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Indian Children's Program, Administrative Procedure Act, Agency discretion, Unreviewability, Disparate impact


Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump-sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary.

This Article looks behind the superficial, technocratic simplicity of the presumption of unreviewability through a novel, person-sensitive study of its origins and effects driven by the subordination question—“who pays?” This study reveals that the presumption is founded on a historical fiction—a “tradition” of refusing review that the Supreme Court invented thirty years ago (in Lincoln v. Vigil) in order to reverse district court and appellate rulings invalidating the termination of the Indian Children’s Program by President Reagan’s Department of Health & Human Services. The Vigil presumption is far from self-executing. Instead lower courts, following the Supreme Court’s lead, have in practice targeted the Vigil presumption toward Native Americans. Thirty-seven percent of cases to which courts apply the presumption are brought by Tribes. Fifteen percent are brought by prisoners. No other group faces the presumption with any regularity. Moreover, because the presumption is limited to discretionary spending programs, it is inherently targeted toward those who rely on such programs rather than the market or mandatory entitlements, that is, the nation’s most vulnerable.

In light of the Article’s findings about the origins and disparate impacts of the Vigil presumption, the presumption should be considered an Indian Law doctrine, not just an administrative law doctrine—and it should be abandoned. The policy justifications that the Supreme Court offered alongside its fictitious historical claim in inventing it (which scholars have previously cited approvingly) do not actually turn out to be persuasive on their own terms, let alone in the face of the lopsided practical operation revealed by the Article. Scholars may debate how much protection administrative law should provide to people injured by agency action, but there is no good reason that we should have one administrative law for most everyone and another, second-class administrative law for Tribes, prisoners, and others who rely on discretionary federal spending programs.

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Washington University Law Review