International Encyclopedia of Public Policy and Administration - Vol. 2

By Jay M. Shafritz | Go to book overview

that severely limited the Supreme Court's scope of review. In Vermont Yankee, the Court ruled that an agency's decisions based on procedure should be given deference by the courts. The deference principle was also employed in Chevron. The Chevron decision has been criticized by administrative law scholars because it limits the scope of review to the point where there is no institution left to check on agency discretion. Although the courts are demonstrating a growing reluctance to decide on cases that require technical knowledge or expertise, the Chevron doctrine places extreme limits on judicial review. Critics question the wisdom of unreviewability or unreviewable discretion, namely because it runs against the long-standing principle of checks and balances. The Chevron decision is an important administrative law decision because of the Court's willingness to give deference to agency decisions. The Court's rationale for this degree of deference rests in the technical expertise of agency administrators. The question that follows is whether or not Congress intends to make agencies as powerful as the Chevron decision has made them. Since agencies exercise powers that are quasilegislative and quasi-judicial, the possibility of judicial review serves as the last check to guarantee that agency decisions are not arbitrary or capricious. The Chevron doctrine severely limits this check. Given that Antonin Scalia described this as one of the most important decisions regarding administrative law, it appears that the Rehnquist Court will uphold the precedent set in Chevron. Thus regardless of criticism of recent administrative law decisions, the courts are retreating from activist positions and allowing agencies considerable deference. Where vague enabling legislation used to be interpreted by the courts, agencies are now empowered to do this.


A Comparative Perspective

The United States is one of 65 countries that has adopted some form of judicial review. Australia and Canada have a form of judicial review that is most comparable to the United States. Australia, Brazil, Burma, Canada, India, Japan, and Pakistan have a court system with judicial review powers. Japan is the only one of these governments that is not a federal system of government. Pakistan and Iran require an Islamic review of all laws. France is not listed here because its form of judicial review is not a power of the judiciary. Instead, special councils have been created to determine whether or not laws are constitutional.

Although the judiciary in the United States exercises policymaking powers that go beyond the judicial powers found in other countries, there are countries in which the judiciary is equally, if not more, powerful. The German Constitutional Court not only has the power to strike down laws but also has the power to rule on lawmakers' failure to act. While the U.S. Supreme Court legalized abortions in 1973 through the right to privacy -- a right read into the Constitution -- the German Constitutional Court did the opposite. It ruled that the German government had the duty to protect the unborn.

Legislative supremacy is greater in both Great Britain and Switzerland. In Great Britain, no court has the power to strike down the laws passed by Parliament. In Switzerland, the people can determine the constitutionality of the laws passed by the national assembly through a constitutional initiative or a referendum. The Belgian constitution goes as far as to deny the practice of judicial review: "Authoritative interpretation of laws is solely the prerogative of the Legislative authority."

K. KIM LOUTZENHISER


BIBLIOGRAPHY

Ferguson, Andrew, 1994. "Power Hungry High Court: Even Conservative Justices Succumb to Lure of Policy Making". Los Angeles Daily Journal, June 29, 6.

Hamilton, Alexander, James Madison, and John Jay, 1961. Original pub. 1787. The Federalist Papers. New York: Mentor Books.

Janda, Kenneth, Jeffrey Berry, and Jerry Goldman, 1992. The Challenge of Democracy: Government in America. Boston: Houghton Mifflin.

Koch, Charles H., 1991. "An Issue-Driven Strategy for Review of Agency Decisions". Administrative Law Review (Fall) 511-558.

Meier, Kenneth J., 1993. Politics and the Bureaucracy: Policymaking in the Fourth Branch of Government, 3d ed. Belmont, CA: Brooks/Cole.

Rehnquist, William H., 1987. The Supreme Court. How It Was, How It Is. New York: William Morrow.

Warren, Kenneth F., 1996. Administrative Law in the Political System, 3rd ed. Upper Saddle River, New Jersey: Prentice Hall.

JURISDICTION. The power that a court, or other entity such as an agency or legislative body, has over a person or thing. There are two types of jurisdiction: subject matter jurisdiction and personal jurisdiction. In everyday usage, jurisdiction also refers to a place, such as a country, a state, a city, a county, or other geographic entity.

Subject matter jurisdiction concerns a court's power over certain types of cases. This power is usually granted through a statute or constitutional provision. For example, a small claims court will be given jurisdiction only over civil cases and only those cases involving less than US $500. For another example, Article III of the United States Constitution gives subject matter jurisdiction to federal courts over cases involving federal statutes, federal treaties, and the U.S. Constitution, among other matters. Congress, by statute, has further limited the jurisdiction of the

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International Encyclopedia of Public Policy and Administration - Vol. 2
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