Depoliticizing Judicial Review of Agency Rulemaking
Keller, Scott A., Washington Law Review
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.1 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.2 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.
The Obama Administration's largest impact on federal policy may very well come from institutions that are not usually on the public's radar screen: administrative agencies. Federal agencies create a substantial majority of the country's new laws,3 and "[t]here is going to be a huge amount of action in the regulatory arena after years of deregulation under President Bush."4 Weeks into office, President Obama directed the Environmental Protection Agency (EPA) to reconsider two Bush Administration decisions: (1) preventing states from setting auto emission and fuel efficiency standards that are more stringent than federal standards,5 and (2) adopting less stringent controls on mercury pollution from power plants.6 Similarly, as soon as President Obama took office, the Food and Drug Administration (FDA) approved "the world's first test in people of a therapy derived from human embryonic stem cells" - a clinical trial that had been rejected by the Bush Administration.7 Moreover, the Obama Administration's Interior Department reversed the Bush Administration's plan to allow offshore oil drilling.8 Some also believe that the Federal Communications Commission (FCC) under the Obama Administration could reinstitute the controversial "fairness doctrine."9
The Bush Administration anticipated that the Obama Administration would overhaul the country's administrative regulations, so in the final months of President Bush's tenure, his Administration took a series of administrative actions to deregulate various consumer and environmental industries.10 Most would assume that the administrative actions of an outgoing president could be overturned by an incoming presidential administration that wants to reverse course on federal regulatory policy. …