The Irrelevance of Politics for Arbitrary and Capricious Review

This article presents a nuanced understanding of reasoned decisionmaking review to evaluate the propriety of judicial consideration of political influence on agencies when reviewing agency rulemaking. It contends that, properly understood, judicial review of agency action under the reasoned decisionmaking standard precludes a court from considering such influence, but nonetheless allows an agency to consider such influence in rulemaking. 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 in rulemaking. The second attribute is that reasoned decisionmaking requires an agency to make manifest the trade-offs generated by its rulemaking. This attribute facilitates political accountability by reducing barriers to public awareness of these trade-offs. The article argues that permitting an agency to credit politics as a justification for a rule would interfere with this facilitation by relieving the agency of its obligation to reveal the full implications of its rulemaking. The implications of this article are thus profound both for the reasoned decisionmaking standard of review in general and for how politics fits within it.