Notice & Comment

Keeping an Eye on Patchak v. Zinke

Next term, the Court will hear Patchak v. Zinke, No. 16-498. The case raises an old question about the line between the power of Congress and the power of the federal courts: The extent to which Congress can direct the outcome of a case.

Patchak brought suit under the APA challenging the Department of the Interior’s authority to take title to a tract of land. In response, Congress enacted the Gun Lake Trust Land Reaffirmation Act. The Act provides that any action “relating to the land . . . shall be promptly dismissed.” Pub. L. No. 113-179, 128 Stat. 1913 (2014). The question in Patchak is whether this statutory directive intruded on the judiciary’s power under Article III.

A year ago, in Bank Markazi v. Peterson, the Court said that Congress can prescribe “new substantive standards” through legislation, but it cannot apply existing legal standards itself. As the Court put it, Congress “may not usurp a court’s power to interpret and apply the law.” Thus, how Patchak is resolved will depend on whether Congress enacted a new legal standard or applied an old one.

Although the case focuses on whether Congress intruded on Article III, the decision could be more important for agencies. Agencies much more frequently undertake actions interpreting and applying pre-existing law. Through rulemaking, agencies issue interpretations of pre-existing law that bind courts under Chevron. And in adjudication, agencies render decisions based on their own findings of fact and application of pre-existing law to fact. Courts have only limited authority to overturn those determinations. In short, agencies more often than Congress potentially “usurp a court’s power to interpret and apply the law.”

To be sure, even if the Court holds in Patchak that Congress exceeded its power, there are many arguments why agency rulemaking and adjudication do not violate Article III.   For example, one might say that interpretations in rulemaking do prescribe new substantive standards—though this argument runs into the non-delegation line of decisions that say that rules are not legislation prescribing new standards but are implementations of pre-existing legislative standards.   Or one might argue that there is a difference between prescribing an outcome that the courts must accept (as in Patchak) and restricting the courts’ power to review an agency decision—though the latter case still involves a non-Article III entity interpreting and applying the law.   And one might argue that agency adjudications do not threaten Article III because those adjudications are limited to various categories of disputes that fall outside of Article III — such as disputes involving public rights. (Indeed, one wonders why that argument does not figure more prominently in Patchak.)   The list goes on.

Of course, the Court could very well write the Patchak decision in a way that does not affect the power of agencies. But until then, the case warrants to attention of those interested in administrative law.


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