Committed to Agency discretion by Law

Applies except to extent that statutes preclude judicial review, or agency action if committed to agency discretion by law.
-Must be something different from preclusion by statute and discretion by law.
-Agency discretion by law cases try to understand what it means for statutory preclusion of judicial review

-Strong presumption of availability of judicial review. Statute must say that a claim like this can never go before judicial review. Ultra-clear statement by congress to overcome presumption of judicial review.
-ROL: presumption of reviewability that requires ultra-clear statement by congress to take statutory claim out of hands of court for judicial review.
--->Based on Crowell v. Benson: ok for non-article III judge to adjudicate public law claims so long as article III judge available on appeal.
-->Make sure that congress has really thought about it before removing claim from article III court.

-Congress is very clear about no judicial review in veterans' benefits.
-Question: whether guy allowed to get veteran's benefits when chose alternative public service due to religious beliefs, doesn't want to be deprived of benefits because had right not to join military.
-Court: basic eligibility of benefits grounded in constitution can't be taken out of article III court ever. Congress didn't intend to take constitutional claims out of courts.
-So even with congress trying to rebut reviewability, court says constitutional claims are different.
-Might be constitutionally required to be judicially reviewable.
-**Avoidance holding: don't want to allow congress to be able to take constitutional claims out of article III courts. Role of judicial review too important.

Both these cases are judicial pronouncements that hard for congress to take question out of court and to deprive of article III forum after gone through administrative adjudication.

-If statute gives so much discretion that can't tell when discretion abused or not, it's committed to agency discretion and is unreviewable.
-If statute gives some information, then not committed to agency discretion and is reviewable.

-CIA employee disclosed that he was gay, and was placed on leave by agency while conducted investigation into his orientation. Even though he passed all his tests, CIA fired him anyway. The theory they use is that he is at risk for blackmail because being gay/having gay sex was a crime.
-His claim: arbitrary and capricious dismissal, deprived him of property without due process, and violated his constitutional rights. Especially since he showed he hadn't done anything wrong.
-->Like Roth claim. In Roth, no reputational damage. Here, Doe saying this harms his reputation, and infringes on his right to be gay.
-Wrongful discharge without sufficient process:
-Rehnquist: CIA has discretionary power. Court precedent gives deference to director to make these decisions when he deems them necessary and advisable in interest of US. Discretionary choice that he gets to make.
--->So under §701a2 of APA: committed to agency discretion by law. Director has statutory discretion to decide who gets fired and who doesn't.
-But what about Overton Park?
--->If statute gives so much discretion that can't tell when discretion abused or not, it's committed to agency discretion and is unreviewable.
-->If statute gives some information, then not committed to agency discretion and is reviewable. Really?
-In what sense does this have no law to apply? Does statute not give a good enough standard against which to measure discretionary choices to hire or fire?
-What about background CL rule of at-will employment?
-->Good claim under Roth, Perry v. Sindermann? Reasonable expectation of continuing employment or tenure based on this statute? Does this statute provide enough positive law that he had a reasonable expectation of not being fired arbitrarily?
--->Pretty clear that kind of at-will employment. Doesn't have a good procedural due process claim, doesn't have much reason to think can't be fired.
-Hiring/firing of employees ordinarily committed to discretion of boss by contractual default rule. Must be a statute that undoes idea of at-will employment. Kind of decision that is ordinarily discretionary decision, and presumption of not reviewable by court unless statute curbs preexisting idea.
-->Overton: statute doesn't say enough to flip default of discretionary decision making that preexists statute.
-What about constitutional claims and idea that CIA infringed his liberty? Rehnquist: these claims are reviewable. Decision to violate constitutional rights is not committed to agency discretion by law. -->Cites Johnson v. Robison.
-Scalia dissent: decision can't be both reviewable and not reviewable. Either committed to agency discretion or it's not. If committed to agency discretion shouldn't review it for any legal defect and vice versa. Doesn't make sense, wants all or nothing.
--->Wants rule to do cost-benefit analysis of a sort of whether statutory claims are more or less important than constitutional claims.
-Roth: if employer acts against you in way that harms liberty interest, than that is protectable. Presumption in favor of review of constitutional claims makes sense as necessary component of due process.
-Confusing set of rules about what is and isn't committed to agency discretion and what is or isn't reviewable by judiciary.
-->Not reviewable if not committed in broad terms to agency, but not sure what those are because statute does give some idea of what goes beyond discretion.
--->But constitutional claims are reviewable even when other claims aren't.
-Recast as procedural due process: Doe asserted protected interest, Fail to assert property interest but Succeeded at asserting constitutional claims.

-Prosecutorial discretion. Petitioners argued that use of lethal injection drugs not ok under FDA because not FDA approved for use in human execution.
-FDA commissioner refused to take action, citing jurisdictional issues and not wanting to interfere with state criminal justice system.
-Argument: FDCA violated, FDA abusing discretion by refusing to enforce.
-FDA: decision whether to enforce or not is committed to agency discretion by law and therefore no judicial review. -->Legal req in FDCA for enforcement: FDA policy statement that obligated to investigate unapproved uses of drugs when become widespread or endangered public health.
-Precedent: Bochowski case, NLRB required to give statement of reasons for deciding or not deciding to pursue enforcement action.
-->FDA did give brief written statement saying didn't want to interfere with states, etc., so satisfied req because did give some reason.
-Is decision on enforcement given or not given to agency discretion on law when it's from a policy statement?
-->Court says no. Policy statement doesn't give law to apply to require action. Lots in FDCA that if FDA had to pursue it every time thought there was an issue, it would constantly be trying to enforce statute, and it has limited resources that must choose how to distribute. Its statements don't obligate it to act every time issues arise, it would lose too much power of resource allocation if it did.
-Argument: prosecutorial discretion is core, long lasting feature of executive branch of govt, agencies as part of executive branch, must have discretion to choose when to bring or not bring action as way of govt functioning. So prosecutorial discretion must be committed by law through historical grounding and CL traditions (Scalia argument in Webster).
-In order for congress to overcome idea of executive discretion, must have something in statute like in NLRA that mandates enforcement actions that judge can review. Must rest in hands of agency over court.
-Different notion than Overton Park or Webster v. Doe: if decision at issue is one that has historically been discretionary choice of executive even before admin state came around, then committed to agency by law and judges shouldn't review.

-In order to survive a non-delegation challenge, statute has to provide intelligible principle for exercise of agency policymaking discretion. Executive branch can't be given blank check to make whatever rules it wants in policymaking.
-->Requires boundary to executive agency power to choose policy outcomes agency will pursue or not.
-->This is true ONLY if agency engaged in legislative like activity.
-**If instead, what agency doing is something that executive has always been allowed to do without legislative permission, then need for these kinds of intelligible principles and boundaries disappears under basic notion of admin power and non-delegation. If what president doing is hiring or firing employees for white house, not executing complex statutory scheme or deciding policy, then that is an executive function that doesn't require intelligible principles, president has discretion to hire and fire without congressional articulation on who is hirable or fire-able.
--->Ok for there to be no law to apply in deciding whether president has hired right person in way not ok for no law to apply in deciding pollution thresholds in vehicles. Same idea for prosecutorial discretion. Executive has always had ability and authority to decide when to pursue allegation of criminal conduct or go after someone for committing crime or to decide not to, regardless of whether congress has ability to impose boundaries that court can enforce.

*Anything that doesn't require intelligible principles under non-delegation doctrine, anything executive branch allowed to do without congressional articulation on boundaries of policymaking discretion. *