The Tethered President: Consistency and Contingency in Administrative Law

Abstract

The law governing administrative agency policy change and checking unjustified inconsistency is rooted in a web of intertwined doctrine. The Supreme Court’s 2016 opinion in Encino Motorcars modestly recast that doctrine to emphasize that the agency pursuing a change cannot leave “unexplained inconsistency” or neglect to address past relevant “underlying facts,” but reaffirmed its central stable precepts. Nonetheless, radically different views about broad, unaccountable, and rapid agency power to make policy changes have been articulated by current Supreme Court Justice Neil Gorsuch, when on the appellate bench, and agencies pursuing deregulatory policy shifts under the leadership of President Donald J. Trump. This article analyzes the mutually reinforcing strands of this body of law, shows the errors underpinning these policy change power claims, and explains how the “contingencies” underlying an initial policy action must always be engaged by a later advocate of policy change. Statutory language constrains while usually leaving room for change, but facts and past agency reasoning unavoidably must be engaged to surmount the sturdy core requirements of consistency doctrine. Recent efforts to overcome or recast consistency doctrine seek greater room for politics and presidential influence and downplay agency obligations to provide rational explanation and engage with regulatory contingencies. Due to the balanced interests protected by consistency doctrine, this article argues that such a doctrinal reworking is unlikely and would be unwise.

Keywords: administrative law, consistency, policy change