The History of the Judicial Review of Administrative Power and the Future of Regulatory Governance

Traditionally, judicial review has afforded an important check on the exercise of administrative power. First, judicial review functions to protect the legislative intent behind the statutory authorization of the exercise of administrative power. Pursuant to the conventional model, an administrative agency exercises restricted legislative and judicial functions under judicial scrutiny to insure compliance with congressional intent. Judicial review insures that a congressional delegation of power . . . must be accompanied by discernible standards, so that the delegatee\u27s action can be measured for its fidelity to the legislative will. Additionally, the opportunity for judicial review of administrative action corrects and prevents abuses of government power exercised by non-elected bureaucrats and administrators such as corruption and bribery, incompetence, inaction, bias and prejudice. Moreover, judicial review has functioned to insure that the common law requirements of clarity, consistency, and fundamental fairness are observed by regulatory agencies. While the above-mentioned reasons remain valid justifications for judicial review, this article focuses on the historical development of judicial review in protecting two distinct, but interrelated, philosophical values embedded within the foundations of modern constitutional government. The first involves the suspicion of government power as institutionalized in the constitutional doctrine of the tripartite separation of powers. The second constitutional value safeguarded by judicial review concerns the protection of personal autonomy through individual rights. Based upon the historical development of American administrative law, the article recalls that judicial review, which checks the power of un-elected bureaucrats, remains critical for maintaining the suspicion of government power and protecting individual autonomy in the regulatory state. This is not to suggest that autonomy and suspicion are the only or paramount values of the liberal political theory that underpins modern constitutional government. Liberal theory, for example, also places a high premium on equality and neutrality to facilitate participation in the political process. Indeed, the paradox of liberal theory is that while it defines freedom in terms of personal autonomy, it depends at the same time on individual commitment to participate in the common endeavor; and, while it fosters suspicion about government power, it places confidence in the rule of law. As shall be discussed, this tension may help to explain the oscillation between deference and suspicion that has characterized the history of the judicial review of administrative actions. The Article traces the development of the two constitutional values of autonomy and suspicion through three historical periods: (1) the origins of judicial review as the guardian of autonomy and suspicion during the eighteenth and nineteenth centuries; (2) judicial review from the New Deal through the Administrative Procedure Act and the movement from suspicion to deference as well as the refashioning of the notion of autonomy; and (3) the administrative state from the 1960s in terms of the limits of autonomy and the oscillation between suspicion and deference. The Article thus suggests that the historical development of administrative law in the United States has bequeathed a heritage that serves to inform the increasingly pervasive reality of the national and global regulatory regimes