DELAYED JUDICIAL REVIEW OF AGENCY ACTION

Should Congress be able to completely exempt the orders issued by a government agency from review by the courts? Some scholars argue that limiting courts' jurisdiction in this fashion would be unconstitutional. What if instead, Congress merely delays the point in time when a plaintiff may challenge an administrative order? In recent years, courts have interpreted many statutes to only allow delayed judicial review of orders. This can cause judicial review to be deferred for several months or even years and, as a result, this mechanism can discourage meritorious challenges of orders. Despite the unfairness of delayed judicial review for potential plaintiffs, it is a widely accepted proposition that this form of review is nonetheless necessary in many contexts. This view rests on the premise that the alternative approach, immediate judicial review, would inevitably lead to two types of problems. First, it would cause a dramatic surge in frivolous lawsuits, which, in turn, would flood courts with challenges. Second, these lawsuits would significantly delay the enforcement of many statutes. This Article challenges this conventional wisdom. The arguments in support of delayed judicial review, while intuitively appealing, are not as persuasive as they seem. First, allowing immediate review would not lead to a significant increase in frivolous suits. Decisions on whether to challenge an order in court are mostly economically driven. Therefore, with limited exceptions, potential plaintiffs will tend to only bring claims that they believe they can win in court. The empirical evidence on statutes that have transitioned from a delayed to an immediate review approach shows that the increase in the number of challenges resulting from that change is minimal. Second, it is unclear that immediate judicial review would substantially delay enforcement. Orders retain their legal effect after being challenged. In fact, while the court is examining the merits of the case, copious daily penalties for violating the order keep accumulating. Therefore, plaintiffs still have a powerful incentive to comply with the order swiftly. In addition to addressing these misconceptions, this Article also fills a gap in the literature by providing an analytical framework to evaluate the constitutionality of delayed judicial review provisions under the doctrine of constitutionally intolerable choices.