The Irrelevance of Politics for Arbitrary and Capricious Review
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 trade-offs generated by its action. This attribute facilitates political accountability by reducing barriers to public awareness of these trade-offs. 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.
The Irrelevance of Politics for Arbitrary and Capricious Review,
90 Wash. U. L. Rev. 141
Available at: https://openscholarship.wustl.edu/law_lawreview/vol90/iss1/3