Most judicial authority to review agency actions comes from statutes. Constitutional and common law also provide for review. In the federal system, most review authority is derived from statute. The common law system of review has largely been replaced by legislative declarations concerning the availability of review. Congress enjoys great discretion when legislating in this area: It may establish when the review must be sought, where it must be sought, and it may set limits on the judiciary’s authority in reviewing agency action.

Generally, when a statute provides for review, no other method may be used to establish a court’s authority to hear the case, with the possible exception of cases in which a constitutional issue is raised. If a statute does not provide for review, nonstatutory review may be available. There is a strong preference in the courts for review. Similarly, there is a strong presumption that Congress does not intend to preclude review when a statute is silent on the subject.

At common law, courts could issue various writs to agencies and agency officials that were not specifically provided for by statute, such as certiorari, mandamus, habeas corpus, and prohibition. The authority of federal courts to issue such writs continues today because Congress has provided for certain of them by statute. However, in the federal system, certiorari is no longer available. It has been replaced by the injunction and declaratory judgment. Similarly, the writ of prohibition is a dead letter in federal administrative law.

Review is different in every state. Although many, if not all, states have some statutory form of review, some continue to recognize all the common law writs. Other states do not recognize the writs as an alternative to statutory review.