Proposing a place for politics in arbitrary and capricious review.

• Author: Watts, Kathryn A.

ARTICLE CONTENTS INTRODUCTION A FOCUS ON EXPERT, NOT POLITICIZED, AGENCY DECISIONMAKING A. The Judiciary's Search for Expert-Based Decisionmaking B. Agencies' Focus on Technocratic Factors C. Scholars' Acceptance of the Push for Expertise II. THE BENEFITS OF GIVING POLITICS A PLACE A. Bringing Greater Coherence to Administrative Law's Vacillation Between Expertise and Politics B. Creating Better Separation Between Science and Politics C. Softening the "Ossification" Charge D. Enabling Greater Political Accountability III. THE MECHANICS OF GIVING POLITICS A PLACE A. Determining Congress's Intent Regarding Political Factors B. Types of Political Factors That Might Appropriately Be Relied Upon C. Possible Sources of Political Influences 1. Presidential Directives, Executive Orders, and Other More Informal Communications 2. Communications from Other Executive Officials 3. Congressional Oversight D. Types of Rulemaldng Proceedings in Which Political Factors Might Appropriately Play a Role 1. Denials of Rulemaking Petitions 2. Withdrawals of Proposed Rules 3. Rule Rescissions 4. Promulgation of Final Rules IV. OBJECTIONS TO GIVING POLITICS A PLACE A. The First-Mover Dilemma B. Balancing The Carrot With A Stick C. Judicial Dislike of Agency Politicization D. Separation of Powers Concerns E. Difficulty of Judicial Review CONCLUSION INTRODUCTION

At its core, arbitrary and capricious review, or "hard look" review as it is sometimes called, enables courts to ensure that administrative agencies justify their decisions with adequate reasons? Although existing case law does not always make it easy to separate reasons that "adequately" support an agency decision from those that are "inadequate," (2) the Supreme Court's famous 1983 decision in Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Auto Insurance Co. (3) has been read to clarify one important aspect of arbitrary and capricious review: agencies should explain their decisions in technocratic, statutory, or scientifically driven terms, not political terms. (4)

In State Farm, the Court reviewed a decision made by the new Reagan Administration's National Highway Traffic Safety Administration (NHTSA) to rescind a rule previously promulgated under the Carter Administration that required certain cars to be equipped with either air bags or automatic seat belts. (5) In a partial dissent, then-Justice Rehnquist openly noted that the NHTSA's changed views seemed "to be related to the election of a new President," which Rehnquist viewed as "a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations." (6) The majority, however, skipped over the political context of the decision, (7) and it instead focused on the technocratic justifications that the NHTSA offered to support its rule rescission. (8) The Court's singular focus in State Farm on technocratic justifications, accordingly, has been widely read to represent the triumph of expertise to the exclusion of politics in administrative decisionmaking. (9)

Ever since the Court handed down State Farm, agencies, courts, and scholars alike generally seem to have accepted the view that influences coming from one political branch or another cannot be allowed to explain administrative decisionmaking, even if such factors are influencing agency decisionmaking. Take agencies to begin with. Agencies today generally try to meet their reason-giving duties under State Farm by couching their decisions in technocratic, statutory, or scientific language, either failing to disclose or affirmatively hiding political factors that enter into the mix. A good example of this can be found by looking at the Food and Drug Administration's (FDA) attempt in the 1990s to regulate teen smoking. Even though President Clinton played a very active role in directing the rulemaking (going so far as to personally announce the final rule in a Rose Garden ceremony), the FDA's statement of basis and purpose accompanying the final rule relied upon statutory, scientific, and expert justifications--barely even hinting at President Clinton's role in the rulemaking. (10)

Judicial review of agency action is similarly technocratic in focus. Courts applying arbitrary and capricious review today routinely search agency decisions to ensure they represent expert-driven decisionmaking. (11) Decisions from the D.C. Circuit, for example, borrow from State Farm's language and repeatedly flame arbitrary and capricious review in expert-driven terms, asking whether the agency "offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." (12)

In terms of scholarly attention to the issue, a few scholars have given some attention to how arbitrary and capricious review might take politics into account. (13) For the most part, however, the blanket rejection of politics in administrative decisionmaking has been casually accepted as the status quo by courts, agencies, and scholars alike. The result is that insufficient attention has been given to exploring whether political factors ought to be allowed to validly explain agency rulemaking decisions as a normative matter and what concrete alterations might be made to existing arbitrary and capricious review doctrine to embrace a proper, even if limited, place for politics.

This Article aims to give some much needed attention to the topic. (14) Specifically, this Article seeks to identify those rulemaking proceedings in which agencies acting as "mini legislatures" might most appropriately rely upon political influences coming from the President, other members of the executive branch, or Congress to justify agency decisions for purposes of arbitrary and capricious review. (15) The heart of the argument set forth here is that what count as "valid" reasons under arbitrary and capricious review should be expanded to include certain political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed in the agency's rulemaking record. This means that the term "political influences," as used in this Article, refers to influences aimed at agencies coming from executive and legislative actors, including the President, members of Congress, and those who speak for and act for the President (such as the President's Chief of Staff and the head of the Office of Management and Budget).

Acceptance of the argument set forth here would not mean that any and all political influences would be allowed to legitimize agency action. Rather, some political influences should be read to justify agency action whereas other political influences should be read to corrupt. Although drawing a precise line between permissible and impermissible influences is difficult, legitimate political influences can roughly be thought of as those influences that seek to further policy considerations or public values, whereas illegitimate political influences can be thought of as those that seek to implement raw politics or partisan politics unconnected in any way to the statutory scheme being implemented. This would mean, for example, that the Department of Health and Human Services (HHS) would be allowed to rely upon a public statement issued by President Obama articulating his pro-choice agenda and his pro-choice policy initiatives if HHS chose to rescind a Bush-era rule that forbids medical facilities that receive federal money from discriminating against health care providers who refuse, on religious grounds, to perform abortions. (16) Conversely, it would mean that HHS could not legitimately justify a decision to rescind the same Bush-era "provider conscience" rule by simply saying: "President Obama directed us to rescind the rule in order to reward various pro-choice organizations for their endorsement of him during his campaign."

Three recent developments highlight the timeliness and significance of this Article's exploration of the proper role of politics. First, we are still in the early stages of a new presidential administration as President Obama settles into the White House and seeks to reprioritize agency goals. (17) Shortly after winning the election in November 2008, then-President-elect Obama made clear that he had asked his transition team to begin reviewing the federal agencies and considering changes to be made. (18) In particular, President Obama has made it clear that he will order federal departments and agencies to act in ways that will promote energy efficiency and proenvironmental goals, (19) and he has indicated his desire to implement a shift away from deregulation toward more proactive government regulation, largely as a response to the recent economic crisis. (20) These and other impending changes that will be implemented under the new administration point out the need to better understand whether and when it is appropriate for agencies to justify certain decisions based on political influences, such as campaign promises or presidential priorities. (21)

Second, the Supreme Court recently issued two divided decisions that highlight the need to better understand whether politics should be given an accepted role in agency decisionmaking. In one decision issued in 2009, FCC v. Fox Television Stations, Inc., the Court reviewed the FCC's change in its policy involving the broadcasting of fleeting expletives. (22) In upholding the FCC's new policy that fleeting expletives can be actionable, Justice Scalia's opinion seemed comfortable with the fact that the FCC's policy change was "spurred by significant political pressure from Congress." (23) In fact, Justice Scalia's opinion, which rejects the notion that agency change must be subjected to more searching judicial review, arguably makes it easier for agencies to change their policies due to...