Judging the Fed
abstract. Judicial review of the Federal Reserve (Fed) is uncommon. But this does not mean that courts play no role in constraining the Fed. The law, and the way that the Fed expects courts to apply it, creates the boundaries within which the Agency operates. Understanding courts’ treatment of the Fed, then, is necessary to understand the constraints on Fed decision-making. This is particularly true in our current jurisprudential and macroeconomic landscape, in which the Court has become more skeptical of agency action, and the Fed has intervened in the economy in increasingly dramatic ways. If (or when) a collision occurs, what result?
This Note provides a comprehensive overview of judicial review of the Fed: when it occurs and what happens when it does. Where judicial review is available, courts take a narrow view of the Fed in any given dispute, applying different degrees of deference depending on whether the Fed is acting as regulator, lender, or monetary-policy maker. Recently, though, Fed actions have blurred the lines between these roles. Courts have so far largely declined to review these types of actions, avoiding the doctrinal dilemma. But if—or when—they do, precedent will not provide a helpful guide. Rather than continue along this categorical path, courts should apply a unified framework, considering Fed actions in the context of the Fed’s unique institutional position within the federal bureaucracy. The past two decades have ushered in a new age of central banking. A new approach to judicial review of central banking should follow.
author. J.D. 2021, Yale Law School; A.B. 2014, Dartmouth College. Special thanks to Nicholas Parrillo for his guidance and encouragement throughout this project. Thanks also to Andrew Milligan for the many thought-provoking conversations, to Leah Samuel for the early inspiration, and to Zach Lustbader, Jeff Gordon, and Nathaniel Donahue for insightful feedback on earlier drafts. Finally, I am grateful to Benjamin Della Rocca for excellent revisions and suggestions, along with the full Yale Law Journal editorial team.
Introduction
Historically, administrative law has centered on the relationship between administrative agencies and courts.1 More recently, scholarship has expanded beyond this narrow conception of how agencies work, emphasizing the ways in which the “law” of administrative agencies is constituted outside of courts—frequently, within the agencies themselves.2 This turn has been no less present in scholarship surrounding the Federal Reserve (Fed). Recognizing that the Fed is rarely subject to judicial review, scholars have looked to other mechanisms—including congressional oversight,3 legislation,4 internal procedures,5 reputational concerns,6 and agency culture7—to describe the constraints on and determinants of Fed action. But in their haste to develop an administrative law of the Fed that looks beyond judicial review, scholars have tended to simply ignore it. The result is an incomplete administrative law of the Federal Reserve.
Judicial review of the Fed is indeed uncommon. But this does not mean that courts play no role in constraining the Fed. The law, and, more precisely, the way that the Fed expects courts to apply it, creates the boundaries within which Fed officials may operate.8 Just as the specter of congressional intervention affects the Fed’s understanding of what actions are within its legal authority and which are ultra vires,9 the expected justiciability (or not) of a given action and the expected deference a court will afford the Agency do as well. Understanding courts’ treatment of the Fed, then, is necessary to understand the constraints on Fed decision-making.
A study of judicial review of the Fed may be all the more vital in our current jurisprudential and macroeconomic landscape. Over the past decade, we have seen a remarkable rise in antiadministrativism on the Supreme Court.10 Even where such views have not yet commanded a majority on the Court, “a revolution in separation of powers and administrative law” that could hamstring the administrative state feels imminent.11 At the same time, the last two decades have brought some of the most dramatic actions by the Fed in its hundred-year history, with contemporary macroeconomic theory embracing a more activist role for the Fed. Many commentators have characterized these actions as occurring at, near, or even past the boundaries of the Fed’s statutory authority.12 The Fed and the Court appear to be on a collision path: an unstoppable force barreling toward an immovable object.
If (or when) this collision occurs, what result? The scholarship on judicial review of the Fed is notably thin. Most scholars who have discussed the subject within the last thirty years touch on it only briefly, noting that Fed actions “rarely . . . undergo judicial review.”13 But even those treating it in greater depth have failed to cover it comprehensively. One line of scholarship addresses judicial review of financial regulators in general, discussing the Fed alongside other regulatory agencies.14 Other scholarship focuses specifically on the Fed, recognizing that it differs from other regulators in the scope of its mandate and the deference it receives from courts.15 But these articles tend to focus narrowly on the Fed acting in one specific capacity, be it the Fed as regulator,16 enforcer,17 or lender.18 Finally, a separate line of scholarship discusses judicial review of constitutional challenges to the Fed’s agency structure.19
Each of these approaches has its benefits. Looking across financial regulators as a class lets scholars identify broad trends in judicial treatment. And focusing on specific subsets of Fed activity facilitates deeper engagement with each. But these approaches have their blind spots as well. Judicial review of a given agency action does not occur in a vacuum; an agency’s reputation before a court “can expand or deflate the [agency’s] legal authority,” whether the court consciously recognizes it or not.20 One need not look far to find the Fed’s reputation doing such work before courts. In judicial opinions, courts have singled out the Fed as uniquely independent and unreviewable because of its particular expertise.21 Advocates tend to cast the Fed as the paradigmatic technocratic agency that requires independence from the Executive.22 And judges themselves frequently gesture to the Fed as an exceptional agency.23 Judicial interference with the Fed, judges seem to feel, would be beyond the pale.
But Fed policy making encompasses a range of initiatives, where the strength of its reputation before courts varies. Judicial pronouncements of Fed exceptionalism occur in certain contexts but not others. For example, when the Fed raises or lowers interest rates, the Second Circuit has declared that it would be “grotesque” for courts to get involved.24 But when it regulates the financial system, it is treated like any other agency.25 The fragmented treatment of judicial review of the Fed in scholarship misses this nuance, which is essential for understanding the relationship between the Federal Reserve System and the courts.26
This Note aims to fill that gap, offering a comprehensive description and analysis of judicial review of the Fed. It proceeds in three parts. Part I describes when judicial review of Fed activity is available—or, more commonly, when it is not. Some barriers to review emerge from judge-made law, whereas others are de facto obstacles to bringing litigation against the Fed. Part II describes courts’ treatment of the Fed when judicial review is available, tracing the various deference regimes courts have applied to the Fed. Courts tend to take a narrow view of the Fed in any given dispute, analyzing the mechanism or statute the Fed is implementing in isolation, rather than considering the Fed in a cross-functional way. As a result, courts have developed a series of deference doctrines that they apply to the Fed depending on its role in a given dispute. Part III turns from the descriptive to the normative. It argues that this category-based approach to judicial review does not fit well with the contemporary macroeconomic landscape, in which Fed actions frequently cross category boundaries. Past Fed policies may have fallen somewhat neatly into categories of actions designed to achieve monetary-policy aims and actions that, say, serve a “lender of last resort” function. But recent macroeconomic developments have caused these (and other) functions to blur. For example, at the zero lower bound, the Fed has used its lending powers to achieve its monetary-policy goals. Courts have so far largely declined to review these types of actions, avoiding this doctrinal dilemma. But if—or when—they do, precedent will not provide a helpful guide. Rather than continue their categorical approach, courts should unify their framework for judicial review and consider Fed actions in the context of the Fed’s unique institutional role in the federal bureaucracy.
Make no mistake: I do not mean to suggest that courts are the most important factor when it comes to Fed decision-making—far from it. In administrative law generally, and administrative law of the Fed in particular, the shift in focus from judicial review toward internal agency decision-making is positive. But any complete understanding of the Fed must include analysis of its complex relationship with courts. It is to this analysis that I now turn.
See generally Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims 1-5 (1983) (critiquing this court-centered approach). By “administrative law,” I mean the field of law primarily focused on how administrative agencies make decisions. See Peter Conti-Brown, Yair Listokin & Nicholas R. Parrillo, Towards an Administrative Law of Central Banking, 38 Yale J. on Regul. 1, 5-6 (2021) (describing “the heartland of administrative law” as agency “practices for interpreting law” and “making decisions”).
Jerry L. Mashaw largely pioneered this “inside out” view of administrative law, and it has been a dominant theme in administrative-law scholarship ever since. See, e.g., Nicholas R. Parrillo, Introduction to Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 1, 2-3 (Nicholas R. Parrillo ed., 2017); see also Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239, 1243 & nn.16-18 (2017) (describing this trend and compiling sources).
See, e.g., Alexander Mehra, Legal Authority in Unusual and Exigent Circumstances: The Federal Reserve and the Financial Crisis, 13 U. Pa. J. Bus. L. 221, 264-70 (2010) (describing Congress’s revisions to the Federal Reserve Act in the Dodd-Frank Act as a response to the Federal Reserve’s (Fed) lending in the aftermath of the 2008 financial crisis); Lev Menand, The Federal Reserve and the 2020 Economic Crisis, 24 Stan. J.L. Bus. & Fin. 295, 326-28 (2021).
See Gillian E. Metzger, The Supreme Court 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 1-4 (2017) (describing the antiregulatory and antiadministrative trend on the Supreme Court); id. at 3 (“These judicial attacks on administrative governance . . . oppose administration and bureaucracy, but not greater presidential power; . . . advocate a greater role for the courts to defend individual liberty against the ever-expanding national state; and . . . regularly condemn contemporary national government for being at odds with the constitutional structure the Framers created . . . .”).
See Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1294 (2021). A majority of the Court may be ready to abandon the longstanding approach to the nondelegation doctrine—the “intelligible principle” test—in favor of a much more restrictive understanding of Congress’s ability to give the President or administrative agencies discretion through which to act. See id. at 1293-95. If the Court were to adopt the view embraced by Justice Thomas in Department of Transportation v. Ass’n of American Railroads, 575 U.S. 43, 70 (2015) (Thomas, J., concurring in the judgment), “all agency rulemaking governing private conduct [would be] unconstitutional unless it turns solely on a factual determination or involves foreign relations.” Parrillo, supra, at 1295.
Gillian E. Metzger, Through the Looking Glass to a Shared Reflection: The Evolving Relationship Between Administrative Law and Financial Regulation, 78 Law & Contemp. Probs. 129, 133 (2015); see also Steven M. Davidoff & David Zaring, Regulation by Deal: The Government’s Response to the Financial Crisis, 61 Admin. L. Rev. 463, 478 (2009) (“[I]n administering the discount window and providing assistance to banks, the Federal Reserve’s actions are effectively removed from judicial review.”); Adam J. Levitin, The Politics of Financial Regulation and the Regulation of Financial Politics: A Review Essay, 127 Harv. L. Rev. 1991, 2047 (2014) (book review) (noting that “much of financial regulation occurs via ‘soft law’ outside of the regulatory ambit of the APA’s notice-and-comment rulemaking and administrative adjudication requirements,” thereby largely precluding judicial review); Note, Cashing out a Special Relationship?: Trends Toward Reconciliation Between Financial Regulation and Administrative Law, 130 Harv. L. Rev. 1183, 1186 (2017) (“[F]ew Federal Reserve Board decisions face judicial review in the form contemplated by the Administrative Procedure Act . . . .”).
See, e.g., Barry J. Friedberg & Abram S. Gordon, Note, Judicial Review of the Federal Banking Regulatory Agencies, 7 Ann. Rev. Banking L. 365, 379-99 (1988) (describing the Court’s deference regime as applied to the regulatory activities of the Federal Reserve Board of Governors, the Office of the Comptroller of the Currency (OCC), and the Federal Deposit Insurance Corporation (FDIC)); John C. Deal, Banking Law Is Not for Sissies: Judicial Review of Capital Directives, 12 J.L. & Com. 185, 202 (1993) (discussing the availability of judicial review under section 8 of the Federal Deposit Insurance Act); Carolyn Sissoko, Note, Is Financial Regulation Structurally Biased to Favor Deregulation?, 86 S. Cal. L. Rev. 365, 415-16 (2013) (arguing that judicial review of financial regulators, including the Fed, favors deregulation); Donald C. Langevoort, Statutory Obsolescence and the Judicial Process: The Revisionist Role of the Courts in Federal Banking Regulation, 85 Mich. L. Rev. 672, 675 (1987) (describing judicial review under the Glass-Steagall Act and the McFadden Act); Jonathan Stevenson, Note, Efficiency or Principle?: A Model for Judicial Review of Federal Banking Agency Decisions, 2 Ann. Rev. Banking L. 235, 245-47 (1983) (surveying theories of judicial review in the banking-law context); Raymond H. Brescia, Part of the Disease or Part of the Cure: The Financial Crisis and the Community Reinvestment Act, 60 S.C. L. Rev. 617, 653-61 (2009) (describing judicial review of financial regulators, including the Fed, under the Community Reinvestment Act); Marilyn B. Cane, Non-Broker Brokers and Other Anomalies in the Regulation of Financial Services, 11 Harv. J.L. & Pub. Pol’y 111, 131-56 (1988) (describing judicial review of the regulation of securities by the Fed and other financial regulators); Peter C. Carstensen, Restricting the Power to Promote Competition in Banking: A Foolish Consistency Among the Circuits, 1983 Duke L.J. 580, 589-95 (describing judicial review of the Federal Reserve Board and FDIC decisions to approve or deny bank mergers); Arthur E. Wilmarth, Jr., The Expansion of State Bank Powers, the Federal Response, and the Case for Preserving the Dual Banking System, 58 Fordham L. Rev. 1133, 1189-91 (1990) (describing judicial review of Federal Reserve and FDIC action under the Bank Holding Company Act (BHCA)).
See, e.g., Benjamin W. Cramer & Martin E. Halstuk, Crash and Learn: The Inability of Transparency Laws to Penetrate American Monetary Policy, 25 Wm. & Mary Bill Rts. J. 195, 220-25 (2016) (discussing courts’ exceptional treatment of the Fed in Freedom of Information Act (FOIA) cases); Kara Karlson, Checks and Balances: Using the Freedom of Information Act to Evaluate the Federal Reserve Banks, 60 Am. U. L. Rev. 213, 231-33 (2010) (similar).
See Natasha Sarin, Making Consumer Finance Work, 119 Colum. L. Rev. 1519, 1533-35 (2019) (describing judicial review of the Fed’s implementation of the Durbin Rule under the Dodd-Frank Act); Leonard Bierman & Donald R. Fraser, The “Source of Strength” Doctrine: Formulating the Future of America’s Financial Markets, 12 Ann. Rev. Banking L. 269, 269-71 (1993) (discussing the Fed’s “source of strength” regulation); Alfred C. Aman Jr., Bargaining for Justice: An Examination of the Use and Limits of Conditions by the Federal Reserve Board, 74 Iowa L. Rev. 837 (1989) (describing judicial review of the Fed’s regulatory actions under the Bank Holding Company Act); Saule T. Omarova & Margaret E. Tahyar, That Which We Call a Bank: Revisiting the History of Bank Holding Company Regulation in the United States, 31 Rev. Banking & Fin. L. 113, 114 (2011) (describing the Fed’s “comprehensive consolidated regulation” of banks); Lawrence G. Baxter, Administrative and Judicial Review of Prompt Corrective Action Decisions by the Federal Banking Regulators, 7 Admin. L.J. Am. U. 505, 508 n.8 (1993) (observing that the Fed “has primary federal responsibility for the regulation of all bank holding companies”).
See Julie Andersen Hill, Bank Capital Regulation by Enforcement: An Empirical Study, 87 Ind. L.J. 645 (2012) [hereinafter Hill, Bank Capital Regulation by Enforcement]; Julie Andersen Hill, When Bank Examiners Get It Wrong: Financial Institution Appeals of Material Supervisory Determinations, 92 Wash. U. L. Rev. 1101, 1127-29 (2015); Lev Menand, Why Supervise Banks? The Foundations of the American Monetary Settlement, 74 Vand. L. Rev. 951, 965-67 (2021).
Daniel Carpenter, Reputation and Power 33 (2010); see also id. (“Reputation can, by assigning expertise and status to government agencies, allow them to define basic terms of debate, essential concepts of thought, learning, and activity. . . . [R]egulatory power depends profoundly upon the image of state organizations.”).
See, e.g., Brief for Court-Appointed Amicus Curiae at 3, 13, Collins v. Yellen, 141 S. Ct. 1761 (2021) (Nos. 19-422, 19-563), https://www.supremecourt.gov/DocketPDF/19/19-422/157945/20201016124102195_Collins%20v. %20Mnuchin%20Appointed%20Amicus%20Brief.pdf [https://perma.cc/V733-TUWS] (warning the Court that an adverse holding could bring the constitutionality of the Federal Reserve Board in question).
See, e.g., Transcript of Oral Argument at 51, PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75 (D.C. Cir. 2018) (No. 15-1177), https://www.consumerfinancemonitor.com/wp -content/uploads/sites/14/2017/06/15-1177-oral-argument-transcript.pdf [https://perma.cc/BZ4N-DYM6] (then-Judge Kavanaugh noting that the structure of the Federal Reserve Board is somewhat exceptional as compared to other independent agencies); id. at 10, 21, 23 (Judges Pillard and Millett repeatedly comparing the case to that of the Federal Reserve Board); Oral Argument at 23:22, Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (No. 19-7), https://apps.oyez.org/player/#/roberts10/oral_argument _audio/24977 [https://perma.cc/4QJK-QX4F] (Justice Breyer invoking the unusual structure of the Fed).
A notable exception to this trend is a recent line of scholarship, led by Peter Conti-Brown, that focuses on the institutional structure of the Fed across its various roles. See Conti-Brown, supra note 8; Peter Conti-Brown, The Institutions of Federal Reserve Independence, 32 Yale J. on Regul. 257 (2015); Conti-Brown et al., supra note 1, at 48-53, 56-60. However, noting the near absence of judicial review, this scholarship has prioritized the Fed’s relationships with other institutions (including Congress, the Executive, and the financial industry, to name a few) and has yet to analyze judicial review in depth. See Conti-Brown, supra note 8, at 100 (“A key but underdeveloped part of this book’s story is the role that courts play in defining the Fed’s policy-making space.”); Conti-Brown et al., supra note 1, at 5 (noting that “the Fed rarely finds itself haled into court”). Indeed, in Conti-Brown’s seminal work on the Federal Reserve as an institution, his primary citation concerning the relationship between the Fed and the courts is to a student note on “judicial review of banking regulation” from 1988. See Conti-Brown, supra note 8, at 100 n.32 (citing Friedberg & Gordon, supra note 14).