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Presidential Power: Judicial Review of Agency Action

We have the University of Washington School of Law to thank for parts of this outstanding review of Presidential power.

Examples of How Courts Review Agency Decisions when the Agency has Reversed a Previous Policy Position

The following is an example of how courts review agency decisions when the agency has reversed a previous policy position.  In two of the cases -- State Farm and Mass v. EPA -- the change in the agency's position coincided directly with a change in Presidential Administration. In all of the cases some members of the Court acknowledge the role of politics in agency decision-making, though they disagree as to whether that should change the judicial review calculus. 

(1) Motor Vehicles Manufacturers Association v. State Farm, 463 U.S. 29 (1983), link to full case in Google Scholar

(2) Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), Google Scholar link, Legal Information Institute link

You only need to read parts I, II, V, VI, and VII of the opinion. We will not be discussing the standing analysis). 

(3) FCC v.  Fox Television Stations, Inc., 556 U.S. 502 (2009), Google Scholar link, HeinOnline link (PDF of official version) (UW restricted).

(4) 5 U.S.C. section 706 (the judicial review section of the Administrative Procedure Act)

Examples of Judicial Review of Agency Action

The readings below involve the following:

  • Encino Motorcars, a 2016 decision from the U.S. Supreme Court, explores how courts might decline to defer where an agency changes its views and fails to take reliance interests into account. Title II (Sections 201 and 202) of H.R. 5recently passed the House. If passed into law, Title II of H.R. 5, also known as the Separation of Powers Restoration Act, arguably would eliminate Chevron deference.
  • Auer deference,which involves judicial deference to an agency’s interpretations of its own regulations, is currently at play in a case pending before the U.S. Supreme Court involving an opinion letter issued by the Obama administration on transgender rights. 
  • The Supreme Court’s 1985 decision in Heckler v. Chaney, which stands for the proposition that agency non-enforcement decisions are generally unreviewable by the courts.  In other words, Heckler tells us that there is a rebuttable presumption against judicial review of non-enforcement policies, such as executive branch policies speaking to the non-enforcement of immigration laws and federal drug laws.


Encino Motorcars, LLC v. Navarro, No. 15-415, 579 U.S. ___, 136 S.Ct. 2117 (June 20, 2016), link to Supreme Court website

Regulatory Accountability Act of 2017, H.R. 5, 115th Cong., link to

Christopher v. Smithkline Beecham Corp., 567 U.S. ___, 132 S.Ct. 2156 (2012), link to Supreme Court website.

(This case will expose you to Auer deference and to how Auer deference may be inapplicable when an agency’s change in position would result in unfair surprise to those who are regulated. )

Heckler v. Chaney, 470 U.S. 821 (1985), Google Scholar link

(This case sets up a general presumption of non-reviewability for non-enforcement decisions.)

Additional Resources