Administrative Law Review
Sharon B. Jacobs, The Administrative State's Passive Virtues, 66 Admin. L. Rev. 565 (2014), available at https://scholar.law.colorado.edu/faculty-articles/431.
Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons similar to Bickelian courts: to avoid unnecessary conflict with other institutional actors. Moreover, like the passive virtues in the judicial arena, such agency passivity is often normatively desirable. As long as certain internal agency safeguards exist, passivity should be facilitated rather than undermined by reviewing courts.
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