Cite as: 535 U. S. 743 (2002)
Breyer, J., dissenting
terpret existing statutes as permitting in such actions whatever form of judicial review the Constitution demands. Cf. Crowell v. Benson, 285 U. S., at 45-47. Statutory language that authorizes review of whether an order was "properly made and duly issued," 46 U. S. C. App. § 1713(c), does not forbid review that the Constitution requires. But even were I to make the heroic assumption (which I do not believe) that this case implicates a reviewing court's statutory inability to apply constitutionally requisite standards of judicial review, I should still conclude that the Constitution permits the agency to consider the complaint here before us. The "review standards" problem concerns the later enforceability of the agency decision, and the Court must consider any such problem later in the context of a court order granting or denying review. Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (" 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case' ").
V
The Court cannot justify today's decision in terms of its practical consequences. The decision, while permitting an agency to bring enforcement actions against States, forbids it to use agency adjudication in order to help decide whether to do so. Consequently the agency must rely more heavily upon its own informal staff investigations in order to decide whether a citizen's complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654-656 (1990); cf. also Shapiro, 78 Harv. L. Rev., at 921 ("One of the most distinctive aspects of the administrative process is the flexibility it affords in the selection of methods for policy formulation"). And at least one of these consequences, the forced growth of unnecessary federal bureaucracy, undermines the very constitutional objec-
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