallón, Jr., Some Confusions About Due Process, Judicial Reviexu, and Constitutional Remedies, 93 COLUM. L. REV. 309, 330 (1993).

Under the Due Process Clause, government must typically provide notice and some kind of hearing before it can lawfully deprive anyone of life, liberty, or property. Moreover, when pre-deprivation process is not extensive—as it need not be, for example, before someone may be deprived of government em- ployment—a fuller hearing must generally be provided before a temporary deprivation becomes fitial.

Fallón, supra, at 330 (footnotes omitted). '23 U.S. CONST, amend. V; see also Eldridge, 424 U.S. at 332 ("Procedural due process

imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Four- teenth Amendment.").

'2< See, e.g„ Ngo, 548 U.S. at 93.

1712 Boston College Law Review [Vol. 52:1687

The exact contours of the liberty interest are unclear, but as a general rule, the term is broadly defined,i25 extending not only to freedom from confinement by the government but also to "protection against government interference with certain fundamental rights" and to en- joyment of those "privileges long recognized . . . as essential to the or- derly pursuit of happiness by free men. "̂ 26

Assuming an individual successfully demonstrates that a chal- lenged agency action will deprive him of a life, liberty, or property in- terest, the second part of the inquiry requires the court to assess whether any process the individual received "satisf[ies] the dictates of minimal due process. "'2^ To make this assessment, the court must bal- ance "the private interest that will be affected by the official action"; "the risk of an erroneous deprivation of such interest through the pro- cedures used"; and "the Government's interest."'2^ As a practical mat- ter, administrative hearings often satisfy this three-factor test.'29 Thus, the individual may have no right of access to the federal courts. IVIore- over, many reviewability cases involve finality or ripeness objections in which the agency asks the court not to bar but merely to delay

'25 See Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) ("In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed."). Al- though the Court has referred to "liberty" and "property" as "broad and majestic terms," they are not limitless. Id. at 571-75. For example, the Court has found no liberty or prop- erty interest at stake in at-will public employment, in Bishop v. Wood, 426 U.S. 341, 343-50 (1976); "reputation alone," in Paul v. Davis, 424 U.S. 693, 709-12 (1976); foster family challenges to removal of foster children to natural parents, in Smith v. Org. of Foster Families for Equal, àf Reform, 431 U.S. 816, 846-47 (1977); and state prison regulations that are not "atypical" and do not impose a "significant deprivation," in Sandin v. Conner, 515 U.S. 472, 485-86 (1995) ("[Defendant's] discipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.").

126 Washington v. Glucksberg, 521 U.S. 702, 720, 727 n.l9 (1997) (internal quotation marks omitted) ; Roth, 408 U.S. at 572.

[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the or- derly pursuit of happiness by free men.

Roth, 408 U.S. at 572 (quoting Meyer v: Nebraska, 262 U.S. 390, 399 (1923)) (internal quo- tation marks omitted).

12' Ohio V. Akron Ctr. for Reprod. Health, 497 U.S. 502, 517 (1990). 128 Eldridge, 424 U.S. at 335. 129 See, e.g., id. at 349. '30 See, e.g.. Brief for Petitioner at 20, Ohio Forestry, 523 U.S. 726 (No. 97-16) (arguing

that forest management plans would not "forever escape review" because aspects of the

2011] Vnat Agendes Can (and Can't) Do to Limit Judidal Review 1713

The plaintiff in such a case would be hard pressed to argue that the resulting delay so threatens her private interests as to deprive her of due process. 1*1 Thus, it will be the rare case in which an agency's re- viewability objection and a court's consequent curtailment of review implicate an individual plaintiffs due process rights.i*^

II. APPLYING THE RUBRIC

Each of the four concerns discussed above—^Article III infringe- ment, nondelegation, underdelegation, and individual rights infringe- ment—serves as an essential check on agency authority to curtail fed- eral court jurisdiction or otherwise to limit judicial oversight As noted above, however, courts do not systematically evaluate these concerns in cases in which an agency argues that its choices have consequences for the scope of review. Rather, courts tend to focus narrowly on whichever reviewability doctrine applies in the particular case.

We therefore revisit three reviewability cases that implicate our ru- bric: two from the Supreme Court—the 2004 case Norton v. Southern Utah Wilderness Alliance (SLWA),i** and the 1998 case Ohio Forestry Ass'n V. Sierra Club^^*—and one from the U.S. Court of Appeals for the D.C. Circuit, the 2011 case Amador County v. Salazar.^^^ Our analysis suggests that standard reviewabüity analyses systematically undervah at least one of the constitutional concerns we identify: underdelegation. That is, those analyses fail to account for the very real possibility that Con- gress did not intend for the agency to have the authority to wield the timing or form of its action, or the existence of an administrative review procedure, as a shield against court oversight.

plans would be ripe for review "[o]nce a dmber sale creates the concrete factual context required for a manageable ripe controversy") (internal quotadon marks omitted).

131 "Xhe fundamental requirement of due process is the opportunity to be heard 'at a meaningful dme and in a meaningful manner.'" Eldridge, 424 U.S. at 333 ..j lodng Arm- strong, 380 U.S. at 552). Thus, delaying review of a nonfinal agency decision until that deci- sion actually deprives the plaintiff of some concrete liberty or property interest would likely sadsfy the flexible requirements of the Due Process Clause.

'32 But see Ngo, 548 U.S. at 117-18, 121-23 (2006) (Stevens, J., dissenting). Justice Ste- vens noted that the Court's imposition of "procedural default sanction" on a prisoner who "fails, inter alia, to file her grievance (perhaps because she correctly fears retaliadon) with- in strict dme requirements that are generally no more than 15 days" may "cause the statute to be vulnerable to constitutional challenges" because "the Constitution guarantees that prisoners, like all citizens, have a reasonably adequate opportunity to raise consdtudonal claims before impartial judges." Id.

133 542 U.S. 55, 69 (2004). 134 523 U.S. 726, 728-32 (1998). 135 640 F.3d 373, 380 (D.C. Cir. 2011).

1714 Boston College Law Review [Vol, 52;1687

A. SUWA: The BLM Dodges Judicial Review, but Remains Within Constitutional Limits

SUWA concerned tbe Bureau of Land Management's (BLM) ban- dling of so-called "wilderness study areas" ("WSAs") in Soutbern Utab.136 Tbe Eederal Land Policy and Management Act (ELPMA) re- quires tbe BLM to manage WSAs "in a manner so as not to impair tbe suitability of sucb areas for preservation as wilderness"!^' and "in accor- dance witb . . . land use plans . . . wben tbey are available."^^^ SUWA and several otber environmental groups alleged tbat tbe BLM violated tbe ELPMA's requirements by failing to protect tbe Soutbern Utab WSAs from environmental barms caused by off-road vebicle use.̂ ^̂

Tbe question before tbe Court in SUWA was wbetber section 706(1) of tbe APA, wbicb empowers courts to "compel agency action unlawfully witbbeld or unreasonably delayed,"̂ '**' autborized tbe court to review tbe BLM's "failure to act to protect public lands in Utab from damage caused by [off-road vebicle] use''̂ ^^—tbat is, wbetber tbe BLM's failure to act in tbis context constituted action "unlawfully witb- beld or unreasonably delayed" witbin tbe meaning of tbe APA. Tbe Court concluded tbat tbe ELPMA does not mandate tbe kind of con- crete actions tbat courts can "compel" under section 706(1).1*2 In prac- tical terms, tbe decision means tbat courts lack autbority under tbe APA to review tbe BLM's failure to take action against at least some barmful land use practices in WSAs.

Tbe Court reacbed tbis conclusion by narrowly interpreting APA section 706(1) to extend only to cases in wbicb "an agency failed to take a discrete agency action tbat it is required to take."^*^ Tbe Court tben beld

136 SUWA, 542 U.S, at 59. 13' 43 U.S.C, § 1782(c) (2006), 138/d, §1732(a), •39 SUWA, 542 U,S, at 60-61. i<» 5 U.S.C, §706(1) (2006), "I SUWA, 542 U,S, at 61, In managing public lands, the Secretary of the Interior,

through the BLM, must, by regulation or otherwise, "take any action required to prevent itnnecessary or undue degradation of the lands and their resources or to afford environ- mental protection," 43 U,S,C, § 1782(c), The BLM ttses land management plans to balance environmental protection against other land uses. See SUWA, 542 U.S, at 59, Land use plans, which the BLM adopts after notice and comment, are "designed to guide and con- trol fittttre management actions," 43 C,F,R, § 1601,0-2 (2010); iee also 43 U,S,C, § 1712; SUWA, 542 U,S, at 59, A "land itse plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps," SUWA, 542 U,S, at 59 (cit- ing 43 C,F,R. § 1601,0-5(k)),

I« SUWA, 542 U,S, at 66, I« Id. at 64,

2011 ] What Agendes Can (and Can't) Do to Limit Judidal Review 1715

that although the WSA preservation requirement is "mandatory as to the object to be achieved," it "leaves [the] BLM a great deal of discre- tion in deciding how to achieve" that object.̂ '** As for the land use plans that the BLM had developed for the Southern Utah WSAs, the Court observed that the FLPMA precludes the agency from taking affirmative "actions inconsistent with the [plans'] provisions."i'*^ The Court made clear, however, that the plans' statements about future agency action— such as the statement in one plan that a particularly vulnerable area would "be monitored and closed [to off-road vehicle use] if war- ranted"i46—^were merely "'will do' projections of agency action," not binding and enforceable commitments, i*' The Court therefore con- cluded that neither the FLPIVLA nor the Southern Utah land manage- ment plans require discrete agency actions with respect to off-road vehi- cles and consequentiy, the agency's failure to take any such action is immune from review under APA section 706(1) .i*̂

For our purposes, it is important first to note that the BLM's fail- ure to prohibit off-road vehicle use in the Southern Utah WSAs had the samé practical effect as a regulation affirmatively permitting the activ- ify: off-road vehicle use is permitted in the WSAs. By proceeding via inaction, however, the BLM shielded its decision from judicial review. An affirmative decision to allow off-road vehicles could have been re- viewed for consistency with the FLPIVIA under APA section /vi6(2),̂ *^ whereas the decision not to disallow off-road vehicles lies outside the scope of section 706(1).̂ ^o por all practical purposes, therefore, this is a case in which an agency made a decision about off-road vehicle use and then, deliberately or otherwise, "shelter[ed] its own decision [] from abuse-of-discretion appellate court" oversight.̂ ^^

The outcome in 5Í7T^ thus sends a peculiar message to the BLM: if you choose to permit a particular activify in wilderness study areas, implement that policy choice by declining to regulate the activify—a course of (in)action that cannot be second-guessed by co Is. More- over, if you write a management plan for a WSA, make sure tiiat plan is

'•"• Id. at 66. . ' « Id. at 69. '••̂ Id. at 68. (internal quotation marks omitted). "" Id. at 72. ' « SUWA, 542 U.S. at 72. '*^ 5 U.S.C. § 706(2) (C) (2006) ('The reviewing court shall—(2) hold unlawful and

set aside agency action, findings, and conclusions found to be— . . . (C) in excess of statu- tory jurisdiction, authority, or limitations, or short of statutory r i g h t . . . . " ) .

'50 SUWA, 542 U.S. at 72. '5' Kucana v. Holder, 130 S. Ct. 827, 840 (2010).

1716 Boston College Law Review [Vol. 52:1687

Strategic and aspiradonal, and makes no binding commitments to fu- ture action.'^2 Indeed, SUWA sends that message to all agencies, not just those that manage federal lands. As long as an agency's inaction does not amount to a "faü[ure] to take a discrete . . . required . . . action," the policy choices underlying that inaction remain unreviewable, '̂ ^

SUWA's message is peculiar for two reasons. First, as already noted, the decision provides agencies with a roadmap for achieving certain concrete regulatory outcomes (such as permitting off-road vehicle use) with minimal court oversight. The second peculiarity, though, is more insidious. The very legitimacy of administrative regulation hinges on public participation,'^'* yet SUWA encourages agencies to implement their choices via inaction where possible, thereby not only evading court review but also eliminating any opportunity for the public to hear about and attempt to influence those choices.'^^

Although the APA analysis in SUWA is quite thorough, the Court never squarely addresses the questions we raise here—namely, whether the BLM's objecdon to APA review inappropriately aggrandized agency power at the expense of Congress, the courts, or the objects of regula- don. Addressing those issues is critical, we submit, to deciding agency inaction cases like SUWA.

We begin the discussion by applying our four-part rubric. As dis- cussed below, we ultimately agree with the Court's opinion—nothing in the Constitution, we conclude, obligated the SUWA Court to address the plaintiffs' claims on the merits.'^^ In this and many other reviewabü- ity cases, our rubric leads to the same outcome as the standard review-

'̂ 2 Indeed, in 2005, the Forest Service made this new approach explicit, issuing a post- SUWA rule that "emphasize[s] the 'strategic' nature of land management plans," which from 2005 on will "authorize no specific projects, merely 'characteriz[e]' future conditions and provid[e] 'guidance' for future decisions." Michael C. Blumm & Sherry L. Bosse, Nor- ton V. SUWA and the Unraveling of Federal Public Land Plaiming, 18 DUKE ENVTL. L . & P O L ' Y F. 105, 111 (2007) (quoting 36 C.F.R. § 219 (2010)).

'53 SUWA, 542 U.S. at 64. '̂ -i See, e.g., 5 U.S.C. § 553 (2006) (requiring public notice-and-comment prior to

adopting regulations); Blumm Sc Bosse, supra note 152, at 108 (noting that FLPMA "re- fiect[s] a federal commitment to public involvement, congressional oversight, and long- range planning as the central tenets of public land decision making").

'55 See Blumm & Bosse, supra note 152, at 106 (arguing tbat "Congress created modern federal land planning as tbe cornerstone of greater public involvement in public land decision making," but SUWA "and its aftermatb bave destroyed that vision, making public land plans virtually irrelevant and a large waste of taxpayer dollars").

'56 See itifra notes 158-175 and accompanying text. See generally Bressman, supra note 14, at 1709-10 (similarly concluding that SUWA was rightiy decided, though suggesting that the Court did not pay adequate attention to the potential for agency arbitrariness implicit in every decision not to act).

2011] What Agenäes Can (and Can't) Do to Limit Judiäal Review 1717

ability analysis. That fact does not, however, undermine the importance of the rubric. Our aim is not to obligate courts to hear a significantly larger percentage of cases challenging agency action, but rather to en- sure that agencies cannot manipulate courts into declining review in that small subset of inaction, finality, exhaustion, or ripeness cases in which a decision to delay or deny review would undermine the agency's constitutional legitimacy or infringe the parties' rights.

On the facts of SUWA, we can dispense quickly with two of the four prongs of our rubric—^Article III and individual rights infringement. First, even assuming that Article III protects an inner sphere of court jurisdiction, review of agency inaction certainly falls outside that sphere. Court review of agency inaction is not necessary to preserve the Su- preme Court's "essential role" of maintaining the supremacy and uni- formity of federal law.'̂ ^ Nor is court review necessary to protect the due process rights of the plaintiff in an inaction suit,î ^ who (by definition) raises the third-party harm of a regulatory beneficiary rather than the first-party harm of a regulatory object (no regulatory object would think to complain of the absence of regulation).^^^ Thus, the BLM's assertion that its decision not to regulate off-road vehicle use is unreviewable does not unconstitutionally infringe on the power of the courts.

Second, and relatedly, nothing in the. SUWA decision raises due process concerns. Neither SUWA nor the other environmeutul group plaintiffs have liberty or property interests in the management of the Southern Utah WSAs that comprise only public lands.'^''

Applying the nondelegation prong of our rubric to SUWA is some- what trickier. We must assess whether Congress could constitutionally delegate to the BLM the discretion to implement land management de-

'^' Hart, supra note 60, at 1364-65; see also L e o n a r d G. Ratner, Congressional Poxuer over the Appellate Jurisdiction of the Suprane Court, 109 U. PA. L . REV. 157, 161 (1960).

1̂ 8 See Lawrence G e n e Sager, The Supreme Court, 1980 Term—Forexuord: Constitutional Li- mitations on Congress'Authority to Regulate the Jurisdiction oftheFederal Courts, 95 . .RV. L. REV. 17,66(1981).

'59 Cf Ltijan V. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992).

When the suit is one challenging the legality of government action or inac- tion, the nature and extent of facts that must be . . . proved . . . to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judg- ment preventing or requiring the action will redress it. When, however, . . . a plaintiffs asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) oí someone else, much more is needed.

Id. ' ^ See supra notes 113-132 and accompanying text.

1718 Boston College Law Review [Vol. 52;1687

cisions through inaction. As we have noted, this question has four sub- parts: (1) whether Congress improperly delegated true lawmaking pow- er; (2) whether the FLPMA provides an intelligible principle to con- strain the BLM's discretion in making its substantive land management choices; (3) whether, in allowing for the possibility of unreviewable agency inaction, the FLPMA improperly delegated judicial responsibili- ties to the Executive; and (4) whether the FLPMA provides an intelligi- ble principle to constrain the BLM's discretion in making choices—like the choice not to act—that have implications for the scope of judicial

review. 161

The first two questions have straightforward answers. This type of agency discretion—the freedom to choose how to achieve a particular statutory objective—lies at the heart of the Supreme Court's functional nondelegation doctrine jurisprudence. That jurisprudence permits flexibility and encourages interbranch coordination to cope with in- creasingly complex regulatory structures and ever-changing circum- stances.is2 True, Congress must lay down an intelligible principle to guide and confine the agency's discretion in achieving the statutory objective, but the FLPIVLA easily satisfies that test: section I782(c) of the Act requires the Secretary of the Interior to exercise his discretion in a mannei that "prevent[s] unnecessary or undue degradation of the lands and their resources" and does "not . . . impair the suitability of

1̂1 See supra notes 70-71 and accompanying text. '152 See Mistretta v. United States, 488 U.S. 361, 372 (1989) ("[O]ur [nondelegation

doctrine] jurisprudence has been driven by a practical understanding that in our increas- ingly complex society, replete with ever changing and more technical problems. Congress simply cannot do its job absent an ability to delegate power under broad general direc- tives."); Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

The legislative process would frequendy bog down if Congress were consdtu- tionally required to appraise before-hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreason- able and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally stifficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this dele- gated authority.

Am. Power 6= Light, 329 U.S. at 105; Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935) ("The Constitution has never been regarded as denying to the Congress the necessary resources of fiexibility and practicality, which will enable it to perform its funcdon . . . . " ) ; J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) ("In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.").

2011] What Agendes Can (and Can't) Do to Limit Judidal Review 1719

[tbe WSAs] for preservation as wilderness."^^^ Tbese guidelines easily meet tbe Court's permissive definition of "intelligible principle."^^

Tbe tbird subpart of our nondelegation analysis leads us into less- cbarted waters. In tbe ELPIVLA, Congress delegated to tbe BLM tbe dis- cretion to manage WSAs in a manner tbat does not impair tbeir suit- ability for preservation.1^^ Tbat discretion must encompass tbe freedom not to act, as tbe BLM must at minimum bave autbority to decide wbicb of various tbreatening land use practices deserves its immediate regulatory attention, and wbicb can be monitored for a time until tbeir consequences are better understood.

Yet tbe BLM's decision not to regulate affects more tban tbe man- agement of tbe WSAs; as seen in SUWA, tbe decision also bas implica- tions for tbe scope of review. ̂ ^̂ Wbetber Congress can expressly dele- gate tbis type of jurisdiction-altering discretion is unclear. We submit, bowever, tbat in this case tbe BLM's exercise of autbority over tbe scope of court review is unproblematic because it is entirely ancillary to tbe execution of Congress's nonimpairment mandate,̂ '̂̂ and tbe execution of tbat mandate is adequately constrained by tbe intelligible principles identified above. In otber words, in SUWA tbe BLM did not cboose a form of action (namely inaction) primarily for tbe purpose of curtail- ing court review. Ratber, in exercising its legitimately granted and properly constrained autbority over tbe management of public lands, tbe BLM cbose not to take action witb respect to off-road vebicle use, and tbat cboice tben bad ramifications for tbe scope of review— rami- fications tbat SUWA and tbe otber plaintiffs undoubtedly lament, but tbat raise no nondelegation issue.

Tbat brings us to tbe underdelegation question in SUWA, wbicb is tbe beart of our analysis. Underdelegation turns on wbetber Congress intended to give tbe BLM discretion to cboose an unreviewable form of action in implementing tbe ELPMA. If Congress did not intend to give tbe BLM sucb discretion, tben tbere is a clear underdelegation prob- lem. If, on tbe otber band. Congress intended, even implicidy, to give tbe BLM tbe freedom to decide bow to acbieve tbe statutory goals set

163 43 U,S,C, § 1782(c) (2006), "^ See Whitman v. Am, Trucking Ass'n, 531 U,S, 457, 474 (2000); see also supra notes

70-71 and accompanying text, i'5M3U,S.C. §1782(c). lise See SUWA, 542 U.S, at 64, 1 '̂ Cf. Mistretta, 488 U,S, at 417 (Scalia, J,, dissenting) (stating that agency lawmaking,

which is ancillary to execution of laws, does not violate the nondelegation doctrine be- cause a certain amount of lawmaking inheres in the power to execute).

1720 Boston College Law Review [Vol. 5 2 : 1 6 8 7

by Congress, including the freedom to achieve those goals via inaction, then there is no underdelegation issue.

The language of the FLPMA leads us to the latter conclusion. First, the Act gives the BLM considerable discretion about how to achieve its goals: "in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue deg- radation of the lands and their resources or to afford environmental protection."1^8 This broad language leaves the BLM with room to decide both whether an action is required and, if so, whether to act "by regula- tion or otherwise."^^9 Second, nothing in the FLPMA itself envisions broad judicial review of land management decisions—rather, plaintiffs must turn to the APA to challenge BLM actions.̂ ™ That is, the FLPMA does not include the sort of expansive judicial review provisions that might lead a court to conclude that Congress did not intend to grant the agency authorify to shield its choices from outside oversight.̂ '̂ i Fi- nally, by limiting judicial review of agency inaction to cases 'Svhere a plaintiff asserts that an agency failed to take a discrete action that it is re- quired to take,"^'^^ the APA itself buttresses the conclusion that Congress intended agencies like FLPMA to have the freedom to decline to act.̂ ^̂

In short, because the FLPIVLA provides no express direction to the BLM to accomplish any specific task in any particular manner. Congress is fairly deemed to have delegated the details of implementation to the BLM.i'̂ '* This includes the authorify not to take certain actions, even if those actions would arguably help achieve Congress's goals.̂ ^^ And, in

'68 43 U.S.C. § 1782(c) (emphasis added). '69 Id. 1'» See id. ' " See id.; see also supra notes 80-92 and accompanying text. "2 SUWA, 542 U.S. at 64-65. "3 See5 U.S.C. § 706(1) (2006). " t 43 U.S.C. § 1782(c) (2006). "5 See SUWA, 542 U.S. at 63-65; cf FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 159 (2000) (citing Chevron U.S.A. Itic. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L . REV. 831, 870 (2001).

If Congress has not spoken clearly abotit how it wishes the law to be adminis- tered, it falls by default to the Executive—ordinarily in the form of an admin- istrative agency—to make the policy choices necessary to giving concrete con- tent to the law. . . . It is perfecdy consistent with the Constitution for the Pres- ident to exercise that power, because Article II devolves upon him not only the dufy but also the power to execute the laws. That is the theory, at least, of Chexrron.

Kelley, sxipra, at 870.

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turn, the authority not to act necessarüy encompasses the subsidiary authority to shield some implementation decisions from judicial review by choosing not to act.

In sum, although we question the wisdom of the message that SU- WA sends to land use planners for the reasons discussed above, we con- clude that neither separadon of powers nor due process concerns re- quired the Court to reach the merits of SUWA's claims. Thus, the Court reached a constitudonally sound outcome even as it acquiesced in what could well have been a strategic attempt by the BLM to achieve a regula- tory outcome (continued off-road vehicle use in WSAs) without court oversight.

B. Ohio Forestry: The U.S. Forest Service's Ripeness Argument Betrays Congressional Intent

We reach a different conclusion, however, in Ohio Forestry.^"^^ In that case, the U.S. Forest Service successfully wielded the ripeness doc- trine to shield from judicial review a final, ten-year Land and Resource Management Plan ("Plan") for Ohio's Wayne National Forest.'" Re- quired by the National Forest Management Act (NFMA), forest plans like the one at issue in Ohio Forestry are used to "guide all natural re- source management activities" within the covered forest.'''^ They pre- scribe the total amount of logging that may take place in the forest, the locadon of that logging, and the type of harvesting that may be em- ployed, though they do not authorize any particular logging activity.'™ The Wayne National Forest Plan, for example, allowed for logging on 126,000 of the forest's 178,000 acres, and capped the total amount of timber that could be taken off the land at roughly 75,000,000 board feet.'̂ ** The Plan estimated that within ten years logging would take place on roughly 8000 acres, 5000 of which would be subject to "'clear- cutting'"—the "indiscriminate and complete shaving from the earth of all trees—regardless of size or age—often across hundreds of contigu- ous acres. "'S' The Plan did not authorize specific logging projects, Ibut it plainly "ma[de] logging more likely" because without the Plan no tree could be

"6 523 U.S. at 729-30. ' " Id, "8 36 C.F.R. §219.1 (b) (2010). "3 See Ohio Forestry, 523 U.S. at 729-30. 18» Id. at 729. '8' Sierra Cltíb v. Morton, 405 U.S. 727, 749 n.7 (1972). '82 OhioForestry, 523 U.S. at 730.

1722 Boston College Laxu Review [Vol. 5 2 : 1 6 8 7

As encouraged by the NFMA, the Sierra Club and the Citizens Council on Conservation and Environmental Control (together "the Club") participated in all public phases of Plan development.'^^ ^̂ t the end of the day, however, the Club objected to the Plan's contents and filed suit in the U.S. District Court for the Southern District of Ohio asserting that "erroneous analysis le[d] the Plan wrongly to favor log- ging and clearcutting."'^ The Club lost on the merits before the dis- trict court but prevailed on appeal to the Sixth Circuit.'̂ ^

When the case reached the Supreme Court, however, the Court unanimously concluded that the Plan was not ripe for judicial review.'̂ ^ The Court applied the traditional ripeness test, which focuses on the "'fitness of the issues for judicial decision' and the 'hardship to the par- ties of withholding court consideration.'"'^^ In the Court's view, delay- ing judicial review would not prejudice the Sierra Club, whereas imme- diate review would interfere with the Forest Service's statutory preroga- tive to amend its overarching logging plan before allowing any particular logging project to go forward.'̂ ^ Finally, the Court noted that considerations of efficient judicial administration counseled in favor of delaying review to permit the controversy to develop into a more con- crete dispute about particular stands of trees.i^^

The Court did acknowledge two "exceptions to the traditional ripeness analysis [that] embody a deference to the legislative process": situations in which Congress either (1) provided expressly for preim- plementation review of agency rulés, or (2) prescribed a procedure "the violation of which creates an immediate cause of action."i^" (An example of the latter is the environmental review process required un- der the National Environmental Policy Act (NEPA).)'^' In the Court's view, however, neither exception applied to the Sierra Club's challenge to the Wayne National Forest Plan, because (1) Congress did not ex- pressly provide that forest plans be reviewable prior to implementation,

183 S i e r r a C l u b v. T h o m a s , 1 0 5 F . 3 d 2 4 8 , 2 5 2 ( 6 t h C i r . 1 9 9 7 ) , vacated sub nom. Ohio For- estry, 5 2 3 U . S . 7 2 6 .

184 Ohio Forestry, 523U.S. at731. 185 Id.

186 Id. at 728-32. 187 Id. at 733 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). '88 Id.

'89 Id.; see a¿so A m a n d a C. C o h e n , Ripeness Revisited: The Implications o / O h i o Forestry As- sociation, Inc. V. Sierra C\\ih for Environmental Litigation, 23 HARV. ENVTL. L . REV. 547, 5 5 1 - 53 (1999) (detailing the Court's analysis).

19» Cohen, supra note 189, at 554; see also Ohio Forestry, 523 U.S. at 737. '91 Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended in scattered sections

of 42 U.S.C. (2006)).

2011 ] What Agendes Can (and Can't) Do to Limit Judidal Review 1723

and (2) the Club took issue with the Wayne Plan itself, rather than the Service's failure to comply with a NEPA-like procedural requirement.i^^

Like SUWA, Ohio Forestry creates perverse incentives for managers of public lands. There are many benefits to a system that mandates a rigorous, highly specific, and comprehensive planning phase prior to any "public land decision making. "1̂ 3 For example:

The planning process attracts public attention when the focus of land management is on the resources an area possesses, not on the merits of a particular project. Without a project and its momentum, agency personnel are in a posture of unbiased managers rather than project proponents. Moreover, at the planning stage, with an areawide concentration and a focus on land resources, the cumulative effects of various potential resource developments can be evaluated without pressure from project sponsors. The planning process, in short, can encourage rational decision making in advance of specific land use decisions[] . . . [and] produce predictability . . . .î *

The Ohio Forestry decision ignores these benefits, turning the planning process into an unreviewable procedural hurdle to be cleared—agen- cies must comply with the letter of NFIVlA's planning requirement, but the decision gives them free reign to ignore the provision's spirit with- out risk of judicial reprimand.i^^

What is even more insidious is that, while Ohio Forestry no doubt dissuades agencies from making any firm and specific—and hence re- viewable—commitments in their otherwise unenforceable land man- agement plans, the decision simultaneously gives agencies every incen- tive to fill planning documents with as many overarching and nonspe- cific management choices as possible, î ^ By doing so, agencies are able to entrench their choices at a point at which judicial review is not yet available.19^ True, no trees fall as a result of these management deci- sions; for forests, the plans typically set broad timber cutting goals and block out areas that will be open or closed to logging. Forest plans do have real world significance, though, because they determine routes for

1̂2 See Ohio Forestry, 523 U.S. at 737 ("Congress has not provided for preimplementa- tion judicial review of forest plans.").

133 Blumm 8c Bosse, supra note 152, at 159. '«4 Id. 1̂5 See Cohen, supra note 189, at 557 (cridquing the 0/«'oî oreiir)) decision). '36 See id. at 557-58. ' 3 ' See id.

1724 Boston College Law Review [Vol, 52;1687

logging roads and otber resource-allocation issues tbat bave concrete implications for subsequent decisions about wbicb trees to cut and wben and wbere to cut tbem.̂ ^^ Altbougb courts may later bave an op- portunity to review individual logging permits, tbey are unlikely to bave an opportunity to revisit tbese early and broad resource-allocation cboices.̂ ^9 It is tberefore critical to ask wbetber allowing tbe Eorest Ser- vice to wield tbe ripeness doctrine as a shield to judicial review of its management plans comports witb tbe structure of cbecks and balances tbat Congress built into tbe NEMA.

As witb SUWA, we begin our analysis witb a brief discussion of Arti- cle III and individual rights infringement.20" Like the ELPMA, the NEMA implicates no Article III infringement concerns. In Ohio Forestry, the Supreme Court chose not to review the Eorest Service's land man- agement plan after considering the interests of tbe parties, tbe agency, and the courts.^^^ Tbe Court did not expressly indicate wbetber tbat bal- ancing test was constitutionally required or instead more prudential in origin, but regardless, a balancing test tbat expressly weigbs tbe inter- ests of tbe courts mitigates concerns about executive encroacbment on tbe judicial spbere.2''2 Likewise, precluding judicial review of tbe Plan did not violate Sierra Club's due process rigbts because, as in SUWA, tbe stakebolders in Ohio Forestry lacked any liberty or property interest in tbe management of tbe Wayne National Eorest.203

Tbe nondelegation analysis again proves more complicated. In Ohio Forestry, tbe question is wbetber Congress could constitutionally delegate to the Eorest Service the discretion to implement forest man- agement decisions through unreviewable planning documents.20* We begin witb tbe first two subparts of our nondelegation rubric—(1) wbether tbe NEMA impermissibly delegates lawmaking power, and (2) wbether it provides an intelligible principle to limit tbe Service's forest management decisions. Tbese two questions pose no difficulty. Eirst, tbe detailed management cboices laid out in tbe Plan for tbe Wayne National Eorest fall comfortably witbin tbe range of executive powers embraced by tbe Court's functional nondelegation doctrine.2f5 In addi-

198 See id.

199 See id.

200 See supra notes 157-160 and accompanying text, 2»! Ohio Forestry, 523 U,S, at 733.

203 See id.

20'' See Cohen, supra note 189, at 557, 205 See Mistretta, 488 U,S, at 372; see also supra note 163 and accompanying text.

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tion, the Forest Service, unlike Congress, has both the bandwidth and expertise to regulate federal land use through planning statements.2O6 Further, the NFMA provides intelligible principles that properly limit the Forest Service's authority to oversee federal lands through land and resource management plans. For example, the Act supplies detailed requirements regarding the criteria the Service may use in developing the plans, the degree of public participation required, and the manner in which the plans must be reviewed and revised.2O'

Next, we must ask whether the NFMA improperly delegates judi- cial responsibilities to the executive, and whether it properly constrains any agency choices that have ramifications for the scope of judicial re- view. It must be acknowledged up front that, by leaving room for the Forest Service to implement management decisions via unreviewable planning documents,208 Congress delegated to the Service some power over the timing of review of substantive land use choices—a power that is plainly judicial in nature. That said, we nevertheless conclude that Congress did not impermissibly delegate judicial responsibilify to the Forest Service, and that the NFMA adequately constrains the Forest Service's choices about when to proceed via an unreviewable planning document. The NFMA directs the Forest Service to begin its land use planning by writing overarching management plans for each forest.209 The jurisdictional consequences follow from the nature of planning documents that anticipate logging but do not actually "authorize the cutting of any trees. "210 in other words. Congress has constrained the agency's choice of form, giving the Forest Service littie or no abilify to manipulate the ripeness doctrine to evade judicial review.211 Therefore, the NFIVLA poses no nondelegation problem.

That brings us, finally, to the underdelegation prong of our test. It is here that we begin to see the risk of unthinking application of stan- dard reviewabilify doctrines. The Ohio Forestry Court's application of the ripeness doctrine properly considered the interests of the parties, the agency, and the court2i2 At no point, though, did the Court consider whether Congress intended the Forest Service to have the abilify to

2''6 See supra note 171 and accompanying text. 2'>'16U.S.C;§1604(2006). 208 See id. § 1604(a) (instructing the Secretary of Agriculture to "develop, maintain,

and, as appropriate, revise land and resource management plans for units of the National Forest System") (emphasis added).

2'»See¿d. § 1604. 2'» Ohio Forestry, 523 U.S. at 729. 2" See id. 2'2 See id. at 733.

1726 Boston College Law Review [Vol. 52:1687

shield some of its substantive policy choices from judicial review by en- sconcing those choices in the required forest plans. '̂̂ True, the Court noted that Congress could have expressly provided for preimplementa- don review of those plans.^'^ But placing the onus on Congress to pro- vide for preimplementation review reverses the usual presumption.^'^ As we noted earlier, in other circumstances, the Court has been quite adamant that ambiguous statutory language should not be read to del- egate to an agency the authority to shield its substantive decisions from review.2'0 Yet the Ohio Forestry Court read the absence of preimplemen- tation language in the NFMA to do just that—to delegate to the Forest Service the authority to shield its substantive planning choices from review by including them in a document that makes important policy choices about the location, amount, and timing of logging but does not yet allow any trees to be cut.̂ ''̂

Had the Court recognized the need to consider congressional in- tent before denying review, it might well have concluded that Congress intended to allow for preimplementation review of forest management plans. For example, the NFMA expressly requires the Forest Service to "provide for public participadon in the development, review, and revision of land management plans" '̂̂ and to "appoint a committee of scientists who are not officers or employees of the Forest Service" to "provide sci- entific and technical advice and counsel on proposed guidelines and procedures to assure that an effecdve interdisciplinary approach is pro- posed and adopted."^^^ It stands to reason, then, that Congress may have intended those stakeholders to be able to challenge the plans in federal

213 SeeCoben, supra note 189, at 556-61 (describing the curious regulatory regime en- dorsed, at least implicitly, by the Court in Ohio Forestry, under which agencies may "imple- ment in discrete steps a plan that would likely have been deemed arbitrary or capricious if reviewed as a whole"; as a practical matter, this outcome may "undermine the environ- mental planning process, because a court may be unable to review an unreasonable management plan until after tbe majority of the plan has already been implemented in discrete, often irreversible, steps").

2''» Ohio Forestry, 523 U.S. at 737. 2'5 On at least one other occasion, the Court has also indicated that the ripeness analy-

sis could be altered if Congress expressly provided for preimplementation review. In Lujan, tbe Court noted that "[s]ome statutes permit broad regulations to serve as the 'agency action,' and thus to be tbe object of judicial review directiy, even before the concrete ef- fects normally required for APA review are felt." 497 U.S. at 891. As in Ohio Forestry, the default rule from Lujan is that an agency's broad policy documents are not reviewable un- less Congress expressly provided for preimplementation review. See id,

21̂ Kucana, 130 S. Ct. at 839-40; êe also supra note 5 and accompanying text. 2" See OhioForestry, 523 U.S. at 737. 2'8 16 U.S.C. § 1604(d) (2006) (empbasis added). 2'9/d. § 1604(b)(l) (emphasis added).

2011] What Agencies Can (and Can't) Do to Limit Judiäal Lieview 1727

court: Congress's emphasis on collaboration and public accountability with respect to the development, review, and revision of forest manage- ment plans evinces its intent to make those plans judicially enforceable. In other words, the text of the NFMA suggests that Congress intended to give stakeholders a right of judicial review, not to grant the Forest Ser- vice the power to curtail review by acting via unenforceable planning documents.220

There is room for disagreement on this point. A court could rea- sonably conclude that Congress did not intend to allow for preimple- mentation judicial review of forest plans. Our argument does not hinge on the outcome of this analysis of congressional purpose. Rather, we seek only to emphasize that in reviewability cases, as in statutory inter- pretation cases, "[s]eparation-of-powers concerns . . . caution . . . against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain."22' To effectuate this principle in the ripeness context, courts should presume that im- portant agency planning documents are ripe for review as soon as they are drafted, unless Congress has specifically instructed the courts not to review such measures prior to enforcement. Changing the ripeness analysis in this way would not dramatically expand the category of re- viewable agency actions, but it would better ensure that courts do not unwittingly allow agencies to shield from court oversight policy choices that Congress intended to be reviewable. Reasonable minds may dis- agree over the correct reading of the NFMA, but whatever one's views about that particular statute, application of our rubric would force courts to face head-on the important question of underdelegation.

The point is important enough to restate in different terms. In Ohio Forestry, the Court adopted a flawed default rule of reviewability: no pre- implementation review unless Congress has expressly authorized such review (or has created actionable procedural safeguards) .222 As the Court recognized in Kucana, however, "plac[ing] in executive hands au- thority to remove cases from the Judiciary's domain" is an "extraordi- nary delegation."223 Consistent with the traditional "presumption favor- ing interpretations of statutes [to] allow judicial review of administrative action,"224 courts should not read statutes to accomplish such a delega-

22» See id. 22ii:Mcana, 130S. Ct. at831. 222 Ohio Forestry, 523 U.S. at 737 (citing Lujan, 497 U.S. at 891). 223iCucana, 130S. Ct. at831. 221 Id.

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tion "absent a clear statement" from Congress.̂ ^^ In the absence of a clear statement, then, courts should presume that an agency lacks the authority to shield its policy choices from judicial review by imbedding those choices in preliminary and hence unripe planning documents.

Our rubric, applied in conjunction with the traditional ripeness analysis, solves this problem by forcing courts to address the possibility that Congress intended, albeit implicitly, to allow immediate judicial review of certain agency actions. In such a case, any attempt by an agency to curtail review by wielding the ripeness doctrine as a shield should be considered an improper encroachment on Congress's consti- tutional prerogative to define and confine agency authority.

C. Amador County; The D.C. Circuit Recognizes the Problem of Underdelegation

Finally, we turn to the Amador County case,226 ¿̂ which the court considered the reviewability of the Secretary of the Interior's so-called "'no-action' approval" of a gaming compact between the Buena Vista Rancheria of Me-Wuk Indians and the State of California.̂ ^^ The court concluded that the approval was reviewable,̂ ^^ so we need not proceed through our four-part rubric to the assess separation of powers and due process implications of a counterfactual decision to curtail review. The decision is nevertheless relevant to this discussion because the court appears to have been concerned about the issue we call "underdelega- tion"—that is, the absence of any statutory authority for the agency to hide behind reviewability objections—^yet the opinion itself is somewhat opaque on this point,̂ ^^ The case therefore illustrates our dual claims, first that courts sometimes reach out to review ostensibly unreviewable agency actions out of concern about agency overreaching, and second that our rubric would provide a sounder footing for such opinions.

Some background is necessary to understand the reviewability is- sue in Amador County. As its name suggests, the Indian Gaming Regula- tory Act (IGRA) 2*0 regulates gaming on tribal lands.̂ *! As relevant to Amador County, IGRA requires, among other things, that the gaming take place on "Indian lands," and that it "be conducted in conformance

225 Id.

226 640 E3d 373, 380 (D.C. Cir. 2011). 22' Id. at 375. 228 Id.

229 See id. at 379-83. 230 25 U.S.C. §§ 2701-2702 (2006). 231 Amador Cnty., 640 E3d at 376.

2011 ] What Agendes Can (and Can't) Do to Limit Judidal Review 1729

witb a tribal-state compact tbat bas been approved by the Secretary" of the Interior.232 The Secretary may expressly approve the compact, or may implicitly approve it by "do [ing] notbing, in wbicb case tbe com- pact is deemed approved after forty-five days 'but only to tbe extent tbe compact is consistent with the provisions' of IGRA."23^ Alternatively, the Secretary may disapprove the compact, "but only if it violates IGRA[,] otber federal law," or otber federal obligations.234

In Amador County, tbe Secretary approved, by iroLCtion, an amended compact between tbe Buena Vista Rancberia of Me-Wuk Indians and tbe State of California.235 Tbat is, tbe Secretary did not act on tbe Tribe's request for compact approval witbin forty-five days, and be sub- sequently publisbed a notice of approval in tbe Eederal Register in ac- cordance witb IGRA.236 Amador County tben sued tbe Secretary alleg- ing tbat tbe compact violated IGRA because it did not meet tbe Act's "Indian lands" requirement.237

Tbe Secretary argued tbat tbe County's claims were unreviewable for a variety of reasons, only one of wbicb is relevant bere: tbat tbe no- action-approval was not a reviewable agency action under APA section 706(1).238 Tbe U.S. District Court for tbe District of Columbia did not reacb tbis issue because it found the no-action approval unreviewable for otber reasons.239 Tbe D.C. Circuit, tbougb, relied on tbe structure of IGRA240 and tbe "strong presumption tbat Congress intends agency action to be reviewable "2̂ 1 to find tbe approval reviewable.

Tbe standard for deciding wbetber agency inaction is reviewable derives, of course, from SUWA: inaction is reviewable under APA sec- tion 706(1) only wben "an agency failed to take a t e r e t e agency action tbat it is required to take."^'^^ Tbe question for tbe Amador County court, tberefore, was wbetber "approval of tbe Me-Wuk compact tbrougb in- action fails [tbe] discreteness requirement"

232 Id.

233 Id. (quoting 25 U,S,C, § 2710 (d) (8) (C)), 23< Id. (citing 25 U.S.C, § 2710(d) (8) (B)), 235 Id. at 377, 236/d,; seealso25 U,S,C, § 2710(d)(8)(D), 23' Ainador Cnty., 640 K3d at 377. 238 Id.; 5 U , S , C , § 7 0 4 ,

239 Axnador Cnty., 6 4 0 F , 3 d a t 3 7 7 ,

2''o Id. a t 3 8 0 ,

2« Id. 2« SUWA, 542 U,S, at 64, 2''3 Amador Cnty., 640 E,3d at 382,

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In assessing this issue, the court focused on the fact that the IGRA limits the Secretary's authorify to approve a compact by inaction. Spe- cifically, "compacts deemed approved through secretarial inaction be- come effective 'only to the extent the compact is consistent with the provisions of [IGRA].'"2'*4 As a direct consequence of this limit on no- action-approvals, the court continued, the Secretary of the Interior has "an obligation . . . to affirmatively disapprove any compact" that violates IGRA.245 That obligation, in turn, means that when someone chal- lenges an approved compact as violating IGRA, the court has "a dis- crete agency inaction to review—the . . . failure to disapprove the com- pact despite its [alleged] inconsistency with the Act. "246

While internally consistent, this reasoning is too acrobatic to be particularly compelling, working backwards as it does from an affirma- tive limit on no-action-approvals to an implicit agency failure to decide not to disapprove. Far more compelling is the evident underdelegation concern that underlies the court's approach. In IGRA, Congress drew some lines about which kinds of compacts could be approved, which should be disapproved, and how the Secretary may signal approval. These lines turn on "consisten[cy] with" IGRA, which in turn requires interpretation of IGRA's terms—necessarily a task for the courts.2''7 Congress must therefore have intended the courts to play a role in re- viewing the Secretary's approvals and disapprovals—otherwise, there would be no opportunify for the courts to assess "consisten [cy] with" IGRA.248 But that in turn means that any approval or disapproval deci- sion must be reviewable agency action—even a no-action approval. Otherwise, the Secretary could always escape review by issuing only no- action approvals. In other words. Congress plainly intended the courts to play a role in reviewing IGRA approvals and disapprovals; permitting the Secretary to defy that intent by issuing unreviewable no-action ap- provals would encroach on Congress's power to delimit agency author- ify and, in turn, undermine the legitimacy of the agency's policy choic- es. Thus, we suggest, the Amador County court could have reached the same result (no-action-approvals must be reviewable) with greater clar-

215 Id.

216 Id.

2'" Id. at 380 (finding a necessary role for the courts because IGRA "provides that only lawful compacts can become effective," and "someone—i.e., the courts—must decide whether those provisions are in fact lawful").

218 Id.

2011 ] Wiat Agendes Can (and Can't) Do to Limit Judiäal Review 1731

ity and confidence by considering the separation of powers implica- tions of the Secretary"s claim of unreviewabüity.

CONCLUSION

Agencies are not passive participants in court oversight of adminis- trative action. Rather, they actively modulate oversight by structuring their actions in ways that may induce courts to delay or deny review. We argue that courts should recognize this tactical activity for what it is: executive curtaüment of judicial review and, possibly, encroachment on legislative and judicial prerogatives. When a case squarely presents the question whether Congress may delegate to an agency the authority to shield its decisions from judicial oversight, courts almost universally recognize that such an "extraordinary delegation"" would raise separa- don of powers concerns. Yet the same concerns lurk in the background of all so-called "reviewabüity" cases. In particular, these concerns arise when Congress has created an administrative regime that expressly or implicidy anticipates expansive judicial review and an agency wields reviewabüity as a shield against court oversight, thereby threatening the legitimacy of both the governing regime and the agency's role in im- plementing that regime.

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