Although the APA typically is seen as a codification of individual rights in a system of procedural due process, the authors argue that to answer these questions requires understanding the policy consequences of alternative procedural reforms. Thus, they develop and test a political theory, based on the views of legislators about the proper role of the federal government in regulating business, that seeks to explain patterns of support and opposition to legislative reforms. J. Legal Stud. This work addresses the question of how, and how effectively, elected politicians can exert ex ante influence over the policy choices of regulatory agencies. This article presents models of strategic behavior by agencies and courts where the ability to manipulate the instruments of decision making, rather than merely selecting policy choices, allows these actors to insulate their policy choices from higher level review.
Federal courts are reluctant to review the work of state and local administrative agencies.
Despite the presence of diversity or federal question jurisdiction to challenge final agency action, federal courts have sometimes abstained from exercising their jurisdiction out of fear of disrupting a complex regulatory scheme and displacing state courts in the uniform development of state regulatory policy. And at still other times, federal courts have invoked preclusion principles to bar federal challenges to agency action that was judicial in nature. While recent decisions of the Supreme Court may have moved away from imposing a jurisdictional bar, the American Law Institute proposes to revive such a limit, arguing that such review of agency action is contrary to the historic role of the federal courts and would alter their essential function as courts of original jurisdiction. In this article, Professors Woolhandler and Collins challenge these various practices preventing review of nonfederal administrative action, and they question the rationales behind them. They argue that, as a historical matter, federal courts once engaged in a robust review of state administrative action, even as to issues of state law.