'Streamlining' the rule of law: How the department of justice is undermining judicial review of agency action
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These streamlining rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice's recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. Yet the streamlining rules have had far-reaching doctrinal and practical consequences. They have led to chaos at the agency, where the emphasis in immigration adjudication has explicitly shifted away from reliance on standards and precedents towards increased reliance on discretionary, and often arbitrary, decision making. Immigration appeals have flooded the federal courts, nearly doubling the size of some circuit caseloads, while trapping the courts in a doctrinal quandary between competing duties of judicial review and agency deference. This Article argues that if left unchecked, the Department of Justice's streamlining reforms will eviscerate judicial review, turning it into an illusory exercise incapable of restraining agency action. Not only will agency decision making become less rule- and law-based, but significant spheres of agency action will be rendered immune from judicial review, corroding the rule of law in our judicial system. This evisceration of judicial review is unwarranted and unwise. To help stem this erosion, this Article proposes more nuanced interpretations of deference and judicial review principles which can resolve the dilemmas facing the federal courts and preserve the vitality of judicial review over agency decisions.
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