Shattering the Fragile Case for Judicial Review of Rulemaking
Posted: 25 Feb 2000
This article argues for the abolition of extraconstitutional (e.g., APA) judicial review of administrative rulemaking. It examines the justifications for such review, which I characterize as the rule of law justification, the Marbury justification, the checking justification, the dialogic justification, and the public choice justification. I scrutinize them and find that they rest on descriptively inaccurate assumptions and are each wanting. I conclude by arguing that judicial review necessarily involves political considerations that are ill-suited for the judiciary. Nor is a judicial review necessary, given the availability of congressional and executive review.
JEL Classification: K23, K41
Suggested Citation: Suggested Citation