As the Trump Administration departs, lower courts are interpreting and applying Trump-era Supreme Court precedents in ways that will profoundly impact the practice of administrative law in the years to come. A recent example is the aggressive narrowing of the “committed to agency discretion” exception to judicial review under the Administrative Procedure Act (“APA”), an exception codified at 5 U.S.C. §701(a)(2).

§701(a)(2) provides that “agency action committed to agency discretion by law” is unreviewable. Since Citizens of Overton Park v. Volpe, courts have declined to scrutinize agency action when there is “no law to apply” in reviewing the action. But if a court can read the statute at issue in a way that does provide “law to apply,” the court can bypass §701(a)(2) and proceed to reviewing the agency action.

Of course, there is a potential catch-22 here: if there is no “law to apply,” then the action might be the result of unconstitutional delegation (the constitutional principle that Congress may not delegate legislative power to another branch of government), which Amee Bergin argued as far back as 2004. Given the recent resurgence of interest in the nondelegation doctrine, such a clash might compel invalidation of the statute that bestows so much discretion in the first place.

But a recent Supreme Court decision and a follow-on lower court decision seemed to avoid this catch-22 simply by reading statutes to provide the necessary “law to apply”—even if the statutory text makes it less than obvious.

We cannot know for sure, but that is what the D.C. Circuit may have been doing this month in Shawnee Tribe v. Mnuchin. Applying the recent Supreme Court case of Department of Commerce v. New York, the court found that a statute granting wide discretion to the Secretary of the Treasury did not fall into the §701(a)(2) exception. In so doing, the court continued the Department of Commerce Court’s march toward finding judicially manageable standards when their presence in the underlying statutes is unclear.

Department of Commerce v. New York

Department of Commerce was a 2019 Supreme Court case concerning the Trump Administration’s attempt to include a question about citizenship on the 2020 census.

To reach its ultimate holding, the Court had to decide whether the inclusion of the question was even reviewable under the APA. The government had urged that it was not, arguing that the Census Act committed such a decision to Secretary of Commerce Wilbur Ross’s unreviewable discretion under §701(a)(2). The government pointed to Section 141(a) of the Census Act, which provides that the Secretary of Commerce shall “take a decennial census of population . . .  in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.”

Is this open-ended language (“as necessary”) a meaningful standard against which to judge the agency’s compliance with a congressional command? Perhaps surprisingly, the Court in Department of Commerce thought so. The Court declared that it has viewed the agency-discretion exception “quite narrowly, restricting it to those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” (internal quotation marks omitted) and proceeded to reviewing Secretary Ross’s decision to include the citizenship question.

Shawnee Tribe v. Mnuchin

The Shawnee Tribe court leaned on this language to hold that another extremely open-ended statute provided “law to apply.”

To get a sense of what was going on in Shawnee Tribe, recall that last year, Congress tasked the Treasury Department with—among other things—reimbursing Tribal governments for certain COVID-19 expenditures.

Congress’s statute instructed that the Secretary of the Treasury determine the amounts paid to each Tribal government “based on increased expenditures of each such Tribal government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal government.” To do so, the Secretary would calculate the allotments per Tribal government “in such manner as [he determined] appropriate to ensure that all amounts available” were distributed.

The dataset that Treasury Secretary Steven Mnuchin chose for allocation of funds was one that severely underestimated the Shawnee Tribe’s expenditures. The Tribe sued for its fair share, challenging Secretary Mnuchin’s decision to use the unfavorable dataset, but the government argued that the allocation of these funds was “committed to agency discretion” and therefore unreviewable.

Writing for the D.C. Circuit, Judge Tatel repeated the Court’s admonition from Department of Commerce that §701(a)(2) should be read narrowly. This standard in mind, Judge Tatel then proceeded to simply recite the statutory text above and declare that the law did indeed provide a judicially manageable standard.

But once again, and perhaps even more so than in Department of Commerce, one has to strain to find the judicially manageable standard of review here. The truth is: Congress left the determination up to the Secretary about which data to use, hence the “Secretary determines appropriate” language. No matter. The court, heeding the teachings of Department of Commerce, managed to find law to apply.


So, what are the courts doing? With the possibility of a full-on revival of the nondelegation doctrine looming over the jurisprudential horizon, perhaps the courts are quietly whittling away nondelegation problems through statutory interpretation by reading laws in ways that do not present nondelegation issues. Harvard Law Dean John Manning once wrote a law review article describing the ways in which the Court has used the nondelegation doctrine as a canon of avoidance.

And now, as the anti-delegation movement is gaining academic and jurisprudential steam, the Court could go one of a number of ways. Department of Commerce, as interpreted and applied by the Shawnee Tribe court, indicates an approach of managed decline. Instead of teeing up statutes for invalidation under the nondelegation doctrine through a “no law to apply” finding, the managed-decline model would have courts strain to divine judicially manageable standards from ambiguous restraints on discretion, then engage in judicial review based on those standards. This method conveniently puts off, until another day, the first step toward a constitutional showdown between agency discretion and the nondelegation doctrine.

Court watchers should pay attention to the fate of the §701(a)(2) exception; it may be a canary in the coal mine for the Court’s approach to the nondelegation doctrine.