McNary v. Haitian Refugee Center Inc./Dissent Rehnquist

Chief Justice REHNQUIST, with whom Justice SCALIA joins, dissenting.

Congress has carefully limited the judicial review available under the Immigration Reform and Control Act of 1986 (Reform Act) in language which "he who runs may read." The Court, with considerable and obvious effort, finds a way to avoid this limitation, because to apply the statute as written could bar judicial review of respondents' constitutional claims. The statute as written is, in my view, constitutional, and there is therefore no need to rewrite it.

* The relevant provisions of the Reform Act dealing with administrative and judicial review are found in 8 U.S.C. § 1160(e):

"(1) Administrative and judicial review

"There shall be no administrative or judicial review of     a determination respecting an application for adjustment of      status under this section except in accordance with this      subsection.

"(2) Administrative review

"(A) Single level of administrative appellate review

"The Attorney General shall establish an appellate     authority to provide for a single level of administrative      appellate review of such a determination

. . ..

"(3) Judicial review

"(A) Limitation to review of exclusion or deportation

"There shall be judicial review of such a denial only in     the judicial review of an order of exclusion or deportation      under section 1105a of this title." The first of the quoted sentences states, as clearly as any language can, that judicial review of a "determination respecting an application for adjustment of status under this section" may not be had except in accordance with the provisions of the subsection. The plain language of subsection (3)(A) provides that judicial review of a denial may be had only in connection with review of an order of exclusion or deportation. The Court chooses to read this language as dealing only with "direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications." Ante, at 492. But the accepted view of judicial review of administrative action generally-even when there is no express preclusion provision as there is in the present statute-is that only "final actions" are reviewable in court. The Administrative Procedure Act provides:

"[F]inal agency action for which there is no other adequate     remedy in a court [is] subject to judicial review.  A      preliminary, procedural, or intermediate agency action or      ruling not directly reviewable is subject to review on the      review of the final agency action." 5 U.S.C. § 704.

The Court's reasoning is thus a classic non sequitur. It reasons that because Congress limited judicial review only of what were in effect final administrative decisions, it must not have intended to preclude separate challenges to procedures used by the agency before it issued any final decision. But the type of judicial review of agency action which the Court finds that Congress failed to preclude is a type not generally available even without preclusion. In the light of this settled rule, the natural reading of "determination respecting an application" in § 1160(e) encompasses both final decisions and procedures used to reach those decisions. Each of respondents' claims attacks the process used by Immigration and Naturalization Service (INS) to make a determination respecting an application.

We have on several occasions rejected the argument advanced by respondents that individual plaintiffs can bypass restrictions on judicial review by purporting to attack general policies rather than individual results. For instance, in United States v. Erika, Inc., 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982), we found that in the context of the "precisely drawn provisions" of the Medicare statute, the provision of judicial review for awards made under Part A of the statute, coupled with the omission of judicial review for awards under Part B, "provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims." Id., at 208, 102 S.Ct., at 1654 (citations omitted). Similarly, in Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), we addressed a challenge to a ruling issued by the Secretary of Health andHuman Services that precluded payment under Medicare for a particular medical procedure. The Medicare Act permits judicial review of "any claim arising under" the Act, 42 U.S.C. §§ 405(g), (h), only after a claimant seeks payment and exhausts administrative remedies. The plaintiffs contended that their lawsuits challenging the Secretary's refusal to reimburse the procedure at issue were permissible without exhausting administrative remedies because they challenged only the Secretary's " 'procedure' for reaching her decision," not the underlying decision on their particular claims. 466 U.S., at 614, 104 S.Ct., at 2021. We rejected this distinction, finding that "it makes no sense to construe the claims . . . as anything more than, at bottom, a claim that they should be paid for their . . . surgery." Ibid. This holding was based on the recognition that a contrary result would allow claimants "to bypass the exhaustion requirements of the Medicare Act by simply bringing declaratory judgment actions in federal court before they undergo the medical procedure in question." Id., at 621, 104 S.Ct., at 2025. We expressly rejected the contention-also urged by the respondents here-that "simply because a claim somehow can be construed as 'procedural,' it is cognizable in federal district court by way of federal-question jurisdiction." Id., at 614, 104 S.Ct., at 2021.

It is well settled that when Congress has established a particular review mechanism, courts are not free to fashion alternatives to the specified scheme. See United States v. Fausto, 484 U.S. 439, 448-449, 108 S.Ct. 668, 673-674, 98 L.Ed.2d 830 (1988); Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 419-422, 85 S.Ct. 551, 556-559, 13 L.Ed.2d 386 (1965). In creating the Reform Act and the SAW program, Congress balanced the goals of the unprecedented amnesty programs with the need "to insure reasonably prompt determinations" in light of the incentives and opportunity for ineligible applicants to delay the disposition of their cases and derail the program. The Court's ponderously reasoned gloss on the statute's plain language sanctions an unwarranted intrusion into a carefully drafted congressional program, a program which placed great emphasis on a minimal amount of paperwork and procedure in an effort to speed the process of adjusting the status of those aliens who demonstrated their entitlement to adjustment. "If the balance is to be struck anew, the decision must come from Congress and not from this Court." Ringer, supra, 466 U.S., at 627, 104 S.Ct., at 2028.

The Court bases its conclusion that district courts have jurisdiction to entertain respondents' pattern and practice allegations in part out of respect for the "strong presumption" that Congress intends judicial review of administrative action. Ante, at 498. This presumption, however, comes into play only where there is a genuine ambiguity as to whether Congress intended to preclude judicial review of administrative action. In this case two things are evident: First, in drafting the Reform Act, Congress did not preclude all judicial review of administrative action;  as detailed earlier, Congress provided for judicial review of INS action in the courts of appeals in deportation proceedings, and in the district courts in orders of exclusion. Second, by enacting such a scheme, Congress intended to foreclose all other avenues of relief. Therefore, since the statute is not ambiguous, the presumption has no force here.

The Court indicates that this presumption of judicial review is particularly applicable in cases raising constitutional challenges to agency action. Ante, at 496-499. I believe that Congress intended to preclude judicial review of such claims in this instance, and that in this context it is permissible for it to do so.

In the Reform Act, Congress enacted a one-time amnesty program to process claims of illegal aliens allowing them to obtain status as lawful residents. Congress intended aliens to come forward during the limited, 12-month eligibility period because "[t]his is the first call and the last call, a one-shot deal." 132 Cong.Rec. 33217 (1986) (remarks of Sen. Simpson). If an alien failed to file a legalization application within the 12-month period, the opportunity was lost forever. To further expedite this unique and unprecedented amnesty program and to minimize the burden on the federal courts, Congress provided for limited judicial review.

Given the structure of the Act, and the status of these alien respondents, it is extremely doubtful that the operation of the administrative process in their cases would give rise to any colorable constitutional claims. " 'An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications;  their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare.' "  INS v. Pangilinan, 486 U.S. 875, 884, 108 S.Ct. 2210, 2216, 100 L.Ed.2d 882 (1988) (quoting United States v. Ginsberg, 243 U.S. 472, 474, 37 S.Ct. 422, 425, 61 L.Ed. 853 (1917)).

Respondents are undoubtedly entitled to the benefit of those procedures which Congress has accorded them in the Reform Act. But there is no reason to believe that administrative appeals as provided in the Act-which simply have not been resorted to by these respondents before suing in the District Court-would not have assured them compliance with statutory procedures. The Court never mentions what colorable constitutional claims these aliens, illegally present in the United States, could have had that demand judicial review. The most that can be said for respondents' case in this regard is that it is conceivable, though not likely, that the administrative processing of their claims could be handled in such a way as to deny them some constitutional right, and that the remedy of requesting deportation in order to obtain judicial review is a burdensome one. We have never held, however, that Congress may not, by explicit language, preclude judicial review of constitutional claims, and here, where that body was obviously interested in expeditiously processing an avalanche of claims from noncitizens upon whom it was conferring a substantial benefit, I think it may do so.