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Depoliticizing Judicial Review of Agency Rulemaking


Scott A. Keller


Yetter Coleman LLP

March 23, 2009

Washington Law Review, Vol. 84, p. 419, 2009

Abstract:     
Administrative law doctrines for reviewing agency rulemaking, such as the Supreme Court’s dicta in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. and the D.C. Circuit’s hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on the basis that they disagree with the policy decisions of a presidential administration.

This Article argues that the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc. implicitly eliminated State Farm’s dicta and the D.C. Circuit’s hard look
doctrine. In place of these paternalistic doctrines, courts should establish a doctrine for reviewing agency rulemaking that examines only the agency’s purpose in regulating and the means used by the agency to achieve that purpose—instead of giving courts leeway to impose additional procedures on agencies and to nitpick rulemaking records. Constitutional doctrines for reviewing legislation already focus on a government actor’s purpose and means, so these doctrines should also be used for reviewing agency rules, which are legislative-like pronouncements that are binding with the force of law.

Ultimately, this Article proposes that courts should review agency rulemaking under the standard for reviewing legislation known as “rational basis with bite.” Rational basis with bite would require the agency, at the time it promulgates a rule, to articulate its actual statutory purpose in promulgating the rule and explain how the rule is rationally related to that purpose. Not only would rational basis with bite significantly limit the ability of judges to invalidate agency rules based on policy disagreements, but the standard fits well with the Supreme Court’s precedents on APA arbitrary and capricious review.

Number of Pages in PDF File: 71

Keywords: Administrative Law, Rulemaking, Agency, State Farm, Arbitrary, Capricious, Depoliticizing, Hard Look, Overton Park, APA, Ossification, FCC, Fox, Rational Basis With Bite, Scrutiny, D.C. Circuit

JEL Classification: K23

Accepted Paper Series


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Date posted: March 29, 2009 ; Last revised: October 14, 2009

Suggested Citation

Keller, Scott A., Depoliticizing Judicial Review of Agency Rulemaking (March 23, 2009). Washington Law Review, Vol. 84, p. 419, 2009. Available at SSRN: http://ssrn.com/abstract=1367244

Contact Information

Scott A. Keller (Contact Author)
Yetter Coleman LLP ( email )
221 W 6th St.
Suite 750
Austin, TX 78701
United States
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