Honesty in Reason: How Department of Commerce v. New York Began to Tackle the Problem of Regulatory Dishonesty

• Author: Hannah M. Flesch
• Position: Georgetown University Law Center, J.D. 2021; Wellesley College, B.A. 2016
• Pages: 659-684

NOTES

Honesty in Reason: How Department of Commerce v.

New York Began to Tackle the Problem of

Regulatory Dishonesty

HANNAH M. FLESCH*

TABLE OF CONTENTS

INTRODUCTION 660

I. A BRIEF OVERVIEW OF DEPARTMENT OF COMMERCE V. NEW YORK . .. . . 661

II. HARD LOOK REVIEW. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 664

A. THE STANDARD OF HARD LOOK REVIEW IN AGENCY

DECISIONMAKING 664

B. HARD LOOK REVIEW IN DEPARTMENT OF COMMERCE: A TALE OF TWO

HOLDINGS 668

C. POLITICS AND PRETEXT .. .. .. .. .. .. .. .. .. .. .. . .. .. .. .. .. .. . 669

1. Administrative Law’s Tenuous Relationship with

Politics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670

2. Administrative Law’s New Relationship with Pretext. .. 672

3. Applying Pretextual Analysis to Administrative Law

After Department of Commerce674

III. POST-DEPARTMENT OF COMMERCE: HOW TO USE THE COURT’S HOLDING

ON PRETEXT IN FUTURE CASES AND ISSUES 677

A. AVOIDING A FINDING OF PRETEXT AS AN ADMINISTRATIVE AGENCY . 678

1. Congruence: A Rational Connection Is an Honest

Connection . . .. . . . .. . . . . .. . . . .. . . . . .. . . . .. . . . . 678

2. Outsourcing Expertise679

3. Multiple-Stated Reasons . . . .. . . . . .. . . . .. . . . .. . . . . 680

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* Georgetown University Law Center, J.D. 2021; Wellesley College, B.A. 2016. © 2022, Hannah M.

Flesch. Thank you to Professor William Buzbee for his inspiration and guidance during this Note’s

writing process. Many thanks as well to all editors, including Darren James, Patrick O’Neil, and

Nicholas Yacoubian, of The Georgetown Law Journal for their tireless work alongside their academic

endeavors.

659

4. Consequences of a Pretextual Finding by a Reviewing

Court 681

B. HOW LITIGANTS MAY RAISE CLAIMS OF PRETEXT IN AGENCY

DECISIONMAKING 682

1. Moving to Complete the Administrative Record on the

Basis of Honest Decisionmaking . . . . . . . . . .. . . . . .. . . 683

2. Other Avenues for Finding Additional Agency

Documentation . . .. . . . .. . . . . .. . . . .. . . . .. . . . .. . . 683

3. Looking for Prejudged Uniformity684

CONCLUSION. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 684

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INTRODUCTION

Imagine that you are a small business owner who has just received word that

the Department of Labor proposed a new rule increasing the current minimum

wage at all businesses from $7.25 per hour to $20 per hour. Understandably con-

cerned about what this means for your business, you read the proposed rule, look-

ing for information about why the Department of Labor made this drastic change.

You find that the Department of Labor has primarily cited concerns over rising

costs of living and the increasing wealth gap in the United States. Though you are

sympathetic to these policy reasons, you disagree with this top-down approach.

You contact other small business owners in your community, all of whom are

similarly concerned. Together, you draft a response and submit a comment to the

Department of Labor about why this new minimum wage standard, in your opin-

ion, will not address the rising costs of living or the wealth gap and will, in the

end, hurt small businesses.

Several months later, the Department of Labor finalizes its minimum wage

standard to $20 per hour. Litigation ensues, and through this process, it is discov-

ered that the Department of Labor increased the minimum wage due to pressure

from Silicon Valley. In fact, Silicon Valley executives met with appointees in the

Department of Labor months before the proposed rule. You find out that these

executives pushed for a high minimum wage in order to squeeze out small busi-

nesses like yours.

The scenario described above may sound implausible, but it is not. In

Department of Commerce v. New York, the Supreme Court heard a challenge to a

decision by the Commerce Department to put a citizenship question on the 2020

decennial census.

1

Like a decision to increase the minimum wage, the decision to

ask for one’s citizenship on the census was not the central problem. The problem

was that the Commerce Department misrepresented the reasons for adding the

citizenship question. But did this misrepresentation violate the Administrative

1. 139 S. Ct. 2551, 2561 (2019).

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