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Article
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The First Branch: How Congress Manipulates Judicial Review of Administrative Action
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Jennifer Selin and Pamela J. Clouser McCann
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Arizona State University Sandra Day O'Connor College of Law Paper No. 5136872 (February 24, 2025)
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Open Access
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Abstract: The text of the U.S. Constitution is a result of a political compromise that granted Congress the authority to define the jurisdiction of all inferior federal courts and the appellate jurisdiction of the Supreme Court. While important scholarship has explored the parameters under which Congress may exercise this authority, few studies have examined congressional use of federal jurisdiction-stripping provisions as part of a larger statutory framework designed to control the administrative state.
This Article fills this gap by providing a novel theoretical and empirical account of the circumstances that motivate Congress to restrict the jurisdiction of federal courts to review administrative action. Notably, Congress engages in jurisdiction-stripping in this context to accommodate uncertainty regarding how legislative delegation to the executive branch will result in real world outcomes.
Using empirical data on the jurisdiction-stripping provisions included in all significant legislation enacted after the passage of the Administrative Procedure Act through 2019, this Article demonstrates Congress constructs judicial review based on the legislature’s assessment of the extent to which elected officials are able to exert influence over final agency actions; volatility in the political world; and the ideological makeup of all three branches of government. Notably, Congress is more likely to strip federal courts of their ability to review the final administrative actions of the same agencies that are protected by statute from political review. These findings have profound implications for those who consider the constitutional context in which the administrative state operates.
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