Bijal Shah


“Presidential administration” has been discussed for the last twenty years. However, scholars have not considered whether courts are doing the same thing. Like presidents, courts may oversee the quality of administrative action under authority granted by the Constitution and legislation. And also, like presidents, courts make policy decisions in lieu of the agency that has been delegated policymaking power.

This Article draws on case law and legal scholarship, as well as work from public administration and political science, to construct a paradigm of “judicial administration.” More specifically, it offers a history of and traces the tension between the “overseer” and “decider” approaches to judicial administration. In addition, it explains the implications of these approaches for the constitutionality and efficacy of judicial review today.

First, this Article considers judicial administration as accomplished through the reinforcement of administrative procedure. These efforts were criticized as judicial policymaking by formalists. However, as this Article notes, these decisions focus on reconciling administrative action with constitutional, technical, and rule-of-law norms and are thus rooted in overseer impulses. In other words, the decider dimensions of even the most intrusive judicial review of agency process have been overstated.

Second, and in contrast, this Article notes that the recent call to overturn Chevron constitutes uncritical advocacy for the decider approach to the judicial administration of statutory directives. In the past, courts have limited their role in the administration of legislation to that of overseer. However, today’s formalists seek to implement de novo review wholesale. This effort is, at its core, a push for courts to decide policy in lieu of the agencies to which Congress has delegated policymaking power or to which policymaking power belongs as a matter of executive authority.

This may not trouble functionalists much. But it should trouble the very formalists who denounce Chevron. First, this evinces an inconsistency in their position, given that many have condemned what they identify as judicial policymaking in administrative process. More broadly, as in presidential administration, the decider approach to judicial administration runs the risk of treading on the legislature’s authority to make the law. To the extent this is the case, calls to dismantle the administrative state and instate the judiciary in its place are focused on reimbursing the wrong branch of government.

For those interested in judicial intervention as a means of regulating the administrative state, including the exercise of presidential power, the overseer model of judicial administration is less likely to offend a formal conception of the separation of powers. Furthermore, longstanding paradigms of judiciary as overseer confront the pressing issues—namely, the denigration of administrative due process and corrosion of expertise in service of the President’s agenda—resulting from today’s unsupervised executive branch.



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