Reasoned Explanation and Political Accountability in the Roberts Court.

• Author: Eidelson, Benjamin

FEATURE CONTENTS INTRODUCTION 1751 1. ACCOUNTABILITY-FORCING IN ACTION 17S8 A. Accountability-Forcing in Regents 1761 1. DACA's Rescission and the Avoidance of Responsibility 1761 a. Round One: The Buck-Passing Explanation 1761 b. Round Two: The Post Hoc Explanation 1764 2. Accountability-Forcing and Post Hoc Explanations 1768 3. Accountability-Forcing and Buck-Passing Explanations 1773 B. Accountability-Forcing in Department of Commerce: Pretext 1785 II. WHAT NEXT? 1794 A. Reviewability 1795 1. "No Law to Apply" 1795 2. General Enforcement Policies 1798 B. Remand Without Vacatur 1801 C. Arguments in the Alternative 1803 III. EVALUATING GROUNDS FOR DOUBT 1804 A. Administrative Common Law 1805 B. Political Questions and Agency Burdens 1809 C. Efficacy and the Removal Comparison 1815 D. Half Measures and Whitewashing 1822 CONCLUSION 1825 INTRODUCTION

According to a familiar picture, the President and his administration are held accountable in two parallel ways: legally and politically. Legal accountability conies largely from judicial review under the Administrative Procedure Act (APA), which authorizes courts to set aside agency actions that are "arbitrary" or otherwise unlawful. (1) Political accountability operates through a much more diffuse set of mechanisms--the risk of the President's ouster at the next election, the sting of public criticism, the loss of political capital, the burdens of congressional oversight, and more. (2) Unlike arbitrariness review, these political checks impose no defined "test." But they ensure that agency actions are publicly acceptable, not just legally permissible, or at least that the decisionmakers bear consequences if their decisions are not.

Courts engaged in arbitrariness review under the APA have always been aware of the parallel channel of political accountability, but they have not traditionally viewed it as their concern. Under the classic conception, the court's job is to ensure that an agency's decision was "based on a consideration of the relevant factors" and did not involve a "clear error of judgment." (3) Such review protects the public from bureaucratic blunders, legal violations, and (more controversially) political interference with agency expertise. (4) No doubt the mechanisms of political accountability loom in the background of this process, just as judicial review looms in the background of politics. (5) And if the APA requires an agency to facilitate or entertain public input on the front end of its decisionmaking process, courts will enforce those procedural requirements. (6) But when it comes to reviewing the agency's ultimate policy choice, under this classic conception, a court need not concern itself with any parallel, political process that the same agency action might (or might not) also have set in motion.

I argue here that the Supreme Court's recent decisions have begun to turn away from this "parallel lines" understanding of political accountability and arbitrariness review and toward a markedly different one. Under the emerging model, ensuring robust political accountability is itself a central concern of arbitrariness review, alongside (or perhaps ahead of) ensuring the substantive soundness or political neutrality of agency decisions. Accordingly, courts can and should use arbitrariness review to force an administration into explaining itself in ways that facilitate, rather than frustrate, the natural political repercussions of its choices. Borrowing a page from "political process theory" in constitutional law, courts applying this approach will give agencies relatively broad substantive deference--deference based, in part, on the executive branch's greater political accountability--but they will guard against efforts to clog and manipulate the very channels of political accountability themselves. (7)

My argument rests on two cases, both decided in the Court's past two Terms, that suggest a new embrace of this "accountability-forcing" conception of arbitrariness review. (8) The first and more central is Department of Homeland

Security v. Regents of the University of California, in which the Court invalidated the Trump Administration's rescission of the Deferred Action for Childhood Arrivals (DACA) policy. (9) Read closely and in context, I will argue, Regents reflects an overriding concern to ensure that the Trump Administration could not rescind DACA without paying the appropriate political price. That is why the Court stressed that the administration had rested its decision on a mistaken claim of legal compulsion, rather than an avowed exercise of discretion. And that is why, when the administration did offer grounds for rescinding DACA based on immigration policy, the Court refused to entertain them. Unless the administration was forced to start over, the Court worried, "the public" would be denied the opportunity to "respond fully and in a timely manner to [the administration's] exercise of authority." (10) While the Court sought to ground that concern in "foundational principle[s] of administrative law," (11) its explicit use of arbitrariness review as a tool for enforcing political accountability is nearly unprecedented.

And the Court's express appeal to that value is "nearly" unprecedented--rather than completely so--only because it had pointed in the same direction in Department of Commerce v. New York the year before. (12) There the Court rebuffed the Secretary of Commerce's attempt to add a citizenship question to the 2020 census, reasoning that his only avowed rationale for that choice (better enforcement of the Voting Rights Act) was pretextual. An obvious problem with pretextual justifications is that they can frustrate judicial review. But the Court framed the problem more broadly than that: "The reasoned explanation requirement of administrative law," it said, "is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public" (13) By disabling the agency from relying on a pretext for purposes of judicial review, therefore, the Court was also protecting the distinct, political channel of accountability that runs from the agency to the public at large. Again, no prior case had construed the office of the "reasoned explanation requirement"--an implied corollary of a court's obligation to review for arbitrariness--to extend so far.

I have referred to "the Court" throughout the last two paragraphs, but of course the pivotal figure in this turn is actually its Chief Justice, John Roberts. Roberts authored the 5-4 opinions in both cases; he was the only member of the majority to rely solely on his pretext theory in Department of Commerce; and he was the least obvious member of the majority in Regents as well. (14) Many have cast Roberts's aisle-crossing votes in these high-stakes cases as essentially political--as marks of his "institutionalism," meaning roughly his concern to protect the public reputation and perceived neutrality of the Court. (15) It is certainly possible that Roberts's approach to these cases was motivated by a desire to skirt political controversy and burnish the reputation of the institution he leads. But taking his opinions in Regents and Department of Commerce on their own terms, they seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. They reflect a vision of courts as political ombudsmen--one might even say umpires--who will rarely second-guess the executive branch's policy judgments themselves, but who will police the reason-giving process to ensure that the public has a fair opportunity to evaluate and respond to those same decisions. (16)

And one need not be naive about Roberts's possible motivations in these cases to think that this vision, taken at face value, matters. For one thing, it now has a significant foothold in the law. (17) Whatever brought them about, the Court's opinions in Regents and Department of Commerce will require lower courts to reckon with the role of political accountability in arbitrariness review in new ways. By the same token, they also lend new weight to arguments of the same kind in future cases before the Court itself. And even assuming a good bit of motivated reasoning on Roberts's part, it is always revealing how a person, once motivated to reach some result, goes about convincing himself or herself of its soundness. Here, Roberts zeroed in on political accountability as a central concern of arbitrariness review. With a majority of the Court keen to rein in perceived excesses of the administrative state, and Roberts continuing to wield the assignment power (albeit not necessarily the swing vote), there is good reason to think that the infrastructure he built could be put to work again sooner rather than later. (18)

Placing this development in its larger jurisprudential context, moreover, suggests that it is not a deus ex machina but a logical next step. As many have observed, the arc of prevailing understandings of judicial review and the administrative state is defined by a tension between politics and expertise. (19) In stylized form, the story starts with the emergence of "hard-look review," exemplified by Motor Vehicles Association v. State Farm, (20) as a demand that agencies bring a kind of neutral expertise to bear on even politically charged problems. (21) In a later era epitomized by Chevron deference, (22) the Court shifted toward understanding political responsiveness as a virtue in agency decisionmaking, one with which courts ought not interfere. (23) Then, a little over a decade ago, Massachusetts v. EPA (24) suggested that the pendulum had swung back toward the older, "expertise-forcing" vision of judicial review. (25)

But it is now clear that, thanks to developments within and beyond the Court, this throwback to technocracy was short-lived--and that some vision more tolerant of political...