Judicial Review of Questions of Law and Policy

Abstract

F rom the early 1930s to the present day, those studying the growth of the administrative state have sounded two conflicting themes. The first is that of "the need for regulation." Complex modern social, economic and technical problems require governmental intervention, particularly into the private marketplace. Intervention means regulation by administrators acting under generally worded congressional delegations of broad policymaking authority. The second theme is that of "the need for checks and controls." These same necessary administrators must be checked in the exercise of their broad powers lest their shortsightedness or overzealous ness lead to unwise policies or unfair or oppressive behavior. Congressional action in the late 1960s and early 1970s reflected the first of these themes. Congress created many new agencies charged with problems of health, safety and environmental protection.' Perhaps in reaction to the sudden, large growth in federal regulatory activity, however, public debate during the past decade has focused on the second theme: How can government guarantee wiser or fairer regulatory policies? How can it regulate the regulators? One can find several general topical answers to these latter questions. One kind of answer focuses upon the substance of particular regulatory programs and advocates dramatic individual substantive changes such as economic deregulation of airlines,2 trucking,' or financial insti-