United States Reports/Volume 470/Heckler v. Chaney/Opinion of Justice Marshall

by Thurgood Marshall

Justice Marshall, concurring in the judgment.

Easy cases at times produce bad law, for in the rush to reach a clearly ordained result, courts may offer up principles, doctrines, and statements that calmer reflection, and a fuller understanding of their implications in concrete settings, would eschew. In my view, the "presumption of unreviewability" announced today is a product of that lack of discipline that easy cases make all too easy. The majority, eager to reverse what it goes out of its way to label as an "implausible result," ante, at 827, not only does reverse, as I agree it should, but along the way creates out of whole cloth the notion that agency decisions not to take "enforcement action" are unreviewable unless Congress has rather specifically indicated otherwise. Because this "presumption of unreviewability" is fundamentally at odds with rule-of-law principles firmly embedded in our jurisprudence, because it seeks to truncate an emerging line of judicial authority subjecting enforcement discretion to rational and principled constraint, and because, in the end, the presumption may well be indecipherable, one can only hope that it will come to be understood as a relic of a particular factual setting in which the full implications of such a presumption were neither confronted nor understood.

I write separately to argue for a different basis of decision: that refusals to enforce, like other agency actions, are reviewable in the absence of a "clear and convincing" congressional intent to the contrary, but that such refusals warrant deference when, as in this case, there is nothing to suggest that an agency with enforcement discretion has abused that discretion.

I

In response to respondents' petition, the FDA Commissioner stated that the FDA would not pursue the complaint

"under our inherent discretion to decline to pursue certain enforcement matters. The unapproved use of approved drugs is an area in which the case law is far from uniform. Generally, enforcement proceedings in this area are initiated only when there is a serious danger to the public health or a blatant scheme to defraud. We cannot conclude that those dangers are present under State lethal injection laws .... [W]e decline, as a matter of enforcement discretion, to pursue supplies of drugs under State control that will be used for execution by lethal injection."

The FDA may well have been legally required to provide this statement of basis and purpose for its decision not to take the action requested. Under the Administrative Procedure Act, such a statement is required when an agency denies a "written application, petition, or other request of an interested person made in connection with any agency proceedings."^[1] 5 U. S. C. § 555(e). Whether this written explanation was legally required or not, however, it does provide a sufficient basis for holding, on the merits, that the FDA's refusal to grant the relief requested was within its discretion.

First, respondents on summary judgment neither offered nor attempted to offer any evidence that the reasons for the FDA's refusal to act were other than the reasons stated by the agency. Second, as the Court correctly concludes, the FDCA is not a mandatory statute that requires the FDA to prosecute all violations of the Act. Thus, the FDA clearly has significant discretion to choose which alleged violations of the Act to prosecute. Third, the basis on which the agency chose to exercise this discretion—that other problems were viewed as more pressing—generally will be enough to pass muster. Certainly it is enough to do so here, where the number of people currently affected by the alleged misbranding is around 200, and where the drugs are integral elements in a regulatory scheme over which the States exercise pervasive and direct control.

When a statute does not mandate full enforcement, I agree with the Court that an agency is generally "far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." Ante, at 831–832. As long as the agency is choosing how to allocate finite enforcement resources, the agency's choice will be entitled to substantial deference, for the choice among valid alternative enforcement policies is precisely the sort of choice over which agencies generally have been left substantial discretion by their enabling statutes. On the merits, then, a decision not to enforce that is based on valid resource-allocation decisions will generally not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U. S. C. § 706(2)(A). The decision in this case is no exception to this principle.

The Court, however, is not content to rest on this ground. Instead, the Court transforms the arguments for deferential review on the merits into the wholly different notion that "enforcement" decisions are presumptively unreviewable altogether—unreviewable whether the resource-allocation rationale is a sham, unreviewable whether enforcement is declined out of vindictive or personal motives, and unreviewable whether the agency has simply ignored the request for enforcement. But cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982) (due process and equal protection may prevent agency from ignoring complaint). But surely it is a far cry from asserting that agencies must be given substantial leeway in allocating enforcement resources among valid alternatives to suggesting that agency enforcement decisions are presumptively unreviewable no matter what factor caused the agency to stay its hand.

This "presumption of unreviewability" is also a far cry from prior understandings of the Administrative Procedure Act. As the Court acknowledges, the APA presumptively entitles any person "adversely affected or aggrieved by agency action," 5 U. S. C. § 702—which is defined to include the "failure to act," 5 U. S. C. § 551 (13)—to judicial review of that action. That presumption can be defeated if the substantive statute precludes review, § 701(a)(1), or if the action is committed to agency discretion by law, § 701(a)(2), but as Justice Harlan's opinion in Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), made clear in interpreting the APA's judicial review provisions:

"The legislative material elucidating [the APA] manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act's 'generous review provisions' must be given a 'hospitable' interpretation.... [O]nly upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Id., at 140–141 (citations omitted; footnote omitted).

See generally H. R. Rep. No. 1980, 79th Cong., 2d Sess., 41 (1946) (to preclude APA review, a statute "must upon its face give clear and convincing evidence of an intent to withhold it"); cf. Moog Industries, Inc. v. FTC, 355 U. S. 411, 414 (1958) (Federal Trade Commission decisions to prosecute are reviewable and can be overturned when "patent abuse of discretion" demonstrated).^[2] Rather than confront Abbott Laboratories, perhaps the seminal case on judicial review under the APA, the Court chooses simply to ignore it."^[3] Instead, to support its new-found "presumption of unreviewability," the Court resorts to completely undefined and unsubstantiated references to "tradition," see ante, at 831, and to citation of four cases. See United States v. Batchelder, 442 U. S. 114 (1979); United States v. Nixon, 418 U. S. 683 (1974); Vaca v. Sipes, 386 U. S. 171 (1967); Confiscation Cases, 7 Wall. 454 (1869).^[4] Because the Court's "tradition" rationale, which flies in the face of Abbott Laboratories, stands as a flat, unsupported ipse dixit, these four cases form the only doctrinal foundation for the majority's presumption of unreviewability.

Yet these cases hardly support such a broad presumption with respect to agency refusal to take enforcement action. The only one of these cases to involve administrative action, Vaca v. Sipes, suggests, in dictum, that the General Counsel of the National Labor Relations Board has unreviewable discretion to refuse to initiate an unfair labor practice complaint. To the extent this dictum is sound, later cases indicate that unreviewability results from the particular structure of the National Labor Relations Act and the explicit statutory intent to withdraw review found in 29 U. S. C. § 153(d), rather than from some general "presumption of unreviewability" of enforcement decisions. See NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 138 (1975).^[5] Neither Vaca nor Sears, Roebuck discusses the APA. The other three cases—Batchelder, Nixon, and the Confiscation Cases—all involve prosecutorial discretion to enforce the criminal law. Batchelder does not maintain that such discretion is unreviewable, but only that the mere existence of prosecutorial discretion does not violate the Constitution. The Confiscation Cases, involving suits to confiscate property used in aid of rebellion, hold that, where the United States brings a criminal action that is "wholly for the benefit of the United States," 7 Wall., at 455, a person who provides information leading to the action has no "vested" or absolute right to demand, "so far as the interests of the United States are concerned," id., at 458, that the action be maintained. The half-sentence cited from Nixon, which states that the Executive has "absolute discretion to decide whether to prosecute a case," 418 U. S., at 693, is the only apparent support the Court actually offers for even the limited notion that prosecutorial discretion in the criminal area is unreviewable. But that half-sentence is of course misleading, for Nixon held it an abuse of that discretion to attempt to exercise it contrary to validly promulgated regulations. Thus, Nixon actually stands for a very different proposition than the one for which the Court cites it: faced with a specific claim of abuse of prosecutorial discretion, Nixon makes clear that courts are not powerless to intervene. And none of the other prosecutorial discretion cases upon which the Court rests involved a claim that discretion had been abused in some specific way.

Moreover, for at least two reasons it is inappropriate to rely on notions of prosecutorial discretion to hold agency inaction unreviewable. First, since the dictum in Nixon, the Court has made clear that prosecutorial discretion is not as unfettered or unreviewable as the half-sentence in Nixon suggests. As one of the leading commentators in this area has noted, "the case law since 1974 is strongly on the side of reviewability." 2 K. Davis, Administrative Law § 9:6, p. 240 (1979). In Blackledge v. Perry, 417 U. S. 21, 28 (1974), instead of invoking notions of "absolute" prosecutorial discretion, we held that certain potentially vindictive exercises of prosecutorial discretion were both reviewable and impermissible. The "retaliatory use" of prosecutorial power is no longer tolerated. Thigpen v. Roberts, 468 U. S. 27, 30 (1984). Nor do prosecutors have the discretion to induce guilty pleas through promises that are not kept. Blackledge v. Allison, 431 U. S. 63 (1977); Santobello v. New York, 404 U. S. 257, 262 (1971). And in rejecting on the merits a claim of improper prosecutorial conduct in Bordenkircher v. Hayes, 434 U. S. 357 (1978), we clearly laid to rest any notion that prosecutorial discretion is unreviewable no matter what the basis is upon which it is exercised:

"There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise." Id., at 365.

See also Wayte v. United States, ante, at 608. Thus, even in the area of criminal prosecutions, prosecutorial discretion is not subject to a "presumption of unreviewability." See generally Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1537–1543 (1981). If a plaintiff makes a sufficient threshold showing that a prosecutor's discretion has been exercised for impermissible reasons, judicial review is available.

Second, arguments about prosecutorial discretion do not necessarily translate into the context of agency refusals to act. "In appropriate circumstances the Court has made clear that traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which the enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law." Marshall v. Jerrico, Inc., 446 U. S. 238, 249 (1980) (citations omitted). Criminal prosecutorial decisions vindicate only intangible interests, common to society as a whole, in the enforcement of the criminal law. The conduct at issue has already occurred; all that remains is society's general interest in assuring that the guilty are punished. See Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"). In contrast, requests for administrative enforcement typically seek to prevent concrete and future injuries that Congress has made cognizable—injuries that result, for example, from misbranded drugs, such as alleged in this case, or unsafe nuclear powerplants, see, e. g., Florida Power & Light Co. v. Lorion, ante, p. 729—or to obtain palpable benefits that Congress has intended to bestow—such as labor union elections free of corruption, see Dunlop v. Bachowski, 421 U. S. 560 (1975). Entitlements to receive these benefits or to be free of these injuries often run to specific classes of individuals whom Congress has singled out as statutory beneficiaries. The interests at stake in review of administrative enforcement decisions are thus more focused and in many circumstances more pressing than those at stake in criminal prosecutorial decisions. A request that a nuclear plant be operated safely or that protection be provided against unsafe drugs is quite different from a request that an individual be put in jail or his property confiscated as punishment for past violations of the criminal law. Unlike traditional exercises of prosecutorial discretion, "the decision to enforce—or not to enforce—may itself result in significant burdens on a ... statutory beneficiary." Marshall v. Jerrico, Inc., supra, at 249.

Perhaps most important, the sine qua non of the APA was to alter inherited judicial reluctance to constrain the exercise of discretionary administrative power—to rationalize and make fairer the exercise of such discretion. Since passage of the APA, the sustained effort of administrative law has been to "continuously narro[w] the category of actions considered to be so discretionary as to be exempted from review." Shapiro, Administrative Discretion: The Next Stage, 92 Yale L. J. 1487, 1489, n. 11 (1983). Discretion may well be necessary to carry out a variety of important administrative functions, but discretion can be a veil for laziness, corruption, incompetency, lack of will, or other motives, and for that reason "the presence of discretion should not bar a court from considering a claim of illegal or arbitrary use of discretion." L. Jaffe, Judicial Control of Administrative Action 375 (1965). Judicial review is available under the APA in the absence of a clear and convincing demonstration that Congress intended to preclude it precisely so that agencies, whether in rulemaking, adjudicating, acting or failing to act, do not become stagnant backwaters of caprice and lawlessness. "Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat." United States v. Wunderlich, 342 U. S. 98, 101 (1951).

For these and other reasons,^[6] reliance on prosecutorial discretion, itself a fading talisman, to justify the unreviewabilty of agency inaction is inappropriate. See generally Stewart & Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1195, 1285–1286, n. 386 (1982) (discussing differences between agency inaction and prosecutorial discretion); Note, Judicial Review of Administrative Inaction, 83 Colum. L. Rev. 627, 658–661 (1983) (same). To the extent arguments about traditional notions of prosecutorial discretion have any force at all in this context, they ought to apply only to an agency's decision to decline to seek penalties against an individual for past conduct, not to a decision to refuse to investigate or take action on a public health, safety, or welfare problem.

II

The "tradition" of unreviewability upon which the majority relies is refuted most powerfully by a firmly entrenched body of lower court case law that holds reviewable various agency refusals to act.^[7] This case law recognizes that attempting to draw a line for purposes of judicial review between affirmative exercises of coercive agency power and negative agency refusals to act, see ante, at 832, is simply untenable; one of the very purposes fueling the birth of administrative agencies was the reality that governmental refusal to act could have just as devastating an effect upon life, liberty, and the pursuit of happiness as coercive governmental action. As Justice Frankfurter, a careful and experienced student of administrative law, wrote for this Court, "any distinction, as such, between 'negative' and 'affirmative' orders, as a touchstone of jurisdiction to review [agency action] serves no useful purpose." Rochester Telephone Corp. v. United States, 307 U. S. 125, 143 (1939).^[8] The lower courts, facing the problem of agency inaction and its concrete effects more regularly than do we, have responded with a variety of solutions to assure administrative fidelity to congressional objectives: a demand that an agency explain its refusal to act, a demand that explanations given be further elaborated, and injunctions that action "unlawfully withheld or unreasonably delayed," 5 U. S. C. § 706, be taken. See generally Stewart & Sunstein, 95 Harv. L. Rev., at 1279. Whatever the merits of any particular solution, one would have hoped the Court would have acted with greater respect for these efforts by responding with a scalpel rather than a blunderbuss.

To be sure, the Court no doubt takes solace in the view that it has created only a "presumption" of unreviewability, and that this "presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Ante, at 832–833. But this statement implies far too narrow a reliance on positive law, either statutory or constitutional, see ibid., as the sole source of limitations on agency discretion not to enforce. In my view, enforcement discretion is also channelled by traditional background understandings against which the APA was enacted and which Congress hardly could be thought to have intended to displace in the APA.^[9] For example, a refusal to enforce that stems from a conflict of interest, that is the result of a bribe, vindictiveness or retaliation, or that traces to personal or other corrupt motives ought to be judicially remediable.^[10] Even in the absence of statutory "guidelines" precluding such factors as bases of decision, Congress should not be presumed to have departed from principles of rationality and fair process in enacting the APA.^[11] Moreover, the agency may well narrow its own enforcement discretion through historical practice, from which it should arguably not depart in the absence of explanation, or through regulations and informal action. Traditional principles of rationality and fair process do offer "meaningful standards" and "law to apply" to an agency's decision not to act, and no presumption of unreviewability should be allowed to trump these principles.

Perhaps the Court's reference to guidance from the "substantive statute" is meant to encompass such concerns and to allow the "common law" of judicial review of agency action to provide standards by which inaction can be reviewed. But in that case I cannot fathom what content the Court's "presumption of unreviewability" might have. If inaction can be reviewed to assure that it does not result from improper abnegation of jurisdiction, from complete abdication of statutory responsibilities, from violation of constitutional rights, or from factors that offend principles of rational and fair administrative process, it would seem that a court must always inquire into the reasons for the agency's action before deciding whether the presumption applies.^[12] As Judge Friendly said many years ago, review of even a decision over which substantial administrative discretion exists would then be available to determine whether that discretion had been abused because the decision was "made without a rational explanation, inexplicably departed from established policies, or rested ... on other considerations that Congress could not have intended to make relevant." Wong Wing Hang v. INS, 360 F. 2d 715, 719 (CA2 1966). In that event, we would not be finding enforcement decisions unreviewable, but rather would be reviewing them on the merits, albeit with due deference, to assure that such decisions did not result from an abuse of discretion.

That is the basis upon which I would decide this case. Under § 706(A)(2) and Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), agency action, including the failure to act, is reviewable to assure that it is not "arbitrary, capricious, or an abuse of discretion," unless Congress has manifested a clear and convincing intent to preclude review. Review of enforcement decisions must be suitably deferential in light of the necessary flexibility the agencies must have in this area, but at least when "enforcement" inaction allegedly deprives citizens of statutory benefits or exposes them to harms against which Congress has sought to provide protection, review must be on the merits to ensure that the agency is exercising its discretion within permissible bounds. See Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L. J. 965 (1969); L. Jaffe, Judicial Control of Administrative Action 375 (1965).

III

The problem of agency refusal to act is one of the pressing problems of the modern administrative state, given the enormous powers, for both good and ill, that agency inaction, like agency action, holds over citizens. As Dunlop v. Bachowski, 421 U. S. 560 (1975), recognized, the problems and dangers of agency inaction are too important, too prevalent, and too multifaceted to admit of a single facile solution under which "enforcement" decisions are "presumptively unreviewable." Over time, I believe the approach announced today will come to be understood, not as mandating that courts cover their eyes and their reasoning power when asked to review an agency's failure to act, but as recognizing that courts must approach the substantive task of reviewing such failures with appropriate deference to an agency's legitimate need to set policy through the allocation of scarce budgetary and enforcement resources. Because the Court's approach, if taken literally, would take the courts out of the role of reviewing agency inaction in far too many cases, I join only the judgment today.

---

1. All Members of the Court in Dunlop v. Bachowski, 421 U. S. 560 (1975), agreed that a statement of basis and purpose was required for the denial of the enforcement request at issue there. See id., at 571–575; id., at 594 (Rehnquist, J., concurring in result in part and dissenting in part). Given the revisionist view the Court takes today of Dunlop, perhaps these statements too are to be limited to the specific facts out of which they emerged. Yet the Court's suggestion that review is proper when the agency asserts a lack of jurisdiction to act, see ante, at 833, n. 4, or some other basis inconsistent with congressional intent, would seem to presuppose the existence of a statement of basis and purpose explaining the basis for denial of enforcement action.
2. The Senate Committee Report accompanying the APA stated: "The mere filing of a petition does not require an agency to grant it, or to hold a hearing, or engage in any other public rule making proceedings. The refusal of an agency to grant the petition or to hold rule making proceedings, therefore, would not per se be subject to judicial reversal." S. Doc. No. 248, 79th Cong., 2d Sess., 201 (1946). As Judge McGowan has observed, "this language implies that judicial review would sometimes be available in the circumstances mentioned" in the Report. Natural Resources Defense Council, Inc. v. SEC, 196 U. S. App. D. C. 124, 136, n. 14, 606 F. 2d 1031, 1043, n. 14 (1979).
3. The Court did not ignore Abbott Laboratories in Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 454, 462–463 (1979), a denial of enforcement case that required "clear and convincing evidence" of congressional intent to preclude review of the failure to investigate a complaint.
4. It is ironic that Vaca v. Sipes and the Confiscation Cases were cited by the Government in its brief in Dunlop when it unsuccessfully pressed the very proposition accepted today: that agency enforcement decisions are presumptively unreviewable. See Brief for Petitioner in Dunlop v. Bachowski, 0. T. 1974, No. 74–466, pp. 25–31.
5. Cf. Southern R. Co. v. Seaboard Allied Milling Corp., supra (concluding, after extensive examination of history and structure of Act, that agency decisions not to investigate under § 15(8)(a) of the Interstate Commerce Act are unreviewable).
6. Legal historians have suggested that the notion of prosecutorial discretion developed in England and America largely because private prosecutions were simultaneously available at the time. See Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. Chi. L. Rev. 439, 443–446 (1974). Private enforcement of regulatory statutes, such as the FDCA, is of course largely unavailable.

   In addition, scholars have noted that the tradition of unreviewability of prosecutor's decisions developed at a time when virtually all executive action was considered unreviewable. In asking what accounts for this "tradition," one scholar offered the following rhetorical questions:

   "Is it because the tradition became settled during the nineteenth century when courts were generally assuming that judicial intrusion into any administration would be unfortunate? Is it because the tradition became settled while the Supreme Court was actuated by its 1840 remark that 'The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief.' [citing Decatur v. Paulding, 14 Pet. 497, 516 (1840)]. Is it because the tradition became settled before the courts made the twentieth-century discovery that the courts can interfere with executive action to protect against abuses but at the same time can avoid taking over the executive function? Is it because the tradition became settled before the successes of the modern system of limited judicial review became fully recognized?

   "On the basis of what the courts know today about leaving administration to administrators but at the same time providing an effective check to protect against abuses, should the courts not take a fresh look at the tradition that prevents them from reviewing the prosecuting function?" K. Davis, Discretionary Justice 211 (1969) (footnote omitted).

7. See, e. g., Bargmann v. Helms, 230 U. S. App. D. C. 164, 715 F. 2d 638 (1983); Natural Resources Defense Council, Inc. v. EPA, 683 F. 2d 752, 753, 767–768 (CA3 1982); WWHT, Inc. v. FCC, 211 U. S. App. D. C. 218, 656 F. 2d 807 (1981); Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F. 2d 564 (CA10 1981); Natural Resources Defense Council, Inc. v. SEC, 196 U. S. App. D. C. 124, 606 F. 2d 1031 (1979); British Airways Board v. Port Authority of New York, 564 F. 2d 1002, 1012–1013 (CA2 1977); Pennsylvania v. National Assn. of Flood Insurers, 520 F. 2d 11 (CA3 1975); REA Express, Inc. v. CAB, 507 F. 2d 42 (CA2 1974); Davis v. Romney, 490 F. 2d 1360 (CA3 1974); Adams v. Richardson, 156 U. S. App. D. C. 267, 480 F. 2d 1159 (1973) (en banc); International Harvester Co. v. Ruckelshaus, 155 U. S. App. D. C. 411, 478 F. 2d 615 (1973); Rockbridge v. Lincoln, 449 F. 2d 567 (CA9 1971); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U. S. App. D. C. 74, 439 F. 2d 584 (1971); Environmental Defense Fund, Inc. v. Hardin, 138 U. S. App. D. C. 391, 428 F. 2d 1093 (1970); Medical Committee for Human Rights v. SEC, 139 U. S. App. D. C. 226, 432 F. 2d 659 (1970), vacated as moot, 404 U. S. 403 (1972); Trailways of New England, Inc. v. CAB, 412 F. 2d 926 (CA1 1969); International Union, United Auto., Aero. & Agric. Implement Workers v. NLRB, 427 F. 2d 1330 (CA6 1970); Public Citizen Health Research Group v. Auchter, 554 F. Supp. 242 (DC 1983), rev'd in part, 226 U. S. App. D. C. 413, 702 F. 2d 1150 (1983); Sierra Club v. Gorsuch, 551 F. Supp. 785 (ND Cal. 1982); Hoffmann-LaRoche, Inc. v. Weinberger, 425 F. Supp. 890 (DC 1975); NAACP v. Levi, 418 F. Supp. 1109 (DC 1976); Guerrero v. Garza, 418 F. Supp. 182 (WD Wis. 1976); Souder v. Brennan, 367 F. Supp. 808, 811 (DC 1973); City-Wide Coalition Against Childhood Lead Paint Poisoning v. Philadelphia Housing Auth., 356 F. Supp. 123 (ED Pa. 1973); American Public Health Assn. v. Veneman, 349 F. Supp. 1311 (DC 1972).

   To be sure, some of these cases involved the refusal to initiate rulemaking proceedings, and the majority expressly disavows any claim that its presumption of unreviewability applies to such refusals. See ante, at 825, n. 2. But the majority offers no explanation of how an enforcement request that seeks protection of the public or statutory beneficiaries from present and future concrete harms, or from loss of deserved benefits, implicates considerations substantially different from those at stake in judicial review of the refusal to initiate rulemaking proceedings.

8. Justice Frankfurter went to some length in Rochester Telephone to expose the fallacy of any purported distinction between agency action and inaction:

   "'[N]egative order' and 'affirmative order' are not appropriate terms of art.... 'Negative' has really been an obfuscating adjective in that it implied a search for a distinction—non-action as against action—which does not involve the real considerations on which rest, as we have seen, the reviewability of Commission orders within the framework of its discretionary authority and within the general criteria of justiciability. 'Negative' and 'affirmative,' in the context of these problems, is as unilluminating and mischief-making a distinction as the outmoded line between 'nonfeasance' and 'misfeasance.'

   "... An order of the Commission dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less, than an order directing some change in status.... In the application of relevant canons of judicial review an order of the Commission directing the adoption of a practice might raise considerations absent from a situation where the Commission merely allowed such a practice to continue. But this bears on the disposition of a case and should not control jurisdiction." 307 U. S., at 140–142 (emphasis added; footnotes omitted).

9. The Court cites 5 K. Davis, Administrative Law § 28:5 (1984), for the proposition that the APA did not alter the "common law" of judicial review of agency action; Davis' correct statement ought to make clear that traditional principles of fair and rational decisionmaking were incorporated into, rather than obliterated by, the APA, and that judicial review is available to assure that agency action, including inaction, is consistent with these principles. See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 378 (1982) ("[W]e must examine Congress' perception of the law that it was shaping or reshaping").
10. "A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions." Marshall v. Jerrico, Inc., 446 U. S. 238, 249–250 (1980).
11. Indeed, "[t]he more general and powerful the background understanding, the less likely it is to have been stated explicitly by the legislature, even if the legislature in fact shares that understanding." Stewart & Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1195, 1231 (1982).
12. When an agency asserts that a refusal to enforce is based on enforcement priorities, it may be that, to survive summary judgment, a plaintiff must be able to offer some basis for calling this assertion into question or for justifying his inability to do so.