Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia

Abstract

INTRODUCTION In Washington v. Trump, (1) the Ninth Circuit decision on the Administration's executive order on immigration, (2) a critical moment occurred when the panel had to explain why the order was reviewable at all. Precedents like Kleindienst v. Mandel (3) had said that "when the Executive exercises [immigration authority] on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion." (4) The panel's response was to invoke an important distinction between the reviewability of general rules, on the one hand, and the reviewability of specific applications, on the other: [T]he Mandel standard applies to lawsuits challenging an executive branch official's decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President's promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard. (5) As we will see, this conception of reviewability (6)--keyed to a distinction between general policies or rules and specific applications, with the former subject to review even if the latter would not be--is one that Justice Scalia wrestled with throughout his reviewability jurisprudence. Yet it is more or less directly the opposite of Justice Scalia's own conception. Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that "general programs" and "general policies" are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the proper business of courts is to review specific applications of agency rules to particular parties. Notice that there are actually three possible subjects of review in play here: nonbinding policies and rules (such as "interpretive" rules); binding general rules ("legislative rules"); and applications. More on this shortly. For now, the focus is on the distinction between review of general and specific agency action, whether that action is embodied in a legally binding rule or in a nonbinding policy. The approach featured in Washington v. Trump, by contrast, was propounded in several opinions by Justice John Paul Stevens. On that view, agencies should be more afforded more, not less, discretion to apply policies or rules in particular cases, whereas the proper business of the judiciary is to review the general legality of overall programs, policies, and rules. The Scalia view and the Stevens view obviously differ on the proper role of courts in an overall system of administrative law. For Justice Stevens, the role of courts is to say what the general rules of law are, leaving agencies (reasonable) discretion in application. For Justice Scalia, the role of courts is to decide cases, reviewing the legality of rules only insofar as necessary to that function--as a byproduct of deciding cases. Furthermore, the two approaches differ as to the relationship between reviewability and the idea--perhaps Justice Scalia's most famous contribution to legal theory--that the rule of law is best understood as "a law of rules." (7) On the Stevens view, reviewability should attempt to ensure that courts review the overall legality of programs and policies to keep the administrative state within the broad bounds of the rule of law. (8) On that view, the "rule of law" is a "law of rules" in the sense that judicial power to say what the law is entails a power to examine the legality of general rules. On the Scalia view, by contrast, the rule of law is a law of rules in a quite different sense. …