Agencies, Courts, First Principles, and the Rule of Law

Abstract

An inherent tension exists between the roles of agencies and courts in administrative enforcement cases. Those cases are initiated by agencies to enforce the statutes and regulations they administer but are then subject to judicial review by courts. Agencies tend to focus on creating and then implementing administrative enforcement systems that produce consistent results pursuant to the agency’s bureaucratic processes and informed by the agency’s expertise. In reviewing such decisions, by contrast, courts tend to focus on ensuring that the agency’s administrative system comports with fundamental legal principles. The two roles embody different goals: for agencies, rendering predictable and consistent outcomes that achieve the goals of the statute; for courts, adhering to the values of government accountability and protection of fundamental rights. All of these goals — predictability, consistency, government accountability, protection of rights — reflect different components of the Rule of Law, the idea that legitimate authority requires certain attributes that accomplish a threshold level of fairness. Effectuating the multi-faceted Rule of Law requires creating a relationship between administrative enforcement and judicial review that fully empowers both agencies and courts to fulfill their respective roles, but without undermining the other.