In Second-class Administrative Law, Professor Matthew Lawrence makes a provocative challenge to the presumption of unreviewability announced in Lincoln v. Vigil, 508 U.S. 182 (1993), which applies to agencies’ decisions about how to allocate lump-sum appropriations. Challenging both the opinion’s premise and its potential theoretical bases, Lawrence offers an important rethinking of the doctrine. What really stands out about this piece, however, is that Lawrence melds traditional methods of administrative law scholarship with a human-focused dimension, exploring how it impacts people as applied. And he demonstrates why this seemingly neutral rule of administrative law has a disparate impact on historically marginalized groups, especially Tribes and imprisoned people. In so doing, he answers a broader call to bring a critical lens to administrative law and offers a model for how it can be done.
Some readers might wonder if the Vigil slice of administrative law is worth the fuss. But as Lawrence notes, about a fifth of the federal budget is theoretically shielded by Vigil as non-defense, discretionary spending. (P. 1067.) And, as exemplified by the Fall 2025 shutdown impacting SNAP benefits,1 it bears noting that many of the kinds of programs funded this way are those that offer safety nets to those with the least power and most vulnerability. Indeed, Lawrence’s treatment is rich with the separation-of-powers and human-impact dimensions that are of extraordinary importance in the United States today.
As a refresher: the Vigil plaintiffs were Tribal members who had relied on the Indian Children’s Program for medical care; the Executive Branch abruptly ended the program with no notice in 1985, apparently taking even the Bureau of Indian Affairs by surprise. The Supreme Court held that the plaintiffs’ claim was presumptively unreviewable under § 701(a)(2) of the APA, not on a textual basis of “no law to apply” but instead on the reasoning that this was a longstanding legal “tradition.” Yet as Lawrence points out, the Court cited no authority for that proposition, and without grappling with authority to the contrary. Lawrence takes the reader on a deep dive into the Vigil opinion, its oral arguments and briefs, and the legal commentary that might have been relevant to the matter at the time. As he later explains, there is plenty to work with should courts or policymakers conclude that it’s time for Vigil’s demise.
To highlight the human implications of the doctrine, Lawrence considers its impact from a subordination perspective (honoring the work of feminist and critical race scholars), evaluating both documented decisions applying Vigil and the scope of agency decisions that are insulated from review. The documented decisions offer a stark perspective (Lawrence takes care to acknowledge the limits of this part of his investigation): almost two-thirds of all the cases applying Vigil to defeat review were brought by Tribes or prisoners, and no industry plaintiffs were barred when Vigil came up in their cases. (P. 1065.) Zooming out to the agency level, Lawrence’s review of the scope of insulated agency spending decisions paints a more comprehensive picture. Programs funded through lump-sum appropriations include: “the Indian Health Service, housing assistance for people in poverty, veterans’ health benefits, CDC and NIH public health grants, USDA farm subsidies, the Bureau of Prisons, US AID, WIC,” and several others, including funding to schools to support disabled and low-income students. (P. 1068.)
Readers following the Trump Administration’s activities will recognize many of the categories in this list, and indeed, Lawrence situates his separation-of-powers analysis within the legal scholarship (for example, here and here) that has identified appropriations and spending as an important policy tool. As he describes, at the margins, Vigil diminishes Congress’s power to control policy through the power of the purse, and may seem to countenance illegality or corruption. Lawrence admits that because these appropriations are annual, Congress may, in fact, have a firmer hand in control, with less accompanying need for judicial review. Still, he argues that Vigil is overly broad. In application, judges have considerable discretion whether to apply Vigil, and the doctrine suffers from a lack of clarity on what kinds of appropriations and spending are within its reach, and whether other sources of law might provide the basis for review (for example, the agency’s authorizing statute). These attributes further present a risk of disparate impact.
Ultimately, Lawrence’s thoughtful article reminds us of two things: In the urgency of contemporary times, even administrative law’s old(ish) presumptions bear careful reconsideration; and the human dimension of administrative law deserves fulsome treatment.
- Note: USDA has been funded through September 2026, so SNAP continues through the partial shutdown happening as I write on Jan. 31, 2026.
