"The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue"

Michigan Law Authors
Areas of Interest
Publish Date
George Washington Law Review
Publication Type
Journal Article

When a court concludes that an agency’s decision is erroneous, the ordi- nary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Although the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation of powers values that motivate the rule. This Article conducts such an investigation—focusing on judicial review of agency immigration adjudications and reviewing the more than 400 published court of appeals decisions that have addressed the remand rule since the Court rearticulated it in 2002.

This Article finds that courts generally fail to appreciate the dual separation of powers values of Article I legislative and Article II executive authority at issue and that some circuits have not been faithful to this command. Courts that refuse to remand seem to do so when they believe the petitioner is entitled to relief and remand would unduly delay or, worse, preclude relief because the petitioner would get lost in the process. In refusing to remand, courts express perceived Article III concerns of abdicating their authority to say what the law is and to ensure that procedures are fair and rights are protected in the admin- istrative process. In reviewing the cases, however, this Article uncovers a novel set of tools that courts have developed to preserve their role in the process and enhance the court-agency dialogue. Instead of ignoring the remand rule, this Article suggests that courts should utilize and further develop this dialogue-enhancing toolbox to exercise their constitutional authority while preserving the delicate balance of powers between courts and agencies via the ordinary remand rule.

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