Strict Scrutiny cover image

A Fear of Too Much Justice

Strict Scrutiny

CHAPTER

The Fifth Circuit's Openness to Setting Apart Agency Action

Gorsuch's concurrence doesn't say definitively that the APA doesn't allow courts to set aside agency action, but they're like clearly very open to it. They have been signaling that in their questions and oral arguments and in Gorsuch in at least one separate writing for some time. I just I feel like the Fifth Circuit does not need any more encouragement. But on the other hand, if what he's asking for is less intervention or courts taking a more skeptical view of their own ability to set aside agencies' actions, then we may see this clash come to the fore soon.

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