Agency Discretion: Scope, Limits, and Review

Explore the scope, limits, and judicial review of agency discretion, highlighting how administrative agencies interpret and implement laws within their statutory authority while ensuring accountability and compliance with legal standards.


Agency discretion refers to the authority granted to administrative agencies to make decisions within the framework of their enabling statutes. This discretion allows agencies to interpret and implement laws, make policy decisions, and enforce regulations. However, the scope of this discretion is not unlimited. Various legal mechanisms exist to ensure that agencies do not exceed their authority or act arbitrarily. This guide explores the scope, limits, and review of agency discretion, providing a comprehensive understanding of this critical aspect of administrative law.

Scope of Agency Discretion

Definition and Purpose

Agency discretion is the power given to administrative agencies to make decisions and take actions within the bounds of their statutory authority. This discretion is essential for the effective functioning of agencies, allowing them to apply their expertise and judgment to complex issues.

Statutory Authority

Agencies derive their discretion from statutes enacted by legislatures. These statutes outline the scope of the agency's authority and provide guidelines for its exercise. For example, the Administrative Procedure Act (APA) 5 U.S.C. § 706 sets forth the standards for judicial review of agency actions, ensuring that agencies act within their legal boundaries.

Types of Discretion

  1. Rulemaking Discretion: Agencies have the authority to create regulations that have the force of law. This process involves public notice and comment, as outlined in the Federal Register's Guide to the Rulemaking Process.

  2. Adjudicatory Discretion: Agencies can make decisions in individual cases, similar to judicial proceedings. This includes issuing permits, licenses, and enforcement actions.

  3. Enforcement Discretion: Agencies decide how and when to enforce regulations. This discretion allows agencies to prioritize resources and focus on significant violations.

Examples of Agency Discretion

  • Environmental Protection Agency (EPA): The EPA has discretion in setting environmental standards and enforcing compliance with environmental laws.
  • United States Citizenship and Immigration Services (USCIS): USCIS exercises discretion in adjudicating immigration applications, as detailed in Chapter 8 of the USCIS Policy Manual.

Limits on Agency Discretion

  1. Statutory Limits: Agencies must operate within the confines of their enabling statutes. Any action beyond this scope is ultra vires (beyond the powers) and invalid.

  2. Constitutional Limits: Agency actions must comply with constitutional principles, including due process and equal protection.

  3. Administrative Procedure Act (APA): The APA imposes procedural requirements on agencies, including notice-and-comment rulemaking and standards for judicial review. The APA's provisions ensure transparency and accountability in agency actions.

Judicial Review

Judicial review is a critical mechanism for controlling agency discretion. Courts review agency actions to ensure they comply with statutory and constitutional requirements. The scope of judicial review is outlined in 5 U.S.C. § 706.

  1. Arbitrary and Capricious Standard: Courts assess whether an agency's action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

  2. Substantial Evidence Standard: In cases involving formal rulemaking or adjudication, courts review whether the agency's decision is supported by substantial evidence.

  3. Chevron Deference: Courts often defer to an agency's interpretation of ambiguous statutory provisions, as established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Case Law Examples

  • Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.: This landmark case established the principle of Chevron deference, where courts defer to an agency's reasonable interpretation of an ambiguous statute.
  • Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.: The Supreme Court held that an agency's action must be set aside if it is arbitrary and capricious.

Review of Agency Discretion

Administrative Procedure Act (APA)

The APA provides the framework for judicial review of agency actions. Under 5 U.S.C. § 706, courts can:

  1. Compel agency action unlawfully withheld or unreasonably delayed.
  2. Hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

Judicial Review Process

  1. Standing: To seek judicial review, a party must have standing, meaning they must be directly affected by the agency's action.
  2. Exhaustion of Administrative Remedies: Parties must typically exhaust all available administrative remedies before seeking judicial review.
  3. Standard of Review: Courts apply different standards of review depending on the nature of the agency action, such as the arbitrary and capricious standard or the substantial evidence standard.

Examples of Judicial Review

  • Massachusetts v. Environmental Protection Agency: The Supreme Court held that the EPA's refusal to regulate greenhouse gases was arbitrary and capricious.
  • Citizens to Preserve Overton Park v. Volpe: The Court ruled that the Secretary of Transportation's decision to approve a highway project through a public park was subject to judicial review under the APA.


Agency discretion is a fundamental aspect of administrative law, allowing agencies to apply their expertise and judgment in implementing and enforcing laws. However, this discretion is not without limits. Legal constraints, including statutory and constitutional requirements, as well as judicial review, ensure that agencies act within their authority and do not abuse their discretion. Understanding the scope, limits, and review of agency discretion is essential for ensuring accountability and transparency in administrative actions.


  1. 5 U.S.C. § 706
  2. Federal Register's Guide to the Rulemaking Process
  3. Chapter 8 of the USCIS Policy Manual
  4. Judicial Review Under the Administrative Procedure Act (APA)
  5. Judicial Review of Agency Action - acus wiki
  6. A Primer on the Reviewability of Agency Delay and Enforcement
  7. RI Gen. Laws § 42-35-15
  10. Wisconsin Legislature: 227.53(1)
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Von Wooding

Von Wooding

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