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"Marbury and the Administrative State" by Henry Paul Monaghan (1983)

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Marbury and the Administrative State (1983) is a law review article by law professor Henry Paul Monaghan defending the idea of judicial deference to administrative interpretations of law.[1] Monaghan argues that Marbury v. Madison (1803) does not prevent courts from deferring when they believe that Congress has delegated law making authority to agencies.[1]

HIGHLIGHTS
  • Source: Columbia Law Review, Volume 83, No. 1, January 1983
  • Abstract: Monaghan provided this summary in the introduction to his article:[1]


    "The existence of judicial review of administrative action leaves open a large question about its scope. Marbury has relevance here too, for it is among the Court's first encounters with the propriety of judicial deference to administrative interpretation of statutes. In determining whether Mr. Marbury was legally entitled to his commission, the Court asserted categorically that 'the question whether a right [to the commission] has vested or not is, in its nature, judicial, and must be tried by the judicial authority.' There is no hint of acquiescence in a reasonable but contrary administrative interpretation of the relevant congressional legislation" in Marbury's much quoted pronouncement that '[i]t is emphatically the duty of the judicial department to say what the law is.' Marshall's grand conception of judicial autonomy in law declaration was not in terms or in logic limited to constitutional interpretation, and taken at face value seemed to condemn the now entrenched practice of judicial deference to administrative construction of law. It is Marbury's pertinence to this practice that I intend to examine in this Article."[1]

    • Author

    Henry Paul Monaghan

    As of May 2019, Henry Paul Monaghan was the Harlan Fiske Stone professor of constitutional law at Columbia Law School.[2] He is a member of the American Academy of Arts & Sciences and was awarded the Columbia Law School Medal for Excellence in 2010.[2] His Columbia faculty biography lists constitutional law, federal jurisdiction, federal courts, and the presidency among his specialties.[2]

    The following is a summary of Monaghan's education:[2]

    • A.A., Holyoke Junior College, Holyoke, Mass., 1953
    • B.A., University of Massachusetts, 1955
    • LL.B., Yale Law School, New Haven, Conn., 1958
    • LL.M., Harvard Law School, Cambridge, Mass., 1960

    "Part I: The Problem Elaborated"

    See also: Judicial deference

    Monaghan begins the article talking about a proposed amendment to the Administrative Procedure Act (APA) proposed by former U.S. Senator Dale Bumpers that would have required courts to decide de novo all questions of law instead of deferring to agency interpretations.[1] Amendment supporters cited Justice John Marshall's argument in Marbury v. Madison (1803) that the "'duty of the judicial department' [...] prohibits any judicial deference to administrative interpretation of law."[1] Monaghan rejects the Marbury defense as a misunderstanding of the way the U.S. Constitution allocates responsibilities between the courts and administrative agencies.[1] He elaborates the point in the following section:[1]

    “ My submission, in brief, is this: judicial review in both constitutional and administrative law involves textual interpretation by the courts. In constitutional adjudication, Marbury indicates that the court's interpretational duty is that of supplying the full meaning of the relevant constitutional provisions (except for 'political questions'). By contrast, judicial review of administrative action contains a question of the allocation of law-making competence in every case, given congressional power to delegate law-making authority to administrative agencies. The court's interpretational task is (enforcement of constitutional restrictions aside) to determine the boundaries of delegated authority. A statement that judicial deference is mandated to an administrative 'interpretation' of a statute is more appropriately understood as a judicial conclusion that some substantive law-making authority has been conferred upon the agency. Where deference exists, the court must specify the boundaries of agency authority, within which the agency is authorized to fashion authoritatively part, often a large part, of the meaning of the statute. By contrast, to the extent that the court interprets the statute to direct it to supply meaning, it interprets the statute to exclude delegated administrative law-making power. In this context, the agency view of what the statute means may persuade, but it cannot control, judicial judgment.[1][3] ”

    "Part II: Constitutional Adjudication and the Independent Judgment Rule"

    The rule

    In this section of the article, Monaghan examines the scope of the judicial duty, articulated in Marbury, to declare what the law is.[1] This section is not about judicial deference to agencies but emphasizes the long-standing support for judges resolving constitutional questions independently. He contrasts the clear mistake standard, which would allow courts to overturn legislation only in instances of obvious constitutional error, with the broader independent judgment rule, endorsed by Marbury.[1] He argues that history shows that the judicial duty includes the responsibility to "supply all the relevant meaning of the constitutional text" in all cases that come before the U.S. Supreme Court.[1] He adds that Congress cannot restrict courts from performing constitutional analysis in any cases within the courts' jurisdiction.[1]

    Intellectual origins

    Monaghan traces the origins of the independent judgment rule announced in Marbury to "the ordinary workings of the common law courts," which analyzed contracts and statutes containing alleged contradictions.[1] He argues that James B. Thayer's clear-mistake standard, which held that courts could only overrule congressional acts that were clear violations of the constitutional text, did not prevail as the dominant approach to resolving cases.[1] Monaghan says that the meaning of the constitution is a matter left to the courts in the American system of judicial review.[1]

    "Part III: Marbury, Public Administration and Private Rights"

    In this section of the article, Monaghan argues that Marbury did not prevent the Marshall court or subsequent courts from deferring to administrative agencies at times.[1] He summarizes the history in the following passage:[1]

    “ [T]hroughout most of the nineteenth century there was, despite Marbury, only limited judicial control of administrative law-interpretation. Judicial control was at its maximum when coercive governmental conduct was involved, particularly where, as in the customs and tax areas, the judicial process itself was utilized to enforce the duties of private persons. To be sure, expressions of deference were common enough in this context, but they were of uncertain import. Often they amounted to little more than a statement that the administrative view should be taken into account. And although the administrative view seemed, on occasion, to tip the judicial scales, it seems fair to say that the cases fell well short of judicial acceptance of a clear-mistake standard.[1][3] ”

    Monaghan cites 19th-century U.S. Supreme Court precedents to argue that the court was reluctant to second guess administrative decisions regarding the payment of government benefits.[1] He argues that the distinction between public and private rights helped early courts figure out the limits of administrative power.[1] He argues that Crowell v. Benson (1932) "sanctioned a wide area for the operation of public administration, removing article III as a meaningful barrier to the use of administrative agencies to establish and enforce, at least initially, all the rights created by the administrative state."[1]

    "Part IV: The Dialogue"

    The structure

    Monaghan uses this section to analyze professor Henry Hart's dialogue on Congress' authority to regulate courts' jurisdiction, "The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic" (1953).[1] He argues that Hart believes that any limitation placed on an enforcement court that narrows its authority to declare what the law is, such as deference requirements, violates the U.S. Constitution.[1] He concludes that "[i]f Hart's position is in fact consistent with some measure of deference, his analysis is, at the very least, in need of very considerable clarification."[1]

    Criticism

    Monaghan finishes his discussion of Hart's dialogue, arguing that Hart "leaves undefended the proposition that the nature of the judicial duty mandated by article III in cases in which the court has jurisdiction to enter a final judgment should turn on whether the individual's rights, duties or 'interests' are at stake."[1] Monaghan says that a proper view of Article III applies the judicial power to all cases where courts are "expected to enter a final judgment on the merits of the claim."[1]

    "Part V: Delegation and Marbury"

    Agency law making and the judicial function

    Monaghan begins this section saying that there was a large increase in administrative rulemaking from the 1960s to the 1980s made possible by the delegation of lawmaking authority by Congress to administrative agencies.[1] Monaghan argues, "Judicial deference to agency 'interpretation' of law is simply one way of recognizing a delegation of law-making authority to an agency."[1] He argues that judges determine what the law is and fulfill their Article III duty when they recognize what statutory authority Congress gave to an agency.[1] He ends the section arguing that the "court's task is to fix the boundaries of delegated authority" and that "it would be violating legislative supremacy by failing to defer to the interpretation of an agency to the extent that the agency had been delegated law-making authority."[1]

    Hearst Publications

    To defend his argument in the previous section, Monaghan cites precedent from NLRB v. Hearst Publications(1944).[1] He says that Hearst held that the judicial duty entails "instructing the agency as to the boundaries of its law-making competence."[1] He concludes that judges should defer to agency interpretations of law when agencies have "been invested with the authority to fill in the meaning of the statute" and should not focus too much on the rationality of those interpretations.[1]

    The present

    Monaghan argues that a later version of the Bumpers amendment reflects the deference principle from Hearst.[1] The version he has in mind instructs courts to pay attention to "the discretionary authority provided to the agency by law" as they decide questions of law independently.[1] As Monaghan argues in the following passage, however, the amount of delegation given to agencies by Congress is not always clear:[1]

    “ Analytically, the degree of deference that a court should give any agency interpretation of law is properly, within broad constitutional limits, entirely a matter of legislative intent. Recognizing that fact, however, will not generally prove very helpful, for legislatures do not often provide much evidence of their intention to delegate law-making power. Consequently, rules tying the degree of deference to be accorded agency action to the type of agency action involved may become necessary.[1][3] ”

    "Part VI: Judicial Deference and Boundaries"

    Limited government

    Monaghan argues that judicial review of the decisions made by administrative agencies is linked to limited government.[1] He distinguishes judicial oversight of administration from interpreting the U.S. Constitution and concludes that "there has never been a pervasive notion that limited government mandated an all-encompassing judicial duty to supply all of the relevant meaning of statutes."[1] That standard leaves room for judicial deference in many cases.

    Boundary-setting in constitutional adjudication

    Monaghan compares his vision for judicial review of agency actions to the role of courts enforcing constitutional limits on congressional action.[1] For instance, he says that courts have determined that "Congress can spend and take to achieve a virtually unlimited range of goals" so that the role of the court is to determine "whether Congress has exceeded the outer boundaries of a very wide domain for choice."[1] Applying a similar framework to the administrative state, Monaghan argues that "Marbury's demand for independent judgment, in sum, while accurate, does not capture the complexities of constitutional adjudication."[1]

    See also

    Court cases:

    Full text

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 1.39 1.40 1.41 1.42 Columbia Law Review, "Marbury and the Administrative State," 1983
    2. ↑ 2.0 2.1 2.2 2.3 Columbia Law School, "Henry Monaghan," accessed May 12, 2019
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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