Legal Commentary

One of the topics of the conference I blogged about last Thursday was New Governance.  In thinking about my admin law class this last semester one of the ideas that I kept coming back to concerned the availability of judicial review over New Governance activities.  A few years ago I wrote an amicus brief in Norton v. Southern Utah Wilderness Alliance, where the Court held (unanimously) that the APA's definition of "agency action" reviewable by courts did not include performance of an agency's ongoing responsibilities to manage certain lands in the west.  Southern Utah is, in my view, an unfortunate decision, exactly because more and more, agency action is taking the form of exactly such ongoing management.

This is where the New Governance (and, by extension, my conference paper) came in.  It seems that as the style of administrative regulation continues to evolve in the direction of such ongoing, programmatic activities, our traditional understanding of the availability of judicial review will come under pressure.  This is even more the case to the extent agencies regulate by coordinating private party actions, rather than directly regulating themselves (another characteristic of New Governance). 

In my paper I identify two major doctrinal hurdles to judicial review of New Governance activities: standing, and courts' resistance to reviewing the type of ongoing activity challenged in Southern Utah.  I believe both hurdles can be overcome.

The standing hurdle arises from the indirect nature of New Governance regulation, which raises questions under current doctrine about causation and redressability.  The paradigmatic example of the Court's resistance to allowing standing in a situation like this is Simon v. Eastern Kentucky Welfare Rights Org..  In E. Kentucky the Court held that indigent hospital patients did not have standing to argue that the IRS made it too easy for hospitals to retain charity status while limiting indigent care, thus injuring the plaintiffs, on the ground that it wasn't clear that an order to the IRS forcing them to tighten up their rules would in fact lead the hospitals to provide more indigent care. In the paper I suggest that reconceptualizing the injury in these cases to mirror what government actually does in New Governance provides a principled basis for tweaking standing law to allow judicial review, that wouldn't amount to a wholesale abandonment of current standing doctrine.

The Southern Utah issue is somewhat more intractable, in that it would require a more explicit change in judicial doctrine before courts would regularly review ongoing agency action.  Still, I suggest in the paper that this move is called for in order for judicial review to be appropriate.

Obviously, this is a very limited summary of what I argue in the piece.  If you're interested in this topic I encourage you to download and read the paper; it is short and (I hope) an easy read.  I'd love to hear your thoughts and reactions.