Intelligence Law School - Course 1: Lesson 5.6.1 Justiciability of Branch Rules

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5.6 Judicial Review of Administrative Rules

5.6.1 Justiciability of Branch Rules

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5.6.1 Justiciability of Branch Rules The General Rule: Disputes about Branch Rules are Usually Not Reviewable

Disputes involving rules issued directly by the heads of the 3 branches of government are generally not reviewable in any court under most circumstances.

This is because any disputes over the propriety of another branch’s internal management rules would almost certainly be deemed a non-justiciable political question beyond the jurisdiction of any court seized of an action.

The Supreme Court has employed this rule of self-restraint out of a respect for separation of powers.

Ø  Only Branch Rules are Non-Justiciable: Remember, though, this immunity from judicial review extends only to rules issued by the heads of each branch.

o   Rules promulgated by agencies within the 3 branches, however, don’t raise the same problems and are generally not barred from judicial scrutiny on constitutional grounds.

o   Whether or not an agency can be sued depends on the relevant statutes governing judicial review that apply to the agency in question.[1]

                                                                                                   Judicial Review of Presidential Rules

What the Emancipation Proclamation demonstrates is that—while these general rules about the limits of presidential lawmaking authority are well-accepted cornerstones of our 3 branch government—as a practical matter, these rules depend largely on an individual President’s personal respect for the separation of powers and the rule of law.

Ø  Justiciability: This is because any disputes that might arise over the legal status of Presidential orders are almost always political questions and are therefore non-justiciable.

o   This means that any questions regarding presidential power with respect to issuance of directives likely will never be decided by any court and are instead worked out as a matter of custom through interaction between the Executive and Legislative Branch over time.



[1] Most commonly, suits seeking non-monetary remedies against agencies can be brought under Chapter 7 of the Administrative Procedure Act. 5 U.S.C. §§ 701-707.


© 2012 David Alan Jordan. All rights reserved.