Professor Dan Rodriguez's paper The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences' makes several important contributions to the literature on statutory interpretation in the modern regulatory state. It provides a coherent explanation for the curious review provisions of the Administrative Procedure Act (APA), and analyzes the continuing battle over judicial review of agency action as part of a continuing dialogue among Congress, the courts, and the President. Rodriguez recognizes that those who study statutory interpretation must take account of both the existence of administrative agencies and the fact that interpretive practices have the potential to affect future action by Congress. These points are too often overlooked by modern theories of statutory interpretation. Indeed, the latter point-that interpretive practices may affect future legislation-is one of the unexplored areas in the current literature on statutory interpretation.
Despite these laudable points, I think that ultimately Rodriguez fails to perform the task which he sets for himself. He asserts that his Article in large part is designed to explore the effects which one particular canon of statutory construction may have on future legislation. Specifically, Rodriguez attempts to delineate the ex ante effects of the canon which creates a presumption of judicial review of agency action. To the extent that Rodriguez traces the historical development of this canon, I have little to add to Rodriguez's account. Rodriguez carefully examines the enactment of the APA, the change in judicial and legislative attitudes toward the administrative state which led the Supreme Court to create the presumption of reviewability in Abbott Laboratories v. Gardner, and the continuing change which has led the Supreme Court to be somewhat less enthusiastic in its application of this canon of construction. Rodriguez, however, also attempts to specify the manner in which the existence of this canon may affect Congress's deliberation over future legislation. Rodriguez's account of this impact is less convincing than his analysis of the creation of the canon.
Rodriguez ultimately concludes that the presumption of judicial review may lead to the passage of less legislation than if the courts simply addressed the issue of reviewability on a case-by-case basis without putting the judicial thumb on the scales either in favor of reviewability or against it. Rodriguez asserts that this state of affairs exists because the presumption of reviewability may prevent the formation of a coalition in favor of a given bill where such a coalition would have formed had the presumption not existed. When one examines the dynamics of coalition formation and how the presumption of reviewability affects these dynamics, however, it becomes clear that Rodriguez's claim cannot be supported.
Robert K. Rasmussen,
Coalition Formation and the Presumption of Reviewability: A Response to Rodriguez,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss3/10