Download 1 Proportionality Review in Administrative Law Jud Mathews and more Schemes and Mind Maps Administrative Law in PDF only on Docsity!
Proportionality Review in Administrative Law Jud Mathews
- I NTRODUCTION
At the most basic level, the principle of proportionality captures the common- sensical idea that, when the government acts, the means it chooses should be well- adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons” (Fleiner 1928, 404). Courts instantiate the principle through a form of review that typically passes a challenged legal measure through a prescribed sequence of increasingly stringent legal tests, in order to determine whether the measure in fact impinges disproportionately on the rights or interests of a party.
The global spread of proportionality is one of the worst-kept secrets in comparative law. As proportionality has become a fixture in numerous national and international legal regimes over the past few decades (Stone Sweet and Mathews 2008), it has also attracted a substantial amount of scholarly attention, and more than a little criticism. 1 But the lion’s share of attention has focused on the use of proportionality in the realm of constitutional law, as a technique for adjudicating constitutional rights claims. Less has been said about proportionality’s role within administrative law. In fact,
(^1) Major books devoted to proportionality that have appeared within the last five years alone include titles by Barak (2012), Bomhoff (2013), Cohen-Eliya and Porat (2013),Huscroft et al. (2016), and Klatt and Meister (2012). Critical treatments of the use of proportionality include Webber (2010) and Tsakyrakis (2009).
proportionality has also come to play a significant role in the administrative law of a large and diverse set of jurisdictions, as a control on administrative discretion.
If the use of proportionality review in administrative law is widespread, it is also characterized by significant national differences. This chapter aims to survey that diversity, and to help make sense of it, by organizing it and offering hypotheses about some of the sources of the variation that we observe. I draw on examples from several jurisdictions, but I do not claim that this account is remotely comprehensive or definitive.^2 The use of proportionality review in administrative law is a topic that deserves more thorough and systematic study.^3 Further empirical work would permit, among other things, testing of the hypotheses tentatively offered here.
I suggest that we can understand the differences in how proportionality is used in the administrative law of different jurisdictions in terms of three principle axes of variation. With respect to any jurisdiction, we can ask:
- how extensive the use of proportionality is (for instance, is proportionality applied haphazardly, or only in a few settings, or is it a general head of review that applies in principle to all administrative actions?),
- how intensive the application of proportionality is (for instance, does proportionality entail serious judicial scrutiny, or substantial deference, or does it amount in practice to a low-intensity reasonableness review?), and
(^2) It is also worth noting that this chapter focuses exclusively on proportionality as a form of judicial control over administrative action. There are avenues besides courts for bringing the proportionality principle to bear. For instance, in China, the powerful StateCouncil issued guidelines in 2004 that in essence instructed administrative bodies to exercise discretion proportionately (Huang and Law 2014, 25). For that matter, while the presidential rulemaking review conducted in the United States under the auspices of the Office of Management and Budget does not impose a proportionality test, its mandate to agencies to demonstrate that their measures are cost-justified is broadly similar in spirit. (^3) For a recent and very useful volume concerning proportionality in administrative law in a number of (principally European) jurisdictions, see Waard (2016).
(1) legitimacy, (2) suitability, (3) necessity, and (4) proportionality stricto sensu —in the strict sense—of a challenged measure. (In many jurisdictions, the first step is regarded as a threshold inquiry, rather than a part of the analysis proper).
Suppose, for instance, that the Minister of Transportation issues regulations banning most heavy goods trucks from highways during daytime weekend hours.^4 A full- dress review of the measure’s proportionality might look something like the following. First, the reviewing court would inquire into the legitimacy of the challenged action, or more precisely, into the legitimacy of the government’s purpose in taking it. This is a low bar to pass—it is a serious and rare infirmity for a government measure to have no legitimate purpose—and few measures are struck down at this stage. The Ministry should be able to justify the measure as a means to pursue ends for which it is responsible: reducing road congestion and improving public safety, for instance.
Next, the court asks whether the challenged measure is a “suitable” means to the achievement of its purpose. This, too, is a fairly relaxed inquiry, similar in spirit to the rational basis review conducted by American courts. To qualify as suitable, a measure need not be the best possible or most appropriate; it need only make some contribution to the legitimate purpose already identified. If the Ministry can credibly claim that the ban reduces congesting and improves safety, it will pass this test.
From this point on, proportionality review becomes progressively more demanding—although in practice, just how demanding can vary quite a bit. The next question is whether the measure is necessary to achieve its stated goal. This necessity (^4) Germany’s Federal Constitutional Court evaluated such a measure in the Ferienreiseverkehrsordnung [Holiday Travel Traffic Regulation] case. Bundesverfassungsgericht, 26 BVerfGE 259 (1969).
inquiry is often operationalized as a least-restrictive means test: in other words, could the government’s purpose also be achieved by alternative measures that infringe less on the freedom or interests of others? If the answer is yes, the government’s action is a disproportionate measure, and hence impermissible.
Whether our putative driving ban would survive this stage of review depends heavily on how the court conducts it. Least-restrictive means testing is, in principle, quite an intensive form of judicial scrutiny. But as discussed further below, courts in different jurisdictions have been known to modulate the stringency of the inquiry, for instance by adjusting how much deference they give to government judgments about the effects and availability of policy alternatives.
If a measure survives the necessity test, it proceeds to the final phase of the inquiry, a balancing analysis, also known as “proportionality in the strict sense.” Now the court weighs the benefits of the challenged measure (which has already been found to be appropriately tailored to the end it serves) against its costs, in terms of infringements of protected rights or interests. Only if its benefits exceed the burden it imposes does the challenged measure survive. Obviously, in this final stage of the analysis, courts cannot avoid making policy assessments and value judgments.
2.2 Origins of Proportionality Review
The modern, multistep proportionality framework is an innovation of Germany’s Federal Constitutional Court, which has used it to adjudicate constitutional rights claims for more than half a century.^5 But the Constitutional Court adapted the concept from
(^5) Apothekenurteil (Pharmacy Case), Bunderverfassungsgericht, 7 BverfGE 377 (1958).
If the principle of proportionality was recognized by the end of the eighteenth century, proportionality review would not develop until nearly a century later, after administrative acts became subject to review by courts. The key development here was the establishment in Prussia of the Supreme Administrative Court ( Oberverwaltungsgericht ) in 1875. Within a few years, the court had fashioned the proportionality principle into a meaningful constraint over administrative discretion, both by circumscribing the legitimate ends of the police power,^9 and also by scrutinizing the means chosen in pursuit of those ends.
Two examples will suffice by way of illustrating the early proportionality case law of the Supreme Administrative Court. In an 1886 case, the court ruled that the police could not require, on public safety grounds, a landowner to remove a post erected at the edge of his property. Rather, all that was necessary to protect the public was requiring the landowner to light the post after dark. As the court explained, “[t]he protection from accidents... is indeed the task of the police; this task and the authority finds its limit, however, in that the chosen measures may not extends farther than they must to meet the goal of eliminating the danger.”^10 That same year, the court ruled that it was disproportionate, and hence, impermissible for the police to close down a shop in response to the shopowner’s distribution of brandy without a license. The operation of the shop was itself not unlawful; only the distribution of brandy was. And so closing the shop
(^9) In the famous Kreuzberg decision of 1882, the Court overturned a police order forbidding the construction of buildings that could obstruct the view of, or from, the Kreuzberg national monument in Berlin, on the grounds that the police power could notbe used to promote aesthetic goals. Preußisches Oberverwaltungsgericht, 9 PrOVG 353. (^10) Preußisches Oberverwaltungsgericht, 13 PrOVG 426, 427.
was a more drastic step than the police needed to take to meet the legitimate goal of enforcing the license requirement.^11
Other administrative courts within Germany soon began following Prussia’s lead, striking down police measures on proportionality grounds (Stern 1993, 168). Though the subjects of imperial Germany did not enjoy the protection of entrenched constitutional rights, proportionality did make a significant contribution to individual freedom and the rule of law, by regularizing the use of state power.
- AXES OF VARIATION
3.1 Extensiveness of Use
Administrative law systems differ in terms of how extensively they employ proportionality review. In some systems, proportionality is regarded as a constitutional or general principle of law that applies, in principle, to the whole corpus of law. In others, proportionality applies only to certain areas within administrative law or crops up unpredictably. And some administrative law systems do not recognize proportionality as a governing legal standard at all.
The European Union and Germany stand at one end of the spectrum, as jurisdictions in which the proportionality principle counts as fundamental law. In the European Union, proportionality numbers among the general principles of EU law, and applies to EU measures as well as to member state measures alleged to infringe freedoms guaranteed in EU Treaties (Tridimas 2006, 137-38). Similarly, in Germany, proportionality counts as a fundamental constitutional principle, derived from the rule of
(^11) Preußisches Oberverwaltungsgericht, 13 PrOVG 424, 425.
discretion ( Ermessensfehlgebrauch ) and so could be invalidated on that ground (Maurer 2011, 149-50). 13 In administrative litigation, proportionality often ends up functioning as a last line of offense, to be litigated after other lines of attack against a measure fail, and when they are unavailable.
In other jurisdictions, the use of proportionality has been formally confined to one or a few areas within administrative law. In England, for instance, the venerable and deferential Wednesbury standard continues to govern most administrative decisions. Proportionality, however, applies to matters decided under EU law or the Human Rights Act of 1998, which enacted as domestic law rights from the European Convention on Human Rights (Davies and Williams 2016, 71). In Canada, proportionality informs the reasonableness review of administrative action insofar as it implicates rights guaranteed under Canada’s Charter of Rights and Values.^14 And even though judicial review of administrative discretion is extremely limited in China, proportionality has made some scattered appearances there as well, including in a decision of the Supreme People’s Court,^15 and significantly, in several lower court cases selected for publication in the anthology of Guiding Cases, which is edited by the Administrative Tribunal of Supreme People’s Court (Wang 2013, 14-17). In some jurisdictions, including Taiwan and South Korea, proportionality has been taken up unevenly by different high courts (Huang and Law 2014, 13, 21). (^13) For a detailed consideration of the nature of errors of discretion, and their relation to the principle of proportionality, see Alexy (1986). 14 15 Doré v. Barreau du Québec, [2012] 1 SCR 395. Huifeng Industry Development Co., Ltd. v. Harbin City Planning Bureau, Judicial Decision No. 20 of Supreme People’s Court (1999). The case concerned a local planning bureau’s order that required partial demolition of a building that obstructed a historic site.The Court sustained a lower court’s ruling that the order was excessive and invalid insofar as it required more demolition than necessary to eliminate the obstruction.
The limited adoption of proportionality in a jurisdiction sometimes seems to trigger an expansion of proportionality’s use, or at least calls for such an expansion. Its adoption in the constitutional context may pave the way for its use in administrative law (or vice versa). In the years since the adoption of the Human Rights Act in the UK, a number of scholars there have called for the adoption of proportionality as a general head of review,^16 and proportionality has in fact made some inroads in administrative caselaw (Davies and Williams 2016, 80).^17 With respect to Canada, scholars have advanced different arguments to the effect that courts should more tightly integrate administrative law doctrines and constitutional law principles, including proportionality (Walters 2015; Carter 2004). In recent years, proportionality has experienced increased recognition in a number of Asian jurisdictions, including Taiwan, Korea, and Japan as well as China, and may come to play a still more prominent role in those jurisdictions in years to come (Huang and Law 2014).
France is a jurisdiction where proportionality has come to be widely used in a number of areas of administrative law over a period of years (Sanchez 2016, 43-44). Police measures that infringe on basic freedoms have long been subject to a form of proportionality review administered by France’s Conseil d’Etat, the highest administrative tribunal For instance, in the celebrated Benjamin case from 1933, the Conseil d’Etat struck down a police measure banning a conference organized on by a
(^16) For some of the contributions to this debate, see Craig (2013, 88 n.24). (^17) See Paonette v. Attorney General of Trinidad and Tobago (2010) UKPC 32 (2012) 1 AC 1, (38).
is substantial variation, across jurisdictions and across contexts, in how intensively proportionality is applied.
Writing with reference to the Human Rights Act, Cora Chan has inventoried a number of techniques UK courts have employed to soften the stringency of proportionality review. These include: skipping stages of the analysis or merging it into an omnibus “fair balance” or “reasonableness” review; granting some measure of deference to the primary decision maker’s judgment, either of the availability of less- infringing alternatives or the proportionality of the measure more broadly; and limiting review to cases of “manifest disproportionality” (Chan 2012, 9). These techniques appear in other jurisdictions as well, alongside some others, such as shifting to a measure’s challenger the burden of demonstrating the availability of less onerous alternatives (De Búrca 1993, 111-12).
In some jurisdictions, proportionality is rarely if ever applied in a very demanding form. In China, for example, Jing Wang reports that courts in China are reluctant to review discretionary decisions with substantial stringency, even in the rare instances where they are in a position to invoke proportionality at all (Wang 2013, 18-19). Elsewhere, courts appear to oscillate between more and less intensive versions of proportionality with little predictability. Describing the use of proportionality by Taiwan’s Constitutional Court, Cheng-yi Huang and David Law write that “the test remains underdeveloped and inconsistent in application” (Huang and Law 2014, 20). In systems where proportionality review is well-established, however, courts tend to vary the scrutiny of review with the context of the case in a more-or-less predictable fashion.
The EU offers a good example. The degree of scrutiny that the Court of First Instance and the European Court of Justice applies varies across the range of cases the courts hear, in light of the relative competences of courts and legislatures and the importance of the issues the courts are charged to protect (Craig 2006, 657). Judicial scrutiny is at a low ebb when the courts review discretionary choices that require political, social, and economic judgments and trade-offs.^21 In such cases, the courts generally overturn only those directives or regulations found to be “manifestly disproportionate.” The courts tend to be less deferential, for instance, when reviewing burdens and penalties, which often pose substantial hardships for the individual challengers and do not usually implicate the design of broader regulatory programs (Craig 2006, 681).^22 A claim that a measure violates an EU right triggers high-intensity review (Craig and Burca 2011, 546). Predicting the degree of scrutiny may become more difficult to the extent that a case features factors that augur both for stepped-up and stepped-down scrutiny—say, a broadly discretionary policy choice that allegedly violates a right (Craig and Burca 2011, 546).
Varying the level of scrutiny with the case characteristics is a way the proportionality framework can be made to respect a number of values relevant to the administrative process or policy goals. For instance, in Japan, courts apply a notably deferential version of proportionality-style review to administrative decisions not to act (Chikushi 2013). This directional deference—more pronounced towards agency inaction than action—reflects a sensitivity to the administration’s inherent advantage, relative to
(^21) C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11461. 22 See also Tridimas (1999).
2006, 670). What would be surprising, on the other hand, would be for a court to reject a measure as disproportionate, without justifying that outcome by amply demonstrating the course of reasoning that led it to that conclusion—including, for instance, by pointing to less infringing alternatives the government could have chosen.
Existing national norms of judicial practice will certainly shape how courts present their proportionality analysis, but proportionality itself may have some impact on judicial culture. France is an interesting case in point. Ruling from France’s high courts tend to be short and syllogistic, presenting their conclusions as the inevitable results of inexorable operations of deductive logic (Lasser 2005, 34). Structurally, the decisions consist of a series of “Whereas” clauses, terminating in an announcement of the court’s judgment. It is not that French courts do not engage in wide-ranging deliberations about the cases that they hear. They do, but these are typically conducted in ancillary documents that do not form a part of their published decisions (Lasser 2005, 47-60). The analysis in the decision itself may be skeletal in the extreme. France’s Constitutional Council, for instance, often concludes in a single sentence that a challenged measure is necessary, adequate, and proportionate (Sanchez 2016, 44).^23
Still, the French administrative courts have shown that they can engage in a form of proportionality formula even within the confines of the syllogistic formula. They can do so by shoehorning the case-specific circumstances that guide their evaluation of a challenged measure’s fit into that formula. In an unpublished decision from early 2016, for instance, the Conseil d’Etat reviewed a challenge, on proportionality and other grounds, to a police order ordering the eviction of all those camped on public lands in a
(^23) Decision no. 2012-647 DC, Feb. 28, 2012.
suburb of Paris within 48 hours.^24 The Conseil disposed of the proportionality challenge in a long “Whereas” clause, the longest of the decision by far, that noted the dramatic recent increase in the encampments’ population, uncontroverted police reports noting unsafe and unsanitary conditions in the camps, and the city’s provision of emergency housing for the camp’s residents before concluding that there was no “manifest breach of the conditions of necessity and proportionality.”
Germany makes for an interesting comparison with France. German administrative court decisions can be exercises in sustained justification, with detailed consideration given to the relevant law and facts before the court. Accordingly, it is not surprising to find fairly in-depth proportionality analyses in German administrative caselaw.^25 But notably, the courts do not engage in detailed analysis in all cases where the pass on the proportionality of a challenged measure. In circumstances where proportionality is not one of the major issues or the case, or the question is not a close one, German courts can also dispense with proportionality arguments quite briskly.^26
There may be some jurisdictions in which a conclusion that a measure is proportionate is sometimes little more than a naked assertion not fortified by further reasons. Writing about Taiwan, for instance, and specifically with reference to environmental litigation, Chun-Yuan Lin has characterized proportionality as a “meaninglessly mentioned principle.”^27
(^24) CE, no. 390441, Jan. 7, 2016. (^25) See, for instance, Bundesverwaltungsgericht, 8 C 13.09, Nov. 11, 2010. (^26) See, for instance, Bundesverwaltungsgericht, 6 C 10.09, Apr. 15, 2009. (^27) See Lin (2013, 13).
only, whereas in others, proportionality is recognized as a constitutional principle or general principle of law. But even in systems where proportionality in principle applies across the board, in practice it does not dominate administrative litigation, since other normative controls over administrative power are also in place. Regardless of the formal status of proportionality principle, there are some “usual suspects”: legal contexts in which proportionality frequently turns up, wherever else it might appear. These include the review of administrative penalties, and administrative actions that implicate rights or other sensitive individual interests. It makes sense that these would be areas of law where the use of proportionality is prominent. These are areas in which the stakes of government overreaching are especially palpable, because individuals are directly and adversely affected in salient ways. Under these circumstances, the appeal of a formula for review that blocks inappropriately far-reaching measures is intuitive and powerful.
The use of proportionality has expanded outward over time, both across legal systems, and within legal systems. There are reasons that favor proportionality’s spread, but also factors that may check the breadth of its adoption to a greater or lesser degree in different legal systems. There are both strategic and normative logics to proportionality’s spread.^28 For judges, proportionality review offers a useful and flexible set of tools for managing difficult dispute-resolution environments. The proportionality framework offers a court an opportunity to acknowledge the validity of the competing interests on either side of a dispute and to justify its own decision with reference to the particular circumstances of the case. And proportionality is subject to a kind of hydraulic normative logic. Once courts declare that some administrative uses of discretion should be reviewed
(^28) For a more extensive discussion, see Stone Sweet and Mathews (2008).
from proportionality, declining to extend proportionality review to other discretionary choices is tantamount to conceding that disproportionate actions are permissible some of the time. Courts may find it difficult to justify that result (although the task may be easier to the extent courts can rely on well-established doctrines curtailing the scope of review).
At the same time, national differences of several kinds stand in the way of anything like a convergence with respect to the scope of proportionality’s application. Administrative law doctrines that are already in place will shape how proportionality is received in a legal system. More broadly still, structural features in administrative law systems determine what kinds of administrative decisions are in principle subject to judicial review, and may exclude important classes of decisions.^29
What is more, both formal and functional differences in the scope of judicial review and the role of courts vis-à-vis the administration can condition how extensively proportionality is used. Systems with strong norms against substituting judgment may be especially resistant to the use of anything like proportionality to review policy-sensitive judgments thought to lie within the administration’s expertise. And courts that lack meaningful independence may be in a poor position to review the proportionality of high- stakes, politically salient choices. It would be surprising, for instance, to find courts in China exerting meaningful proportionality review over eminent domain decisions, as we see in France, given the limited independence that Chinese courts enjoy as a practical matter.^30
(^29) For instance, Article 13(2) of China’s draft Administrative Litigation Law makes challenges to regulations inadmissible. (^30) While eminent domain decisions in China are subject to review for rationality as well as for legality, as a practical matter this review is very limited. Thanks to Yuejun He of
