Court-Agency Dialogue: Article III’s Dual Nature and the Boundaries of Reviewability

Courts reviewing agency actions frequently offer more than a positive analysis of the agencies’ decisions. They might engage in advice-giving, for example, or temper the remedy as a way of modulating the impact of review. These actions can be used in a dialogic way, to provide normative signals to agencies. Yet because courts must judge agency actions only on the grounds provided by the agency at the time of the agency’s decision—and must ordinarily remand actions that fail to meet substantive standards of review—these normative signals require a delicate touch so as to avoid judicially imposed policy preferences and any chipping away at Article III values. In his excellent study of the ordinary remand rule, Professor Christopher J. Walker traces the development of the rule and constructs a taxonomy of dialogic tools that might profitably accompany remands. This Response praises Professor Walker’s contribution to the literature, and suggests several areas for future study. In particular, this Response emphasizes the dual nature of Article III—consisting both of powers and resistance norms—and suggests that a full account of court- agency dialogue ought to be mindful of this duality. Further, this Response suggests that agency actions at the edges of reviewability offer a unique focal point for considering how the competing Article III concerns operate. And finally, this Response cautions that taken too far, dialogic tools can undermine judicial responsibility and agencies’ constitutional legitimacy.