Administrative Rationality Review

104 Va. L. Rev. (2018 Forthcoming)

60 Pages Posted: 18 Jul 2018

Date Written: June 26, 2018


Under the familiar rational basis test, a court must uphold a challenged statute if there is any conceivable basis to support it. Courts routinely accept speculative — even farfetched — justifications that few would describe as “rational” in a colloquial sense. Modern rational basis review typically is justified as a necessary concession to the nature of the legislative process. The puzzle is why courts apply this same deferential standard when reviewing constitutional challenges to administrative agency actions. Neither courts nor scholars have explained why administrative agencies — which share few of the features of democratically accountable legislative bodies — should enjoy the same degree of judicial deference to their decisions. In many states and localities, this permissive rationality standard is all that constrains the decisions that agencies make. This Article argues that there is in fact no justification for the prevailing approach and that as a constitutional matter courts have an obligation to scrutinize agency regulations more closely than they do legislative enactments. Courts must ensure that agencies at all levels of government act on the basis of actual reasons, and there is at least a plausible connection between regulatory means and ends.

Keywords: administrative law, constitutional law, rational basis review

Suggested Citation

Ponomarenko, Maria, Administrative Rationality Review (June 26, 2018). 104 Va. L. Rev. (2018 Forthcoming). Available at SSRN:

Maria Ponomarenko (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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