LibGuides: Presidential Power: Judicial Review of Agency Action

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

Motor Vehicle Mfrs. Ass'n v. State Farm (edited for class)

(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).

Massachusetts v. EPA

PDF of slip opinion from Supreme Court

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

FCC v. Fox Television Stations (edited for class)

(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 Congress.gov.

Note that Congress.gov allows you to follow a bill's progress through Congress. H.R. 5 passed the House on Jan. 11, by a vote of 238 to 183. On Jan. 12 it was received in the Senate and referred to the Committee on Homeland Security and Governmental Affairs.

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. )