Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Judicial Review

Abstract

This is the second of two articles developing a “standards-based” approach to the rule of law in the context of administrative decisions concerning government benefits. We base our standards-based theory on two core principles. First, the rule of law attaches whenever government officials make decisions involving the application of legal standards - and hence the rule of law safeguards of due process and judicial review attach as well. 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 the Constitution generally requires Congress to provide standards, it follows that Article III judicial review of administrative action is generally required to promote agency compliance with the rule of law.

In a previous Article in the Administrative Law Review, Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process, 57 Admin. L. Rev. 107 (2005) we criticized the Court’s current entitlement approach to procedural due process in government benefit cases. In the government benefit context, that approach leaves essential procedural safeguards, including notice and the right to be heard, contingent on legislative discretion. We argued that the current approach is the product of historical misunderstandings and doctrinal missteps, and we advanced the standards-based approach to the rule of law as a means of bringing coherence to due process doctrine and securing due process protections for government benefits. In this article, we offer a similar critique of the current doctrine concerning judicial review of government benefits, arguing that it too is the product of historical misunderstandings and doctrinal missteps and that a standards-based approach to judicial review would provide a superior approach to this fundamental constitutional issue.

Our aim is to restore judicial review to its rightful place of ensuring that the rule of law is followed in the allocation of government benefits. Part I of the Article examines Chief Justice Marshall’s opinion in Marbury v. Madison, which involved the unlawful denial of a government benefit (Marbury’s commission a justice of the peace) and thus indicates that the Constitution compels Article III review of government benefit decisions. That Marbury involved judicial review of a government benefit decision has been overlooked by other scholars and by the Supreme Court, and suggests that preclusion of review under the traditional public rights doctrine rests on flawed premises. Part II analyzes the “public rights” doctrine. In particular, we contend that the “public rights” doctrine, which apparently permits Congress to foreclose judicial review of decisions concerning government benefits rests on a fundamental misreading of the Court’s early decision in Murray’s Lessee v. Hoboken Land & Improvement Co. A careful examination of the case reveals that the public rights doctrine does not rest on sovereign immunity in suits against the government, as is commonly assumed, but rather on the premise that the enforcement of public rights is an executive act. Because a number of significant Supreme Court decisions incorporate a flawed understanding of Murray’s Lessee, the resulting doctrine is a jurisprudential morass that ultimately permits Congress to curtail or dispense with this essential rule of law safeguard. Properly understood, however, the doctrine justifies the determination of facts and law by the Executive Branch as part of the enforcement of public rights; it does not, and cannot justify legislative preclusion of judicial review of such decisions. Part III examines other lines of Supreme Court precedent addressing legislative preclusion of judicial review by Article III judges, including due process cases and the “jurisdiction stripping” debate. These decisions suggest that preclusion in ordinary cases does not violate either due process or Article III absent an independent constitutional violation. The precise basis and contours of this doctrine, however, remain muddled at best. More fundamentally, this result seems to us irreconcilable with the rule of law. Thus, our examination of the case law in these areas leads us to the conclusion that the standards-based approach offers a superior foundation for analyzing the preclusion of review.

Finally, Part IV elaborates on our standards-based approach to judicial review, explains its implications for several issues that arise in conjunction with legislative preclusion of review, and compares our approach to the large and contentious literature on legislative preclusion of judicial review. We end Part IV by contrasting two government benefit systems: the Social Security disability system, which is subject to meaningful review by Article III courts, and the Veterans Benefit system, which is not. Experience with these two systems supports our contention that Article III judicial review is an essential element in the protection of rule of law.