A Standards-Based Theory of Judicial Review and the Rule of Law

Abstract

The constitutionality of legislative preclusion of judicial review has received considerable attention from constitutional and administrative law scholars. We join this debate by proposing a new approach: a standards-based theory of judicial review based on two fundamental principles. First, whenever government officials make decisions involving the application of legal standards, the rule of law - and hence the rule of law safeguards of due process and judicial review - attach. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and control discretion.

Because the availability of judicial review is tied to the existence of standards and standards are in most instances constitutionally required, the standards-based approach supports a broad right to Article III judicial review that would encompass most administrative decisions, including decisions concerning government benefits. We are not the first scholars to argue that the Constitution requires Article III review of government benefit decisions (or other agency action), but the standards-based approach offers a novel and, we believe, more coherent and workable approach to these fundamental constitutional issues.

In support of these conclusions, we demonstrate how the Court's current approach to preclusion is plagued by doctrinal incoherence that ultimately permits Congress to curtail or dispense with this essential rule of law safeguard. We also explain how a standards-based approach can be reconciled with constitutional text and Supreme Court authority, noting in particular that Marbury v. Madison, the seminal opinion concerning the rule of law, indicates that Article III review of the government benefit decisions of the Executive Branch is constitutionally compelled.