The irrelevance of politics for arbitrary and capricious review.

• Jurisdiction: United States
• Date: 01 December 2012
• Author: Seidenfeld, Mark

This Article contends that, properly understood, judicial review of agency action under the reasoned decision-making standard precludes a court from considering political influence, but nonetheless allows an agency to consider it. It does so by identifying two fundamental attributes of such review, as courts have traditionally applied it, that have eluded scholarly focus and perhaps recognition altogether. The first attribute is that agency reasons, which are what courts review, are justifications rather than motivations for agency action. From this attribute, it follows that the irrelevance of politics for judicial review does not preclude politics as a legitimate agency consideration. The second attribute is that reasoned decision-making requires an agency to make manifest the tradeoffs generated by its action. This attribute facilitates political accountability by reducing barriers to public awareness of these tradeoffs. This Article argues that permitting an agency to credit politics as a justification for a rule would interfere with political accountability by relieving the agency of its obligation to reveal the full implications of its rulemaking. Thus, this Article promises to profoundly affect conceptions of the reasoned decision-making standard of review in general and how politics fits within it.

INTRODUCTION

What role should political influence--that is agency consideration of its belief about the preferences of the president or Congress--play in judicial review of agency action? (1) Over the past two decades, several scholars have explicitly called for courts to consider legitimate political influence on agency decision-making as a basis for affirming agency rules under arbitrary and capricious review. (2) In 1990, Christopher Edley raised the subject in his book on judicial control of bureaucracy. (3) Edley criticized the distinction between politics, science, and fairness in agency decision-making and suggested that, at least at the margins, the inability to draw lines between these influences on agency action counsels that courts should acknowledge and condone political influence when subjecting such action to hard-look review. (4) In 2001, Elena Kagan suggested that the president had asserted significant control over rules promulgated by agencies, and that such control imbues rules with legitimacy because of the political accountability of the president. (5) Kagan also suggested that this increased accountability warrants courts crediting political influence when they engage in review of rules. (6) Most recently, Kathryn Watts has renewed the suggestion that courts allow agencies to invoke political influence to bolster their justification of rules upon hard-look review. (7)

In calling for consideration of politics in judicial review, these scholars all rely on a perception that hard-look review is antagonistic to agency consideration of politics. As Edley phrased it, "[t]he dominant theme of case law ... is clearly that hard-look review provides a means of cabining political discretion and permitting judges, if so disposed, to impose arbitrarily stringent standards of comprehensive rationality." (8) Some recent Supreme Court opinions have reinforced this perception by seemingly rejecting political influence as a legitimate basis for agency action. For example, the majority in Massachusetts v. EPA rejected President Bush's political agenda as sufficient to justify the EPA's refusal to regulate greenhouse gas emissions. (9) Similarly, Justice Breyer's dissent in Fox Television suggested that the election of a new president is not an appropriate basis for the FCC to change its policy about what constitutes indecent broadcasting. (10) But dicta in Justice Scalia's plurality opinion in Fox Television, which rejected Breyer's position, (11) cuts the other way. Thus, the question of the role of politics as a justification for agency action has incited the particular interest of at least three current Supreme Court justices as well as several well regarded academics. (12) What makes this Article significant is that it argues that those on both sides in the debate have misinformed understandings of the foundation and role of hard-look review--understandings that greatly limit the potential benefits such review might impart. Hence, this Article has the potential to reshape the meaning and operation of hard-look review and, more particularly, to influence the Supreme Court's perception of the propriety of courts considering political influence in applying such review.

Watts has helped clarify precisely what is at issue in this debate. of the works calling for judicial consideration of political influence within the hard-look paradigm, Watts's article provides the most focused and pragmatic exposition of the case for factoring politics into judicial review. Unlike prior advocates of this position, Watts suggests operational criteria for when and how judges should factor politics into review--that is, the precise nature of the kind of influence the courts should credit and the situations in which they should credit such influence. (13) In addition, she identifies precise salutary effects that she believes such a change in hard-look review would have on agency rule-making. (14) Thus, Watts's article provides a particularly meaningful foil against which to lay out my understanding of judicial review and the likely impact that allowing courts to consider politics would have on agency rulemaking.

For that reason, it was convenient to style this Article as a response to Watts's article. But, as I hope the Article makes clear, it is actually a broader exposition about the role of politics in agency decision-making and, more particularly, the proper place of political influence as a factor in hard-look review of rulemaking. (15) In the broadest sense, this Article argues that those who have addressed the role of politics have confounded the question of the legitimacy of politics in rulemaking with that of the legitimacy of judicial consideration of politics in reviewing rulemaking. As I explain in Part I, Watts and her fellow critics of hard-look review are correct that courts have not credited citations to political influence in evaluating whether agency rulemaking meets the hard-look standard. But, contrary to the inference Watts draws, this does not reflect any hostility within the standard to such influence. In fact, the understanding of the administrative state that prompted courts to develop hard-look review accepts that agency decisions are political and properly so. In my view, however, the hard-look doctrine is a mechanism to ensure that agencies do not hide value judgments behind simple incantations that their actions are justified by political influence. Therefore, although politics may be a legitimate motivation for agency regulation, it should be irrelevant to judicial review of that regulation.

In Part II of this Article, I show how Watts's characterization of hardlook review's attitude toward politically motivated decisions leads her to conclude that judicial crediting of political explanations for agency rules results in outcomes superior to those under the current reasoned decision-making standard. It then explains why I believe this conclusion is erroneous. I continue in Part III of this Article to consider whether, given the insulation of courts from political accountability and their limited institutional capacity to evaluate political outcomes, it is appropriate to rely on them to distinguish legitimate from improper political influence.

1. Understanding Reasoned Decision-making Review

1. Watts's Understanding of the Reasoned Decision-Making Requirement

   According to Professor Watts, the current application of arbitrary and capricious review is problematic because courts do not consider agency appeals to political influence as legitimate reasons for regulation. (16) She contends that review premised on this rejection of politics is at odds with the presidential control model that currently is in vogue in administrative law. (17) That model posits that presidential control of agencies is justified by electoral accountability. (18) Therefore, agency rules should reflect influence by the president on purely political grounds, at least where the president publicly grounds his support for these rules in "public values," and where doing so does not lead the agency to act inconsistently with its authorizing statute. (19) For Watts, like Edley and Kagan, the fact that such political influence of rulemaking is proper translates into her belief that agencies should be able to use that influence to bolster decisions that courts otherwise might find insufficiently reasoned. (20)

   Watts supports this belief by suggesting that the reasoned decision-making standard that courts currently apply, while grounded in the "interest group model" of the administrative state, reflects vestiges of the "expertise model," which was used to justify the New Deal but has been criticized and not generally accepted since the adoption of the Administrative Procedure Act (APA) just after World War II. (21) She goes on to note that increasingly the president is dictating agency policy. (22) The president is a political actor, not a technocrat, and his preferences reflect politics, not technocratic expertise. In some cases, Congress, along with or instead of the president, exerts great influence on agency rulemaking. (23) Therefore, Watts contends that it is best for the agency to report the actual motivation for its decision, which in many instances is that the change was requested by the president or adopted in response to congressional pressure. (24) Because the president and Congress are elected, they will...