The irrelevance of politics for arbitrary and capricious review.

• Author: Seidenfeld, Mark
• Position: II. The Normative Case Against Politics in Arbitrary and Capricious Review through Conclusion, with footnotes, p. 170-197 - Response to Kathryn A. Watts, Yale Law Journal, vol. 119, p. 2, 2009

2. THE NORMATIVE CASE AGAINST POLITICS IN ARBITRARY AND CAPRICIOUS REVIEW

   In part, Professor Watts's characterization of reasoned decision-making as antagonistic to political influence on rulemaking leads her to claim that allowing agencies to rely explicitly on politics to justify their regulatory decisions would change arbitrary and capricious review for the better. (149) She describes the benefits of her proposal as making agency decisions more honest and keeping courts in check. (150) Most significantly, she argues that allowing agencies to invoke politics will reveal the true basis of many agency decisions, which will make agencies' decisions more accountable. (151) Additionally, she contends that allowing agencies to rely on political preferences of the administration will relieve agencies from pressure to manipulate science to justify their decisions, thereby encouraging agencies to be more honest about the science behind their decisions. (152) As a third point, Watts concludes that her proposal would decrease the ossification of rulemaking because agencies will not have to spend time and resources on factual and scientific determinations that do not influence their decisions. (153) A proper understanding of the role of hard-look review in the administrative process, however, suggests that Watts's normative assessment on all three points is problematic.

   1. Transparency and Political Accountability for Regulations

      Essentially, Watts's proposal would allow agencies to substitute the invocation of political preferences for at least some development of facts and reasoning about impacts of agency regulations. Although Watts never explicitly addresses how political factors should be balanced alongside technical ones, (154) she indicates that invocation of politics, in some instances, should allow an agency rule to pass hard-look review that would not pass as courts currently apply that standard. (155) Also, as she would incorporate politics into judicial review, politics would never disqualify a regulation that otherwise would meet the hard-look standard. (156) By implication, political considerations would substitute for the missing analysis that would render a decision arbitrary and capricious under the current invocation of the standard.

      The idea behind Watts's proposal is that the electorate will evaluate whether it agrees with the political decision. That public evaluation will constrain the president from encouraging the agency to act in a manner that is not politically supported. By her account, hard-look review hinders the openness of political influence on agency regulation. (157) As I argued above, however, hard-look review does not condemn political influence. It merely recognizes that presidential and congressional influences often do not reflect political support for the precise trade-offs that an agency regulation entails. Contrary to Watts's contentions, allowing an agency to fall back on general recitation of presidential support for a rule permits the agency to hide the details of the value judgments it makes. Generally, political support for a policy is not all-or-nothing. There may be political support for a policy similar to the one the agency adopts, yet that support may depend on how far the agency takes that policy--that is, on the tradeoffs that stakeholders will have to make if the agency acts as the president desires. Under my conception of hard-look review, the agency has to develop a record that will indicate and support its best assessment of the impact of its policy in terms of benefits bestowed and costs engendered.

      The case of Rust v. Sullivan (158) provides an illuminating example of how Watts's proposal allows an agency to escape from having to reveal the true nature of its value judgments. Rust involved the Secretary of Health and Human Services (HHS) in the Reagan Administration changing an interpretation of the meaning of a provision in Title X of the Public Health Service Act, which prohibits federal money made available under that Title from "be[ing] used in programs where abortion is a method of family planning." (159) The new interpretation prohibited recipients of Title X funds--including doctors--from counseling women about abortion. (160) The case generated a heated debate among the justices about the First Amendment in the context of government-funded activity, (161) but I want to focus on the administrative law question of whether the agency rule was consistent with the Act. (162)

      The Court applied Chevron and held at step one that the statute was ambiguous about the precise meaning of programs where abortion is a method of family planning. (163) The Court explicitly concluded that the statute was silent about whether recipients of Title X funds can engage in counseling about abortion, but that the agency's interpretation was clearly within bounds allowed by the statute. (164) With respect to step two of Chevron, comments in the rulemaking indicated that even though the rule applied only to abortion as family planning, the agency interpretation was problematic because it would prohibit doctors in family planning clinics from informing women for whom childbirth might pose a significant risk to their lives and health about abortion as an option. (165) Comments also expressed concern that the new interpretation might keep women who ultimately choose abortion from doing so in a timely manner, thereby exposing them to later term procedures that pose greater risks to their health. (166) The comments noted that many women who use family planning clinics do not have personal physicians who would otherwise inform them of the abortion option. (167) The agency never assessed the effect of its rule on risks to the health of Title X clients, (168) but merely opined that there is an adequate basis for the rule because it is reasonable under all circumstances. (169) The Court held that the agency had adequately justified its changed interpretation as necessary to prevent abuses and the appearance that funds were being used to support abortion. (170) Most relevant to this article, the agency explained that the new interpretation was "supported by a shift in attitude against the 'elimination of unborn children by abortion.'" (171)

      Essentially in Rust, under step two of Chevron, the Court did precisely what Watts advocates under the arbitrary and capricious standard of review. And, at first blush, this seems like the quintessential case that justifies the invocation of the political values of the administration. Abortion is a contentious political issue that has played a significant role in presidential campaigns. (172) President Reagan announced the decision and made his support of it clear, implying that the White House was essentially the driving force behind the rule change. (173) Reagan's announcement came at a time when Vice President George H.W. Bush was facing a challenge from the Right for the Republican nomination in the next presidential election. (174) Presumably, those in favor of restricting access to abortions would see the Secretary's interpretation as a reason to vote for Bush in the next election, and those opposed would use it as a reason to vote against him.

      But, for many people the issue is not simply being for or against abortion. Whether the abortion is necessary to protect the life and health of the pregnant woman affect many people's idea of whether abortion is justified in particular instances. (175) By invoking the president's political preference, however, HHS was able to avoid having to indicate the effect of its changed interpretation on pregnant women whose health might be endangered by childbirth, many of whom did not have personal physicians to inform them of the related risks. (176) I do not doubt that the Reagan administration could have justified its ultimate interpretation of Title X. But, it is not certain that the Secretary of HHS would have adopted that interpretation or that the interpretation would have had the same political impact if the Secretary had to explain that for whatever number of fetuses HHS expected the policy to keep from being aborted, it would also likely result in the death of a certain number of women.

      A second problem with the accountability defense of Watts's proposal is its extreme optimism about the capability of the political market to register preferences about regulatory outcomes. Watts argues that her proposal would bring the arbitrary and capricious review in line with the widely accepted model of political control as a justification for the administrative state. (177) The implications of that model for judicial doctrine, however, are more complicated than Watts's analysis suggests. In particular, her argument that hard-look review is inconsistent with the political control model assumes that such control will sufficiently constrain agency regulation so that it reflects the values of the polity. (178)

      The political control model focuses on Congress and the president as providing accountability for agency decisions. (179) Outside the formal mechanisms of legislation and Senate votes on presidential appointments, congressional influence operates primarily through the committee system. (180) There are serious problems both with ascribing the influence wielded in committees to the legislature as a whole (181) and with the ability of elections within individual congressional districts to hold committee members accountable to the general national interest. (182) The president, however, is more promising as a source of public-interest-focused influence. After all, the president answers to the entire electorate, so he has an incentive to regulate only when the regulation benefits the nation as a whole. (183) Unfortunately, the system of electing the president does not operate so efficiently that one can trust the president to influence agencies to act in the public interest on most, let alone all...