Reading Room Document

Constitutionality of a Judicial Review Provision Providing for Automatic Affirmance of Agency Decisions

The Northeast Interstate Low-Level Radioactive Waste Management Compact would establish a Commission whose final administrative decisions would be subject to review in the United States Court of Appeals for the District of Columbia Circuit. A proposed amendment to a bill granting the consent of Congress to the Compact provides that if review is sought of the Commission's decision relative to the designation of a "host state" for a regional radioactive waste disposal facility and the court of appeals does not rule within ninety days after the petition for review has been filed, the Commission's decision "shall be deemed to be affirmed." This provision raises serious constitutional problems that implicate the doctrine of separation of powers. Although Congress has broad authority to prescribe rules concerning judicial practice, procedure, jurisdiction, and remedies and to establish the substantive law that governs judicial decisions, the proposed amendment exceeds this authority by effectively exercising the core judicial function of deciding particular cases. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23781/download.

December 13, 1985