Proposing a Place for Politics in Arbitrary and Capricious Review
84 Pages Posted: 6 Mar 2009 Last revised: 13 Nov 2011
Date Written: March 4, 2009
Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action. This Article argues that this picture should change.
Specifically, this Article argues for expanding current conceptions of arbitrary and capricious review beyond a singular technocratic focus so that credit would also be awarded to certain political influences that an agency transparently discloses and relies upon in its rulemaking record. Such an expansion of arbitrary and capricious review could yield many benefits. First, it would help to bring arbitrary and capricious review into harmony with other major doctrines, such as Chevron deference, that seem to embrace the “political control” model of agency decisionmaking. Second, it could help to create a more effective separation between science and politics. Third, giving politics a place could give courts another reason to defer to agencies, thereby softening the “ossification” charge frequently levied against arbitrary and capricious review. Finally, such a change would facilitate greater political accountability and monitoring.
Ultimately, whether an expanded conception of arbitrary and capricious review can be attained will rest in the hands of courts and agencies. Agencies would need to begin openly acknowledging political influences, and courts would need to become comfortable acknowledging that an agency’s reliance on political influences involving policy considerations and value judgments, such as a President’s desire to push a specific environmental issue to the top of the EPA’s priority list, might help legitimize an agency’s decision. This Article suggests that courts and agencies might be most comfortable first making this move in narrow contexts, such as decisions to deny discretionary rulemaking petitions.
Keywords: administrative law, courts, judges, judicial review, politics, agencies, accountability
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