The APA’s Call for Judicial Minimalism, by Aneil Kovvali
The judicial review provision of the APA, 5 U.S.C. § 706, provides that “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Many commentators focus on the way that the language emphasizes a robust judicial role by providing that courts instead of agencies must resolve questions of law. Indeed, then-Judge Gorsuch cited the language in calling for more robust judicial oversight of agencies, through the abolition of Chevron deference.
Less attention has been paid to the opening words of the provision, which push for a modest judicial role by providing that a court should address a question of law only “[t]o the extent necessary to decision.”* This wording suggests a minimalist approach that would seek to avoid difficult legal questions. Cf. Dames & Moore v. Regan, 453 U.S. 654, 661 (1981) (“We attempt to lay down no general ‘guidelines’ covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.”).
A minimalism principle makes structural sense within the context of the APA. A different provision of the Act, 5 U.S.C. § 702, adopts a broad concept of standing, granting a right of review to any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” This type of language can permit suits (and thus empower the judiciary) outside traditional contexts. See Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998). Taken together, the statutory provisions give courts more disputes that they can use to decide legal questions, but require that the questions must truly be central to the disputes.
The historical context would also support a minimalism principle. Minimalist language has been in place since the APA was enacted in 1946—the original text provided that questions should only be decided “So far as necessary to decision.” The time of the APA was not far removed from a period of open conflict between Congress and the judiciary, which bubbled over into legislative efforts to constrain federal courts: In the 1930s, Congress passed the Norris-LaGuardia Act, the Tax Injunction Act, and the Johnson Act, each of which sought to curtail the federal courts’ ability to intervene on hotly contested issues. While the Supreme Court’s eventual acceptance of the New Deal (the famous switch in time in 1937) may have reduced the pressure for such measures, it’s unlikely that Congress’s skepticism would have dissipated completely at the time of the APA.
So what does this mean for courts reviewing agency action? The most obvious implication is that courts should approach their task with greater humility. But the language may also have important implications for administrative law doctrines like Chevron and Brand X.
Under Chevron, a court will defer to an agency’s construction of a statute if (1) the statute does not directly speak to the precise question at issue, and (2) the agency’s construction is a reasonable resolution of the ambiguity. If a court is inclined to rule against an agency on both grounds, minimalism would require the court to frame the decision as a decision under step two. Courts and (under Brand X) agencies would then be free to reach a broader range of decisions in subsequent cases.
A strong version of minimalism would also support Brand X more directly, at least in some contexts. Strong minimalism would suggest that a court exceeds its mandate in an APA case when it speaks to any issue that is not absolutely necessary to decision. Such statements would best be understood as a form of nonbinding dicta, with little real relevance in a changed circumstance. On this view, if a court rejects an agency’s interpretation of a statute and identifies its preferred interpretation, it is only holding that the agency is wrong and identifying a way forward with the existing legal materials; all else is dicta. If an agency then issues new materials with the force of law, the holding would not be on point. This line of thought strengthens the point that Brand X does not allow agencies to overturn judicial precedent; such precedents are merely narrower than they might appear.
The APA preserves the judiciary’s central role in resolving legal questions, and does much to ensure its robust involvement in administrative issues. But it also suggests meaningful limits on judicial decisions. Attention to those limits would be productive for courts and commentators.
Aneil Kovvali is an Associate at Wachtell, Lipton, Rosen & Katz. The views expressed in this post are his own, and do not necessarily reflect the views of the firm or its clients.
*For an exception, see Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why It Matters, 59 Admin. L. Rev. 673, 683, 704 (2007).