Marbury v. Madison's1 prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials.2 Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two branches of government. 3 Moreover, a conception of public administration free from judicial oversight would have damaged the fundamental political axiom of limited government and thus undermined in advance a principal buttress for the legitimacy of the modern "administrative state."' 4 At least where private interests are sharply implicated, some measure of judicial review is a "necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." '5 These concerns seem to have been acknowledged even by those specialists in public administration most prominently associated with efforts to narrow the claims for judicial control in favor of an emphasis on hierarchically structured, intra-administrative accountability. 6
The existence of judicial review of administrative action leaves open a large question about its scope. Marbury has relevance here too, for it is among the Court's first encounters with the propriety of judicial deference to administrative interpretation of statutes. In determining whether Mr. Marbury was legally entitled to his commission, the Court asserted categorically that "[t]he question whether a right [to the commission] has vested or not is, in its nature, judicial, and must be tried by the judicial authority." 7 There is no hint of acquiescence in a reasonable but contrary administrative interpretation of the relevant congressional legislation8 in Marbury's much quoted pronouncement that "[i]t is emphatically the duty of the judicial department to say what the law is."9 Marshall's grand conception of judicial autonomy in law declaration was not in terms or in logic limited to constitutional interpretation, and taken at face value seemed to condemn the now entrenched practice of judicial deference to administrative construction of law. It is Marbury's pertinence to this practice that I intend to examine in this Article.
Henry P. Monaghan,
Marbury and the Administrative State,
Colum. L. Rev.
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