69 uirement of rationality. For example, if the prosecutor has, over eriod of time, been charging only blacks with certain crimes despite fact that white violators are also brought to his attention, this ans that his basis for prosecution, however stated, is inherently pect68 and that courts will scrutinize the reasons offered for the arently invidious discrimination with particular care.® To be sure, none of these notions is particularly new or revolutionIndeed, they are the core concepts upon which equal protection trine is built. I offer them here only to demonstrate that methods available to control agency discretion even in cases where prostive rule-making is impossible. Nor need these methods always olve constitutional adjudication. Even in situations where the ncy is able to offer plausible reasons for distinguishing between erent cases, it is still possible for the courts to limit the scope of ncy choice. The administrative agencies, after all, derive all of their egated power from statutes passed by the legislative body, and it he task of the courts to interpret those statutes in cases which are perly brought before them. Once again, the Administrative Procedure Act is quite explicit: o the extent necessary to decision and when presented, the reviewcourt shall decide all relevant questions of law, interpret constiional and statutory provisions, and determine the meaning or apcability of the terms of an agency action."70 If the agency acts wond its statutory authority as the relevant statute is interpreted by courts, the agency action must be reversed.71 The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.' . . . But the Courts are the final authorities on issues of statutory construction . . . and ‘are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.' . . . 'The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia.... 972 8. Cf. Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964). 9. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886). 0.5 U.S.C. § 706 (1970). 1. See, e.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850-52 (D.C. Cir.), 1. denied, 403 U.S. 923 (1971); Mary Carter Paint Co. v. FTC, 333 F.2d 654 (5th Cir. 4). 2. Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 272 (1968), quoting from RB v. Hearst Publications, 322 U.S. 111, 131 (1944). See also NLRB v. Brown, 380 6. 278, 291 (1965); American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965). Of course many congressional delegations are phrased in extreme broad terms and, literally read, they permit an exceedingly wide rang of agency choice. But the very breadth of such statutes provides a argument for a narrowing judicial construction in accordance wi congressional intent.73 Advocates of administrative discretion seem forget that the courts construe broad statutory mandates all the tin -that indeed, the courts have no choice but to do so when faced wi the problem of applying a vaguely worded statute to a specific set facts. As Professor Jaffe has said, [t]he scope of judicial review is ultimately conditioned and determined by the major proposition that the constitutional courts of this country are the acknowledged architects and guarantors of the integrity of the legal system. . . . An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law. The very subordination of the agency to ju dicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law; the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the 'common law' and the ultimate guarantees associated with the Constitution.74 It may nonetheless be true that in situations where the agency se out to limit and define its own mandate by adopting prospective rule to guide it in consideration of individual cases, the courts have som obligation to respect agency expertise. But when the agency has de faulted when it purports to do no more than follow the vagu statutory mandate without additional prospective rules of its ownthe courts have no obligation to respect undemonstrated or hypc thetical expertise. Instead, the reviewing court should look at th statute on its own and determine for itself whether the agency de cision is within the congressional purpose. In this way, judges ca narrow the scope of agency discretion even if the administrators ar unwilling to narrow its Scope themselves. IV Justice Jackson argued years ago that administrative experience is of weight in judicial review only to this point—it is a persuasive reason for deference to the Commission in the exercise of its discretionary powers under and within 73. See Burlington Truck Lines v. United States, 371 U.S. 156, 166-68 (1962). 74. JAFFE, supra note 7, at 589-90. the law. It cannot be invoked to support action outside of the law. And what action is, and what is not, within the law must be determined by courts, when authorized to review, no matter how much deference is due to the agency's fact finding. Surely an administrative agency is not a law unto itself . . . . 75 Mr. Justice Jackson wrote those words in a dissenting opinion. His warning was not heeded in that case, and it has gone largely unheeded to the present day. Because of that neglect, we are now surrounded with agencies that are in fact laws unto themselves. The well-intentioned reformers of another generation have created a monster which threatens to destroy our very system of law. And yet, although the danger is real, I cannot help sharing the underlying optimism of Professor Davis. Administrative discretion was created by law, and there is no inherent reason why the law should be unable to control it. The legal devices which we could use for this purpose were all formulated years ago and remain perfectly serviceable. Professor Davis and others have alerted us to the peril, and a broad public consensus is beginning to coalesce in favor of doing something about unbridled and arbitrary administrative power. If that consensus is properly marshalled and the legal tactics carefully planned, King Rex can indeed be turned into a constitutional monarch. Failing that, we may still be able to pull off a bloodless coup d'etat and send the King packing to a land that does not purport to govern its affairs by rules of law. 75. SEC v. Chenery Corp., 332 U.S. 194, 215 (1947) (Jackson, J., dissenting). ARTICLES [From the National Journal, May 19, 1979] THE 1979 TARGETS FOR THE REGULATORY ANALYSIS REVIEW GROUP Having completed eight reviews of expensive regulations during the past year, the Carter's Administration's Regulatory Analysis Review Group is circulating a list of 35 forthcoming rules that are candidates for review during the rest of 1979. Sixteen of the regulations were said to be "prime candidates" for study by the group, which tries to assure that agencies write their regulations to avoid unnecessary inflationary costs. Most of the prime candidates had estimated annual costs of more than $100 million-one of the criteria the group uses for selecting regulations for review. The most expensive was the Environmental Protection Agency's forthcoming regulation to limit pollution emissions from light trucks in 1983 and beyond; it is said to have a five-year compliance cost of $3.8 billion. Following is the review group's list of regulations it may review, organized by agency with prime candidates identified with an asterisk. ENERGY DEPARTMENT Gas price differential—to regulate the difference in price between leaded and unleaded gasoline.* Building energy performance standards—to require buildings in various climatic regions to meet energy consumption standards.* Energy conservation and consumer appliances-to set energy efficiency standards for various home appliances.* Entitlements subsidies for synthetic fuels-to provide subsidies to some projects for shale oil, coal slurry, alcohol in gasoline and fuel derivatives from municipal waste. Crude oil allocation and pricing-to institute standby permanent price and allocation regulations for crude oil products. Emergency natural gas-to set rules for the purchase and allocation of natural gas during a presidentially declared emergency. Natural gas curtailment priorities—to review such priorities and issue proposed regulations. ENVIRONMENTAL PROTECTION AGENCY Effluent guidelines for various industries-to set effluent guidelines for the leather tanning, petroleum refining, textile, timber products, steam electric, and iron and steel industries.* Underground injection wells-to set operational standards for deep well and shallow well injection of hazardous wastes.* Visibility plans to protect visibility near national parks and wilderness areas.* Air quality deterioration—to require states to develop plans and regulations to prevent significant deterioration of air quality in areas that currently meet standards for carbon dioxide, nitrous oxides and ozone. Carcinogenic air policy—to outline procedures for regulating the emission of suspected carcinogens.* Water quality criteria-to establish ambient water quality criteria for 65 pollutants. Water quality standards-to revise the standards for some or all the toxic substances for which it has published water quality criteria. Emissions of light-duty trucks-to reduce the emissions of hydrocarbons, carbon monoxide and nitrous oxide for 1983 and later-model-year light trucks. Benzene emissions—to regulate benzene as a hazardous air pollutant. Carbon monoxide revision-to review the national air quality standard for carbon monoxide. (568) Nitrogen dioxide revision—to revise the same standard for nitrogen dioxide. Testing chemical substances—to issue testing standards for obtaining scientific data on potential human health and environmental effects of chemical substances. Fuel and fuel additives-to require environmental and health effects testing for certain fuels and fuel additives. Uranium mill tailing—to set a standard for inactive wastes located at uranium processing sites. HEW DEPARTMENT Medicare and medicaid participation conditions-to revise the requirements skilled nursing and intermediate care facilities must meet in order to participate in those programs.* Life safety code-to consider reducing the costs of complying with the code, which sets building safety standards for hospitals, skilled nursing homes and intermediate facilities.* Lead contamination of food—to consider various options for reducing the lead content in food. Child day care to revise and extend standards for child day care purchased with or subsidized by funds from the federal government. HUD MANAGEMENT Floodplains management-to implement guidelines for reducing damage in flood-prone areas. INTERIOR DEPARTMENT Implementation of Section 203, Federal Land Planning and Management Actto establish procedures for the sale of public land under Bureau of Land Management (BLM) jurisdiction.* Implementation of Section 302, Federal Land Planning and Management Act— to establish procedures for leasing of public land under BLM jurisdictions.* Implementation of Endangered Species Act-to require more contact between the federal government and local governments and the interested public before the designation of critical habitats. LABOR DEPARTMENT Occupational exposure to pesticides—to develop a standard to protect workers from pesticides.* Abrasive blasting-to propose worker exposure limits to the dusts used in the abrasive blasting industry.* Dam and waste piles-to require new pile construction and the upgrading of existing piles at mines.* Construction work on mine property-to set health and safety standards for construction activity on the surface at mine sites. TRANSPORTATION DEPARTMENT Fuel economy for light-duty trucks-to set maximum feasible average fuel economy standards for model year 1982–84 trucks, taking into account technology feasibility, economic practicability, the impact of other federal motor vehicle standards and the need to conserve energy.* Fuel economy for passenger cars-to set maximum feasible average fuel economy standards for model year 1984-86 passenger cars, taking into account the same criteria. [From the National Journal, May 19, 1979] POLITICS AT THE HEART OF THE CLEAN AIR DEBATE (By Dick Kirschten) Neither the public's health nor its pocketbook is at center stage in the final showdown over air pollution standards for the next generation of coal-fired power plants. Instead, political considerations-whether to favor the high-sulfur coal that creates jobs in the East and Midwest-are at the heart of the debate. |