No. A court can't force the agency to act here. Think of the FDA like a police department. The police can't go after every single person who speeds; they have to decide which cases are most important to spend their time and money on. The law gives them this freedom, or 'discretion.' The Court said that unless a law gives the FDA a clear, specific instruction like 'you MUST investigate this type of problem,' courts have to stay out of it. The drug safety law didn't have such instructions, so the FDA's decision not to act was its call to make.

No, but with a warning. I agree that the FDA's decision shouldn't be reviewed in this specific case. But this isn't a free pass for agencies to do whatever they want. For example, if an agency refused to act because of a bribe, or if it was ignoring a clear constitutional violation, then a court could step in. This case is just a normal 'we're choosing not to spend our resources on this' situation, so the Court is right to stay out of it.

No, but the Court's main reason is wrong and dangerous. I think courts should almost always be able to review what an agency does, or doesn't do. However, the court should be very respectful of the agency's expertise. In this case, the FDA gave a reasonable explanation for its decision (it had bigger problems to deal with). So, the FDA's choice was fine—not because courts can't look at it, but because after looking at it, there was nothing wrong. Creating a new rule that says 'courts can't even look' is a bad idea.

No, when an agency chooses not to enforce a law, courts should assume they can't review that choice, unless Congress has clearly allowed review or the choice violates constitutional rights. The law the FDA enforces doesn't say when the FDA has to act, so its choice here can't be reviewed. The Court says this no-review rule is narrow and might not apply if the agency says it has no power at all over the issue or completely gives up its duties under the law.

Justice Brennan agrees that we should usually assume courts can't review these choices but points out times when they might, like if the agency says it has no power, ignores clear legal rules, refuses to follow its own regulations, violates constitutional rights, or makes the choice for improper reasons like a bribe.

Justice Marshall agrees with the result but not the reasoning. He thinks agency choices not to act should be reviewable unless Congress clearly says no, but they should be respected if there's no abuse of power. He says the majority's rule against review goes too far and will be hard to apply. He would just say the FDA explained its choice well enough here to show it wasn't abusing its power.

R] eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion

Although an agency's decision not to take enforcement action is presumptively unreviewable, "the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers."

However, under APA § 701 (a)(2), courts are not to review agency action when that "agency action is committed to agency discretion by law."

—noting that the decision whether to prosecute a specific case "has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to `take Care that the Laws be faithfully executed

"[A] n agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion."

Conversely, we may not review an agency decision "to the extent that... statutes preclude judicial review...[or] agency action is committed to agency discretion by law."

The Court concluded that "an agency's decision not to take enforcement action should be presumed immune from judicial review under § 701 (a)(2

The Supreme Court first identified this presumption in Chaney, a case in which a group of death-sentenced prisoners petitioned the Food and Drug Administration ("FDA") to prevent the use in lethal injections of certain drugs that the agency had not approved for that purpose.

—noting that judicial review is unavailable under the APA if the statute provides "no judicially manageable standards... for judging how and when an agency should exercise its discretion

Alternatively, the presumption can be rebutted where the agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibility. Id

No. An agency's decision not to undertake an enforcement action is presumptively immune from judicial review under § 701(a)(2) of the Administrative Procedure Act (APA). This section precludes review for actions "committed to agency discretion by law," which applies where a statute is drawn so broadly that there is "no law to apply" for a court to measure the agency's decision against. An agency's decision not to enforce is a classic example of such discretion, analogous to prosecutorial discretion, involving a complex balancing of resources, priorities, and likelihood of success that is within the agency's unique expertise. This presumption of unreviewability can be rebutted if the substantive statute provides meaningful standards for the agency to follow, but the FDCA's enforcement provisions are framed in permissive, not mandatory, language and thus supply no such standards.

No. I concur that agency decisions not to take enforcement action are presumptively unreviewable, but this presumption is narrow. It is critical to note that today's holding does not foreclose judicial review in several specific circumstances. Review would likely be proper where an agency: (1) flatly claims it lacks statutory jurisdiction; (2) engages in a clear pattern of nonenforcement amounting to an abdication of its duties; (3) refuses to enforce a regulation it lawfully promulgated; or (4) makes a nonenforcement decision that violates a constitutional right. In those situations, there would be discernible 'law to apply' that could overcome the presumption of unreviewability.

No. While the FDA's decision in this case was permissible, the majority's creation of a broad "presumption of unreviewability" is fundamentally wrong and contrary to established precedent. Under the APA and cases like Abbott Laboratories, agency actions, including failures to act, are presumptively reviewable, and that presumption can only be overcome by "clear and convincing" evidence of congressional intent to preclude review. The correct approach is to review the agency's decision on its merits, with substantial deference, for whether it was "arbitrary, capricious, or an abuse of discretion." Here, the FDA offered a rational basis for its decision—prioritizing its finite resources on more pressing public health issues—so its refusal to act was a valid exercise of discretion and should be upheld on those grounds, not because it was immune from review entirely.

No, an agency's decision not to take enforcement action is presumptively unreviewable under the APA because such decisions are generally committed to agency discretion by law. This presumption may be rebutted where the substantive statute provides guidelines for the agency to follow in exercising its enforcement powers. However, the FDCA does not provide such guidelines, and therefore the FDA's decision not to take enforcement action is unreviewable. The Court emphasizes that this is a narrow exception and that judicial review may be available if an agency bases its refusal to act solely on the belief that it lacks jurisdiction or has adopted a general policy that amounts to an abdication of its statutory responsibilities.

Justice Brennan agrees with the general presumption of unreviewability but notes several situations where the presumption may be rebutted, including where an agency flatly claims it has no jurisdiction, engages in a pattern of nonenforcement of clear statutory language, refuses to enforce a lawfully promulgated regulation, or makes a nonenforcement decision that violates constitutional rights. He also suggests that nonenforcement decisions made for entirely illegitimate reasons, such as bribery, would be reviewable.

Justice Marshall concurs only in the judgment. He argues that agency refusals to act should be reviewable in the absence of clear and convincing evidence of contrary congressional intent, but that such refusals warrant deference when there is no indication of an abuse of discretion. He criticizes the majority's presumption of unreviewability as unnecessarily truncating judicial review of agency inaction and as difficult to apply in practice. Justice Marshall would decide the case on the narrower ground that the FDA's statement of reasons was sufficient to demonstrate that its refusal to act was not arbitrary, capricious, or an abuse of discretion.

Heckler v. Chaney

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