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Abstract

A leading authority in the field of administrative law has posited that "[t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." There is no question that judicial review is an imperfect check on agency action: it is susceptible to criticism for, on the one hand, the excessive limitations on its exercise, and on the other for the arguably inferior level of understanding from which courts must approach matters uniquely within the competence of particular administrators. Nonetheless, the courts remain "the acknowledged architects and guarantors of the integrity of the legal system." The efficacy of judicial review, according to conventional administrative theory, lies not so much in its application in specific cases as in its availability as "a constant reminder to the administrator and a constant source of assurance and security to the citizen." Thus, review by the courts serves two distinct but related purposes: to assure, both directly and indirectly, agency fidelity to statutory and constitutional commands; and to instill public confidence in the legitimacy of those agencies' actions and policies. Although presumably either of the two goals might be achieved independently of the other, it seems likely that the two are in fact closely intertwined—public confidence depends to a great degree upon the cultivation of a perception that the administrative process possesses those attributes of accountability and fairness that are thought to be characteristic of constitutional government. The erosion, for any reason, of that perception raises serious questions about the viability of administrative agencies as legitimate components of constitutional government. Since 1981, events in the administration of the Social Security disability compensation programs have given rise to new and unsettling questions about the federal judiciary's capacity to exercise meaningful control over rebellious or recalcitrant executive agencies. The refusal, during the past several years, of the Department of Health and Human Services (HHS) to conform to the federal courts' interpretations of the Social Security Act's disability provisions, the human suffering wrought by that refusal, and the apparent impotence of the courts to mitigate that suffering, together pose a serious challenge to the conventional view of the relationship between the executive and judicial departments. In particular, those events have called into question the validity of two crucial presumptions articulated in recent years by the Supreme Court as underlying its treatment of the relationship between federal agencies and the judiciary: first, that the courts must accord federal administrative agencies a presumption of good faith in their administration of public law; and second, that even when that presumption is undermined, adequate safeguards exist to protect those subjected to agency misfeasance from untoward consequences. While the courts may be bound, as a practical matter, by the first of these presumptions, the second presumption is neither inevitable nor necessarily accurate; the experience of disabled persons victimized by the refusal of HHS to respect the rule of law discloses that the remedies available to most citizens are frequently beyond the grasp of society's least affluent and least powerful members. It is the inaccuracy of that second presumption, and the resulting inequity to those who are least able to defend themselves against the grossest abuses of agency authority, which form the subject matter of this Comment.

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