Proposing a place for politics in arbitrary and capricious review

Yale Law Journal

Volumn 119, Issue 1, 2009, Pages 2-85

  Watts, Kathryn A ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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[No Author keywords available]

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EID: 71849096317     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (538)

1. The Administrative Procedure Act (APA) requires that agencies act in a manner that passes "arbitrary and capricious" review. See 5 U.S.C. §706(2)(A) (2000). The term "hard look" review developed in the D.C. Circuit as a judicial gloss on the meaning of the APA's arbitrary and capricious test.
2. See Matthew Warren, Active Judging: Judicial Philosophy and the Development of the Hard Look Doctrine in the D.C. Circuit, 90 GEO. L. J. 2599 (2002);
3. see also infra notes 51-74 and accompanying text (discussing the development of hard look review). Even though hard look review calls for a more searching and less deferential type of judicial review than section 706 (2) (A) may have originally contemplated,
4. see infra notes 44-52 and accompanying text, this Article uses the terms hard look review and arbitrary and capricious review interchangeably to refer to the reason-giving requirement that agencies now face under the modern reading of section 706(2)(A). In other words, this Article does not attempt to attack the existence of hard look review per se, but rather suggests a modification of hard look review.
5. As Professor Richard Pierce has aptly explained, "adequacy is in the eye of the beholder," which makes it quite difficult for agencies to predict whether or not a court will deem an agency's explanation to be sufficient. RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW 84-85 (2008).
6. U.S. 29 (1983).
7. See CHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY 183 (1990) (noting that State Farm "entails a conception of politics as distinguishable from and in opposition to the required rationality of agency decision making");
8. JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 226 (1990) ("[T] he submerged yet powerful message in the Supreme Court's decision in State Farm [was] that the political directions of a particular administration are inadequate to justify regulatory policy.");
9. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2246, 2381 (2001) (describing how State Farm demanded that the agency "justify its decision in neutral, expertise-laden terms to the fullest extent possible");
10. Jerry L. Mashaw, The Story of Motor Vehicle Manufacturers Association of the U.S. v. State Farm Mutual Automobile Insurance Co.: Law, Science and Politics in the Administrative State, in ADMINISTRATIVE LAW STORIES 335, 335 (Peter L. Strauss ed., 2006) (noting that in State Farm, "politics and ideology were required to take a backseat to administrative law's demand for reasoned policy judgment");
11. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 307 n.191 (2006) (noting that State Farm now serves as "common contemporary shorthand for the requirement that agencies rationalize their decisions in terms of statutory criteria, and that a change of administration is not a sufficient basis for agency action").
12. State Farm, 463 U.S. at 32-38.
13. Id. at 59 (Rehnquist, J., concurring in part and dissenting in part).
14. A likely explanation for this is that even the NHTSA itself did not openly seek to explain its decision based on political considerations.
15. See State Farm, 463 U.S. at 46-57;
16. see also Michael Herz, The Rehnquist Court and Administrative Law, 99 NW. U. L. REV. 297, 310 (2004) ("Justice White did not contradict Justice Rehnquist's description of the political setting or conclude that it was outweighed by other factors. Rather, he ignored it altogether, implicitly deeming the politics of the rescission simply irrelevant.").
17. See supra note 4;
18. see also infra Section I. A. (discussing the State Farm decision).
19. See Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965, 965-67 (1997) (describing Clinton's active involvement in the FDA's tobacco rulemaking);
20. see also infra notes 94-98 and accompanying text (discussing the FDA's rulemaking proceeding).
21. See Kagan, supra note 4, at 2270 (noting that courts "requirf[e] that agency action bear the indicia of essentially apolitical, 'expert' process and judgment");
22. see also infra Section I.A. (describing the judicial search for technocratic decisionmaking by agencies).
23. Wedgewood Vill. Pharmacy v. DEA, 509 F.3d 541, 549 (D.C. Cir. 2007) (emphasis added) (internal quotations omitted);
24. see also Morall v. DEA, 412 F.3d 165, 177 (D.C. Cir. 2005) (drawing on State Farm).
25. See EDLEY, supra note 4, at 9, 59, 66, 170-94 (1990) (arguing that present judicial doctrine demonstrates an ineffectual ambivalence toward politics);
26. ARTIN SHAPIRO, WHO GUARDS THE GUARDIANS: JUDICIAL CONTROL OF A DMINISTRATION 171 (1988) (arguing that judges incorrectly treat agencies engaged in rulemaking as if the agencies are "bodies engaged in a true science of synoptic public administration" and that judges instead should treat agencies as "subordinate legislatures making a good deal of law within broad congressional constraints and in the face of considerable uncertainty about facts and diverse and changing political sentiments");
27. Kagan, supra note 4, at 2381-82;
28. see also infra Section I. C. (describing scholarly attention given to the place of politics in agency decisionmaking).
29. This Article analyzes only the appropriate place of politics when an agency acts through rulemaking and thus does not deal with adjudication. There are two reasons for focusing exclusively on rulemaking. The first is practical: limiting the reach of this Article to the role of politics in rulemaking helps to make the scope and breadth of the topic more manageable. The second reason is more substantive: agencies play very different roles when engaging in rulemaking vs. adjudication. In the rulemaking context, agencies act as mini legislatures, whereas agencies act as mini courts in the adjudicatory context. This distinction may well demand a different role for politics in rulemaking vs. adjudication. Cf. Sierra Club v. Castle, 657 F.2d 298, 400 (D.C. Cir. 1981) (distinguishing between agency adjudication, which resembles judicial action, and informal rulemaking of a policymaking sort, which does not implicate the same notions of due process). I, however, leave the answer to that question to another day-focusing only on rulemaking in this Article.
30. This Article focuses on arbitrary and capricious review and thus does not directly propose changes to other judicial review doctrines, such as Step Two of Chevron. In this sense, this Article proceeds under the understanding that arbitrary and capricious review and Step Two of Chevron deference are distinct in what they require-meaning that Chevron "reasonableness," which is used to test the fit of an agency's interpretation with a statute, does not equate to State Farm "reason giving," which is used to assess the rationality of an agency's reasoning process.
31. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967,1001 n.4 (2005) (differentiating between Chevron Step Two and arbitrary and capricious analysis in noting that inconsistency in an agency's position "bears on whether the Commission has given a reasoned explanation for its current position, not on whether its interpretation is consistent with the statute" under Chevron). There are, however, some scholars (as well as judicial opinions) that support the view that Step Two of Chevron merges with arbitrary and capricious review.
32. See, e.g., Nat'l Ass'n of Regulatory Util. Comm'rs v. ICC, 41 F.3d 721, 726 (D.C. Cir. 1994);
33. Gen. Am. Transp. Corp. v. ICC, 872 F.2d 1048, 1053 (D.C. Cir. 1989);
34. Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253 (1997);
35. aurence H. Silberman, Chevron -The Intersection of Law & Policy, 58 GEO. WASH. L. REV. 821, 827-28 (1990). If this view equating Chevron Step Two and arbitrary and capricious review were to be accepted, then the proposals set forth here would have implications for Step Two of Chevron as well.
36. See generally Laura Meckler, Bush-Era Abortion Rules Face Possible Reversal, WALL ST. J., Dec. 17, 2008, at A5 (describing the so-called "provider conscience" rule);
37. Robert Pear, Obama Will Ease Restraints on States' Health Insurance Programs fir Children, N.Y. TIMES, Jan. 20, 2009, at A25 (reporting that Obama has said that "he objects to a last-minute Bush administration rule that grants sweeping new protections to health workers who refuse to help perform abortions, dispense contraceptives or provide other care because of their 'religious beliefs or moral convictions'").
38. See generally Sam Kalen, Changing Administrations and Environmental Guidance Documents, 35 ECOLOGY L. Q. 657, 659 (2008) ("With each new election cycle, the ability of the executive branch to influence policy on the myriad of issues -such as climate change-will surface.... [T]he modern administrative law state assumes that federal agencies will be imbued with the political philosophy of any new president and that they enjoy sufficient flexibility to develop and change policy.").
39. See Meckler, supra note 16;
40. Peter Nicholas & Christi Parsons, Obama Plans a Swift Start, L.A. TIMES, Jan. 20, 2009, at A1;
41. Editorial, Undoing the Damage Done, N.Y. TIMES, Jan. 25, 2009, at WK9;
42. Jeff Zeleny, Obama RevieuAng Bush's Use of Executive Powers, N.Y. TIMES, NOV. 10, 2008, at A19.
43. John M. Broder & Peter Baker, Obama's Order Likely To Tighten Auto Standards, N.Y. TIMES, Jan. 26, 2009, at A1.
44. See Kevin G. Hall & Margaret Talev, Obama to Financial Sector: More Regulation Is Coming, NEWS & OBSERVER, Dec. 10, 2008, at 1A;
45. cf. Jackie Calmes, Both Sides of the Aisle See More Regulation, and Not Just of Banks, N.Y. TIMES, Oct. 14, 2008, at A15 (reporting that the "proregulation climate will probably spill over into other sectors" outside of just the financial industries and that "the political fallout of this renewed respect for government regulation is evidenced in the current election campaigns").
46. President Obama made many campaign promises, a number of which involve administrative regulations and/or administrative agencies. See generally Robert Farley & Angie Drobnic Holan, 510 Campaign Promises and We're Watching, ST. PETERSBURG TIMES, Jan. 15, 2009, at Ai (noting that Obama's campaign promises call for "more regulation, new agencies and at least 11 new groups that would have 'corps' in their name").
47. 129 S. Ct. 1800 (2009).
48. Id. at 1815-16. Justice Scalia was joined in this Part of the opinion only by Chief Justice Roberts and Justices Thomas and Alito -not by Justice Kennedy.
49. Id. at 1810.
50. Id. at 1829 (Breyer, J., dissenting).
51. 549 U.S. 497, 511-12(2007).
52. See Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 54 (2007).
53. See, e.g., Linda Greenhouse, Justices Say E.P.A. Has Power To Act on Harmful Gases, N.Y. TIMES, Apr. 3, 2007, at A1;
54. Michael Hawthorne, EPA Must Regulate Greenhouse Gases, CHI. TRIB., Apr. 3, 2007, at 3.
55. 2 Seen as 'Foot-Dragging' by Critics, CHRISTIAN SCI. MONITOR, Apr. 3, 2008, at 17 (reporting that EPA staffers concluded that the emissions were a "major threat to water supplies, crops, wildlife, and other aspects of public welfare" and that this finding was "forwarded to the White House for review in December");
56. Christopher Lee, Scientists Report Political Interference, WASH. POST, Apr. 24, 2008, at A19 ("[A] congressional committee recently reported that EPA staff members had determined in December that greenhouse gas emissions endanger public health....").
57. See Juliet Eilperin, White House Tried To Silence EPA Proposal on Car Emissions, WASH. POST, June 26, 2008, at A2;
58. Editorial, More Flimflam on Warming, N.Y. TIMES, Mar. 29, 2008, at A16.
59. Felicity Barringer, White House Refused To Open E-mail on Pollutants, N.Y. TIMES, June 25, 2008, at A15.
60. Id.
61. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44, 354 (proposed July 30, 2008) (to be codified at 40 C.F.R. ch. 1).
62. See Juliet Eilperin, EPA Says Emissions Are Threat to Public, WASH. POST, Apr. 18, 2009, at A1.
63. See Juliet Eilperin, Putting Some Heat on Bush: Scientist Inspires Anger, Awe for Challenges on Global Warming, WASH. POST, Jan. 19, 2005, at A17;
64. Jeremy Symons, Op-Ed., How Bush and Co. Obscure the Science, WASH. POST, July 13, 2003, at B4;
65. see also infra notes 175-179 and accompanying text (describing charges levied against the Bush Administration accusing it of distorting science to serve political goals).
66. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
67. See Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (E) (2006).
68. See id. § 706(2)(B)-(C).
69. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29 (1983).
70. Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (instructing reviewing courts to "hold unlawful... agency action . . . found to be . .. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
71. See infra Section I. A.
72. See PIERCE, supra note 2, at 82;
73. see also infra Section I. B. (discussing the judiciary's demand for expert-based decisionmaking).
74. See infra Section I. C.
75. PIERCE, supra note 2, at 81.
76. See Pac. States Box & Basket Co. v. White, 296 U.S. 176 (1935).
77. See GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 558 (4th ed. 2007);
78. Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 532 (1985).
79. Pac. States Box & Basket Co., 296 U.S. at 185;
80. see also Nat'l Broad. Co. v. United States, 319 U.S. 190, 224 (1943) ("The Regulations are assailed as 'arbitrary and capricious.' If this contention means that the Regulations are unwise, that they are not likely to succeed in accomplishing what the Commission intended, we can say only that the appellants have selected the wrong forum for such a plea.").
81. PIERCE, supra note 2, at 81.
82. Administrative Procedure Act, 5 U.S.C. § 553(c) (2006).
83. LAWSON, supra note 46, at 558.
84. Warren, supra note 1, at 2602 (noting that in 1960s and 1970s, "trust in agency experts evaporated" and "academics and public officials began to believe that many agencies had been captured by the industries and private interests that they regulated");
85. see also Thomas W. Merrill, Capture Theory and the Courts: 1967-1983, 72 CHI.-KENT L. REV. 1039 (1997) (describing capture theory);
86. Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437, 441 & n.17 (2003) (same).
87. Warren, supra note 1, at 2602.
88. See PIERCE, supra note 2, at 82 (describing how "[t]his new approach to judicial application of the arbitrary and capricious test to rules adopted through use of informal rulemaking was referred to as the 'hard look' doctrine");
89. see also Garland, supra note 46, at 525 (discussing the birth and the development of hard look doctrine);
90. Warren, supra note 1, at 2602-03 (describing development of hard look review).
91. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970) (Leventhal, J.).
92. See, e.g., United States v. Nova Scotia Food Prods., 568 F.2d 240, 251 (2d Cir. 1977) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)) ("Though a reviewing court will not match submission against counter-submission to decide whether the agency was correct in its conclusion on scientific matters (unless that conclusion is arbitrary), it will consider whether the agency has taken account of all 'relevant factors and whether there has been a clear error of judgment.'");
93. Nat'l Ass'n of Food Chains v. ICC, 535 F.2d 1308, 1314 (D.C. Cir. 1976) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970)) ("This court repeatedly has emphasized, however, that an agency must demonstrate that it has 'really taken a "hard look" at the salient problems, and has . . . genuinely engaged in reasoned decision-making."');
94. Indus. Union Dep't v. Hodgson, 499 F.2d 467, 475 (D.C. Cir. 1974) ("What we are entitled to at all events is a careful identification by the Secretary, when his proposed standards are challenged, of the reasons why he chooses to follow one course rather than another.").
95. Garland, supra note 46, at 526-27.
96. See PIERCE, supra note 2, at 83.
97. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29 (1983).
98. Id.
99. Id. at 43 n.9.
100. Id. at 43 (emphasis added) (internal citations omitted).
101. Id. at 46-48 (noting that the ineffectiveness of one safety mechanism "does not cast doubt on the need for a passive restraint standard or upon the efficacy of airbag technology");
102. see also id. at 46 ("There was no suggestion in the long rulemaking process. .. that if only one of these options were feasible, no passive restraint standard should be promulgated.").
103. Id. at 53-55.
104. Id. at 58 (Rehnquist, J., concurring in part and dissenting in part).
105. Id.
106. Id. at 59. The lower court in State Farm also noted the political context of the NHTSA's decision.
107. See State Farm Mut. Auto. Ins. v. Dep't of Transp., 680 F.2d 206, 213 (D.C. Cir. 1982) (noting that the NHTSA's proposal of the possible rescission was "announced by the White House Press Office on April 6, 1981, as part of a larger package of economic recovery measures");
108. see also id. at 240 n.44 (noting that "notice of rulemaking to rescind [the] standard was based at least in part on economic problems of the automobile industry, and was announced by [the] White House in Actions to Help the U.S. Auto Industry").
109. State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part).
110. See id. at 46-57 (majority opinion);
111. see also Herz, supra note 8, at 310 ("Justice White did not contradict Justice Rehnquist's description of the political setting or conclude that it was outweighed by other factors. Rather, he ignored it altogether, implicitly deeming the politics of the rescission simply irrelevant.").
112. Compare EDLEY, supra note 4, at 63-66 (arguing that State Farm misidentified the decisionmaking "paradigm as science rather than politics"), with Stephen F. Williams, The Roots of Deference, 100 YALE L.J. 1103, 1107-08 (1991) (reviewing EDLEY, supra note 4) (arguing that the Court in State Farm did not identify science instead of politics as the decision-making paradigm but rather that the agency and the litigants did).
113. See EDLEY, supra note 4, at 183;
114. MASHAW & HARFST, supra note 4, at 226;
115. Herz, supra note 8, at 310-11;
116. Kagan, supra note 4, at 2380-81;
117. Stack, supra note 4, at 307 n.191.
118. See Kagan, supra note 4, at 2270 (noting that courts require "that agency action bear the indicia of essentially apolitical, 'expert' process and judgment");
119. see also supra note 4 and accompanying text (discussing courts' demand for expert-based decisionmaking).
120. See LAWSON, supra note 46, at 244.
121. Wedgewood Vill. Pharmacy v. DEA, 509 F.3d 541, 549 (D.C. Cir. 2007) (emphasis added) (internal quotations omitted);
122. see also Morall v. DEA, 412 F.3d 165, 177 (D.C. Cir. 2005) ("[W]e must satisfy ourselves that the agency examine[d] the relevant data and articulate [d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.") (internal citations omitted).
123. See Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1193 (9th Cir. 2008) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983));
124. CBS Corp. v. FCC, 535 F.3d 167, 174 (3d Cir. 2008) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)), judgment vacated by FCC v. CBS Corp., 129 S. Ct. 2176 (2009).
125. 361 F.3d 249 (3d Cir. 2004).
126. Portions of a dissenting opinion written by Judge Kozinski in 2006 also suggest that Judge Kozinski might be inclined, at least in the inaction context, to allow agencies to decide not to adopt regulations for political reasons, such as a change in administrations. See Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 850 n.6 (9th Cir. 2006) (Kozinski, J., dissenting), vacated, 490 F.3d 725 (9th Cir. 2007). However, rather than suggesting that such political factors be embraced by arbitrary and capricious review, Judge Kozinski suggests that the presence of political, nonlegal justifications for agency inaction are a reason to apply a rule of nonreviewability to agency inaction.
127. See id. at 850.
128. Chao, 361 F.3d at 255.
129. Id. at 256 (Pollak, J., concurring).
130. Id. at 256 & n.1.
131. Id.
132. 549 U.S. 497 (2007). In Massachusetts, the Court did not apply the APA but rather applied a specific provision of the Clean Air Act (CAA) that closely tracks section 706(2) (A) of the APA. See 42 U.S.C. § 7607(d)(9) (2000) (calling for reversal of action "found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
133. Massachusetts, 549 U.S. at 513.
134. Id. at 533.
135. See Freeman & Vermeule, supra note 27, at 54 (arguing that Massachusetts could be considered "State Farm for a new generation") (citation omitted).
136. Kathryn A. Watts & Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming, 102 Nw. U. L. REV. 1029, 1043 (2008).
137. Freeman & Vermeule, supra note 27, at 54, 64-65.
138. 129 S. Ct. 1800 (2009).
139. Id. at 1816. Justice Scalia was joined in this Part of the opinion only by Chief Justice Roberts and Justices Thomas and Alito-not by Justice Kennedy.
140. Id. at 1810 ("We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review.").
141. Id.
142. Id. at 1810-11. This part of Justice Scalia's opinion was joined by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito. Another portion of Justice Scalia's opinion, which was not joined by Justice Kennedy, implies even more strongly that political explanations may be enough to justify agency action: "If the FCC is indeed an agent of Congress, it would seem an adequate explanation of its change of position that Congress made clear its wishes for stricter enforcement."
143. Id. at 1816 (internal citations omitted).
144. Id. at 1829 (Breyer, J., dissenting).
145. See generally Strauss, supra note 10, at 966-67 (describing agencies' failure to disclose political influences in certain rulemaking proceedings).
146. See The President's News Conference, II PUB. PAPERS 1237 (Aug. 10,1995) (announcing that "by executive authority, I will restrict sharply the advertising, promotion, distribution, and marketing of cigarettes to teenagers").
147. See Remarks Announcing the Final Rule To Protect Youth from Tobacco, II PUB. PAPERS 1332, 1333 (Aug. 23, 1996) ("A year ago this month, we launched a comprehensive strategy to kick tobacco out of the lives of our children. We proposed strong restrictions on advertising, marketing, and sales of cigarettes to children. In the year that followed, the FDA received a torrent of comments from the public, more than 700,000, by far the largest outpouring of public response in the FDA's history. The FDA has heard from doctors, scientists, tobacco companies, and tens of thousands of children. We have carefully considered the evidence.").
148. See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco To Protect Children and Adolescents, 61 Fed. Reg. 44, 396 (Aug. 28, 1996). One brief and fleeting reference to the President's involvement can be found in the FDA's response to a comment raising concern that the FDA's real goal was to achieve an outright ban on tobacco.
149. See id. at 44, 419 (noting that "when the President announced the proposed FDA regulations on August 10, 1995, one reporter asked whether an outright ban would be more logical than a 'regulatory partial step'" and the President replied by stating that he thought "it would be wrong to ban cigarettes outright").
150. Strauss, supra note 10, at 967;
151. see also Kagan, supra note 4, at 2283 ("The final documents, containing new proscriptions on tobacco manufacturers and vendors, a statement of the health-related justifications for those proscriptions, and a lengthy defense of FDA jurisdiction over the issue, nowhere mentioned the President; rules, as a historic matter, very rarely have done so, and this one was no exception.").
152. Strauss, supra note 10, at 967 (emphasis added).
153. Persistent Bioaccumulative Toxic (PBT) Chemicals, 64 Fed. Reg. 58, 666 (Oct. 29, 1999).
154. See EPA Statement of Regulatory and Deregulatory Priorities, 65 Fed. Reg. 73, 453, 73, 460 (Nov. 30, 2000) (noting that the initiative was "announced by the Vice President on EPA's Earth Day 1998 in response to the finding that most commercial chemicals have very little, if any, publicly available toxicity information on which to make sound judgments about potential risks");
155. id. at 73, 458 ("The Chemical Right-to-Know Initiative, which was announced by the Vice President in April 1998, included a directive to the Agency to list and lower the reporting thresholds for persistent, bioaccumulative, toxic (PBT) chemicals reported under section 313 of the Emergency Planning and Community Right-to-Know Act.") (emphasis added).
156. See Persistent Bioaccumulative Toxic (PBT) Chemicals, 64 Fed. Reg. 58, 666;
157. see also EPA Statement of Regulatory and Deregulatory Priorities, 65 Fed. Reg. at 73, 458 ("In accord with the Vice President's directive, EPA has set out the criteria that will be used for determining if a chemical is persistent and bioaccumulative under EPCRA section 313 and has lowered the EPCRA section 313 reporting thresholds.").
158. See Persistent Bioaccumulative Toxic (PBT) Chemicals, 64 Fed. Reg. 58, 666.
159. EPA Statement of Regulatory and Deregulatory Priorities, 65 Fed. Reg. at 73, 458.
160. See Exec. Order No. 12, 866, § 4(b), (c), 58 Fed. Reg. 51, 735, 51, 738 (Oct. 4, 1993) (requiring federal agencies to prepare a "unified regulatory agenda" and "regulatory plan" for submission to OIRA);
161. see also id. § 4(c)(5), 58 Fed. Reg. at 51,739 ("If the Administrator of OIRA believes that a planned regulatory action of an agency may be inconsistent with the President's priorities or the principles set forth in this Executive order or may be in conflict with any policy or action taken or planned by another agency, the Administrator of OIRA shall promptly notify, in writing, the affected agencies, the Advisors, and the Vice President.").
162. Statement on Federal Regulations on Privacy of Medical Records, 37 WEEKLY COMP. PRES. Doc. 611 (Apr. 12, 2001).
163. Id. at 612.
164. Standards for Privacy of Individually Identifiable Health Information, 67 Fed. Reg. 53,182, 53,183 (Aug. 14, 2002).
165. Id. at 53,182.
166. Id.
167. See Average Fuel Economy Standards Passenger Cars and Light Trucks Model Year 2011, 74 Fed. Reg. 14,196 (Mar. 30,2009).
168. Id. at 14,199 (quoting Statement from the U.S. Department of Transportation, available at http://www.dot.gov/affairs/dot0109.htm).
169. See id.;
170. see also John M. Broder & Peter Baker, Obama's Order Likely To Tighten Auto Standards, N.Y. TIMES, Jan. 26, 2009, at Ai.
171. See Steven Mufson & Juliet Eilperin, Obama Issues Orders Toward More Fuel-Efficient Cars, WASH. POST., Jan. 27, 2009, at A4.
172. Average Fuel Economy Standards Passenger Cars and Light Trucks Model Year 2011, 74 Fed. Reg. 14,196.
173. Id.
174. Air Quality, Chemical Substances and Respiratory Protection Standards, 54 Fed. Reg. 35,760 (proposed Aug. 29,1989).
175. Air Quality, Chemical Substances and Respiratory Protection Standards, 67 Fed. Reg. 60,611 (Sept. 26, 2002).
176. Id.
177. See Int'l Union, United Mine Workers v. U.S. Dep't of Labor, 358 F.3d 40, 44 (D.C. Cir. 2004) (concluding, among other things, that the "MSHA's statement that there was a 'change in agency priorities,' without explanation, is not informative in the least").
178. See Air Quality, Chemical Substances and Respiratory Protection Standards, 69 Fed. Reg. 67,681, 67,686 (Nov. 19, 2004) (citing Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, to Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 24, 2001)).
179. Id. (citing UAW v. Chao, 361 F.3d 249,256 (3d Cir. 2004) (Pollak, J., concurring)).
180. Air Quality, Chemical Substances and Respiratory Protection Standards, 69 Fed. Reg. at 67,686.
181. A draft of a work by Professor Nina Mendelson corroborates this conclusion, documenting in detail how "public information about executive supervision" of agency decisions is "surprisingly rare" despite the frequency with which presidents direct "agencies to take action of one sort or another, including the promulgation of rules." Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decisionmaking, 108 MICH. L. REV. (forthcoming 2010) (manuscript at 24, on file with The Yale Law Journal), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1470850.
182. See William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability To Achieve Regulatory Goab Through Informal Rulemaking?, 94 NW. U. L. REV. 393, 395 (2000) (summarizing ossification arguments made by opponents of hard look review);
183. Richard J. Pierce, Jr., The Role of the judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1264 (1989) ("There is mounting evidence that fear of judicial rejection of a policy based on the requirement of reasoned decisionmaking has introduced into the policymaking process delay and resource commitments so great that some agencies have abandoned their efforts at policymaking completely.");
184. Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals To Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483, 483 (1997) ("Articles lamenting the recent 'ossification' of notice and comment rulemaking seem to be the fashion in administrative law scholarship today.").
185. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), the Supreme Court admonished courts for piling additional procedures on top of the minimal procedures for notice-and-comment rulemaking set out in the APA. For examples of scholarly works arguing that the judiciary's formulation of hard look could be read to violate Vermont Yankee's command,
186. see Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV and V? A Response to Beermann and Lawson, 75 GEO. WASH. L. REV. 902, 904-10 (2007);
187. and Paul R. Verkuil, Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II, 55 TUL. L. REV. 418 (1981).
188. For a contrary view, see Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 GEO. WASH. L. REV. 856, 880-82 (2007) (arguing that hard look review is not necessarily inconsistent with Vermont Yankee).
189. Freeman & Vermeide, supra note 27, at 54, 64-67.
190. Id. at 54, 64-65.
191. See STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY, at xxxvii (6th ed. 2006).
192. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE : TOWARD EFFECTIVE RISK REGULATION 55-56, 59-60 (1993).
193. See id. at 60-63 ("[T]he group must have a degree of political insulation to withstand various political pressures, particularly in respect to individual substances, that emanate from the public directly or through Congress and other political sources.").
194. See EDLEY, supra note 4, at 20-21 (describing the negative attributes often associated with politics as including willfulness, subjectivity, tyranny by the majority and nonscientific norms).
195. See id.;
196. Kagan, supra note 4. In addition, three other works diat discuss the general subject of politics in agency decisionmaking are well worth mentioning. The first is a recent piece that makes the argument that "swerves" or "changes" in agency policies due to changes in administration are not necessarily arbitrary or capricious within the meaning of the APA.
197. See Joshua McKarcher, Restoring Reason: Reformulating the Swerve Doctrine of Motor Vehicle Manufacturers v. State Farm, 76 GEO. WASH. L. REV. 1342 (2008).
198. The second is a book published in 1988 by Professor Martin Shapiro, which criticizes courts for treating rulemaking agencies like courts rather than like "subordinate legislatures" and for effectively driving "the very prudential decisions that ought to be out front and subject to public and judicial scrutiny under a technological smoke screen." SHAPIRO, supra note 13, at 156, 171. The third is a forthcoming article by Professor Nina Mendelson.
199. See Mendelson, supra note 123. Professor Mendelson's work presents detailed evidence of agency silence regarding presidential influence on agency rulemaking and argues for greater disclosure by agencies of such presidential influence.
200. Id. Its primary focus is on the need for agency disclosure of political influences rather than on judicial review or the arbitrary and capricious doctrine more specifically. In particular, Professor Mendelson argues that instead of focusing primarily on judicial review (as this Article does), we should call for a more transparent role for political influences by imposing procedural requirements on agencies that require them to disclose executive supervision.
201. See id. at 3, 39-42.
202. EDLEY, supra note 4, at 190.
203. Id. at 192.
204. Kagan, supra note 4, at 2246, 2248.
205. Id. at 2380-83.
206. The "Chevron" deference doctrine is named after Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), in which the Court set up its now famous twostep doctrine governing deference to reasonable agency constructions of ambiguous statutory provisions.
207. See 1 RICHARD J.PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 1.7, at 25 (4th ed. 2002) ("The explosive growth of administrative agencies during the New Deal took place in an environment of reverence for technocratic solutions and judicial distrust of political institutions.");
208. see also SHAPIRO, supra note 13, at 60-62 ("The Progressive creed was experts in the service of the public and government as essentially a set of technical services provided to the citizenry.");
209. Paul R. Verkuil, Understanding the "Public Interest" Justification for Government Actions, 39 ACTA JURIDICA HUNGARICA 141, 141 (1998) ("The words 'public interest' are probably invoked more than any other to explain and justify government action, whether in delegations of legislative authority to agencies or in explanations by agency officials to the public").
210. Joseph B. Eastman, The Place of the Independent Commbsion, 12 CONST. REV. 95, 101 (1928).
211. In the 1930s, James Landis served as a member of the FTC, a member of the SEC and chair of the SEC. See Carl McFarland, Landis' Report: The Voice of One Crying in the Wilderness, 47 VA. L. REV. 373, 374 n.2 (1961).
212. JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 154-55 (1938).
213. See SHAPIRO, supra note 13, at 62-63 (describing how the "New Deal ideal of government by experts that flourished in the 1930s and 1940s began to tarnish badly in the fifties");
214. see also Lisa Schultz Bressman, Procedures as Politics in Adminstrative Law, 107 COLUM. L. REV. 1749, 1761 (2007) (noting that by the 1970s, "[e]xperience had bred a certain amount of skepticism about the expertise model").
215. See SHAPIRO, supra note 13, at 62-66 (noting that the capture theory described the phenomenon of how agencies that regulate particular industries over time "tend ... to see the world more and more the way the industry sees it" and begin "to regulate in the interest of the regulated");
216. see also supra note 51 and accompanying text (discussing the capture theory).
217. See SHAPIRO, supra note 13, at 75 (noting that judges insisted that "agencies make right decisions clearly and consciously directed by properly articulated public values and resting on correct technical analysis").
218. See id. (noting that courts viewed it as their duty to make sure that agencies "deliberated rightly," which meant that the agency had deliberated "in the way a moral philosopher armed with technical as well as moral knowledge would deliberate" to "choose the good");
219. Bressman, supra note 142, at 1761 (noting that hard look's reasoned decisionmaking requirement reflected an interest group representation model, which sought to promote participation in the decisionmaking process by all affected interests).
220. See Bressman, supra note 142, at 1763 ("By the 1980s, administrative law theory and doctrine had transitioned to presidential control of agency decisionmaking as a principal mechanism for legitimating such decisionmaking.");
221. David Zaring & Elena Baylis, Sending the Bureaucracy to War, 92 IOWA L. REV. 1359, 1370-77 (2007) (noting the shift from expertise toward a political model of agency decisionmaking);
222. see also 1 PIERCE, supra note 138, §1.7, at 25-26 (describing increased focus on presidential control over the administrative state);
223. Kagan, supra note 4 (describing the rise in the presidential control model of agency decisionmaking).
224. See James F. Blumstein, Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues, 51 DUKE L.J. 851, 851-53 (2001) (describing the widespread belief in presidential regulatory review);
225. Bressman, supra note 142, at 1764 (noting that the presidential, control model enjoys "bipartisan political appeal" and "broad scholarly appeal" and that it "has enjoyed widespread support");
226. cf. Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV. 53, 59 (2008) (noting that "[s]cholars with diverse ideological and methodological commitments have asserted that. . . bureaucratic policy should track majoritarian values and that this goal is best advanced by giving decision-making authority to the most politically accountable officials," which implies "the need for presidential control over bureaucratic policymaking, because the president is the institutional actor most responsive to the preferences of a national majority").
227. See generally 1 PIERCE, supra note 138, § 1.7, at 25-26 (discussing the recognition that policymaking is political).
228. See, e.g., Blumstein, supra note 147, at 855 ("[C]entralized presidential review of agency regulatory activity is an understandable and salutary development.");
229. Philip J. Harter, Executive Oversight of Rulemaking: The President Is No Stranger, 36 AM. U. L. REV. 557, 568 (1987) ("We vote for presidents, not secretaries or administrators. . . . White House oversight places accountability precisely where it should be, namely, where the electorate can do something about it.");
230. Kagan, supra note 4, at 2384 ("Presidential administration . . . advances political accountability by subjecting the bureaucracy to the control mechanism most open to public examination and most responsive to public opinion.").
231. The President's appointment powers are spelled out in the Constitution in the "Appointments Clause." See U.S. CONST, art. II, § 2, cl. 2. Although there is no equivalent "Removal Clause," the Supreme Court has held that Congress cannot constrain the President's removal power over executive officials in a way that would unduly interfere with the President's constitutionally appointed duty under Article II to faithfully execute the laws.
232. See Morrison v. Olson, 487 U.S. 654 (1988). The Supreme Court is poised to speak to the issue of removal again this Term in a pending case involving the constitutionality of the Public Company Accounting Oversight Board.
233. See Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667 (D.C. Cir. 2008), cert, granted, 129 S. Ct. 2378 (U.S. May 18, 2009) (No. 08-861).
234. See Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30,1993);
235. Exec. Order No. 12,498, 3 CF.R. 323 (1986);
236. Exec. Order No. 12,291, 3 C.F.R. 127 (1982);
237. see also Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1261 (2006) (describing how Reagan "tapped the Office of Management and Budget (OMB) to review agency rulemaking and help streamline the administrative state");
238. Blumstein, supra note 147, at 863-70 (describing the Reagan and Clinton Administration's embrace of executive orders to structure regulatory review).
239. See generally Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61,
240. 64-65 (2006) (observing that presidential control over administration has received significant legal attention but that Congress's role in administration has been "insufficiently noted");
241. Zaring & Baylis, supra note 146, at 1371 (contrasting how some theorists "have focused their attention on congressional control of agencies and have addressed the competence of agencies to act by considering how Congress would oversee their actions" whereas "Presidentialists, on the other hand, have cited the political choices that agencies make with the president and have characterized agency action as subject to strong presidential control").
242. See, e.g., Matthew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989);
243. Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 166 (1984).
244. See generally David B. Spence, Administrative Law and Agency Policy-Making: Rethinking the Positive Theory of Political Control, 14 YALE J. ON REG. 407, 414-15 (1997) (describing positive political theorists' focus on Congress's control over agencies).
245. See McCubbins & Schwartz, supra note 153, at 165-66.
246. See U.S. CONST, art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ....").
247. See generally Beermann, supra note 152, at 84 ("The power of the purse is among Congress's most potent weapons in its effort to control the execution of the laws.").
248. Beermann, supra note 152, at 70.
249. 467 U.S. 837 (1984).
250. For some examples of articles discussing the significance and implications of the Chevron doctrine, see, for example, Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833 (2001);
251. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467 (2002);
252. and Kathryn A. Watts, Adapting to Administrative Law's Erie Doctrine, 101 NW. U. L. REV. 997 (2007).
253. Chevron, 467 U.S. at 865.
254. See generally Merrill & Watts, supra note 158, at 479 (describing how the Court has made clear that "Chevron deference is grounded in a congressional intent to delegate primary interpretive authority to the agency").
255. See generally Bressman, supra note 142, at 1764 (noting that Chevron is the "[m]ost prominent example" of how administrative law now reflects the presidential control model).
256. Id. at 1765.
257. 657 F.2d 298 (D.C. Cir. 1981).
258. Id. at 386-91.
259. Judge Wald had served as a "subcabinet appointee in the Carter administration." EDLEY, supra note 4, at 178.
260. Costle, 657 F.2d at 409.
261. Id. at 405.
262. Id. at 405-06;
263. see also id. at 400 n.502 ("Democratic ideology requires control of administrative action by elected representatives of the people." (quoting Seymour Scher, Conditions for Legislative Control, 25 J. POL. 526, 526 (1963))).
264. Id. at 408.
265. Id.
266. See supra Part I.
267. One could argue that instead of altering hard look review's expert-driven slant to bring it in line with the presidential control model, an alternative might be to alter other administrative law doctrines to bring them in line with hard look's expert-driven model. This approach, however, would be undesirable for several reasons. Most prominendy, moving away from administrative law's current political control model would reduce the opportunity for political accountability and monitoring of agencies. Cf. infra Section II.D. (discussing accountability benefits).
268. For an interesting book on the general ways in which politics may intrude on science, see
269. RESCUING SCIENCE FROM POLITICS: REGULATION AND THE DISTORTION OF SCIENTIFIC RESEARCH (Wendy Wagner & Rena Steinzor eds., 2006).
270. See also Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613, 1617 (1995) (arguing that "agencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions").
271. President Obama has taken steps to ensure that agencies do not distort science to serve political goals -most recendy issuing a directive that seeks to guarantee scientific integrity. See Sheryl Gay Stolberg, Obama Puts His Own Spin on the Mix of Science with Politics, N.Y. TIMES, Mar. 10, 2009, at A18 (discussing Obama's directive to "guarantee scientific integrity, in federal policy making"). Obama's directive has been read to seek to separate scientific judgments from policy judgments so that scientists are not making policy but rather are merely providing the best available scientific information to policymakers, who then may take both science and politics into account in setting policy.
272. Cf. id. (noting that the directive "will not divorce science from politics, or strip ideology from presidential decisions").
273. See Jeremy Symons, How Bush and Co. Obscure the Science, WASH. POST, July 13, 2003, at B4.
274. Juliet Eilperin, Putting Some Heat on Bush: Scientist Inspires Anger, Awe for Challenges on Global Warming, WASH. POST, Jan. 19, 2005, at A17.
275. Andrew C. Revkin, Cheney's Office Said To Edit Draft Testimony on Warming, N.Y. TIMES, July 9, 2008, at A12.
276. See James Glanz, Scientists Say Administration Distorts Facts: Accusations Include Suppressing Reports and Stacking Committees, N.Y. TIMES, Feb. 19, 2004, at A18;
277. Guy Gugliotta & Rick Weiss, President's Science Policy Questioned: Scientists Worry that Any Politics Will Compromise Their Credibility, WASH. POST, Feb. 19, 2004, at A2;
278. Andrew C. Revkin, Bush vs. the Laureates: How Science Became a Partisan Issue, N.Y. TIMES, Oct. 19, 2004, at F1.
279. Christopher Lee, Ex-Surgeon General Says White House Hushed Him, WASH. POST, July 11, 2007, at A1.
280. See, e.g., Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 93-95 (1995);
281. Paul R. Verkuil, Comment, Rulemaking Ossification-A Modest Proposal, 47 ADMIN. L. REV. 453, 457-58 (1995);
282. see also supra note 124 and accompanying text (citing ossification literature).
283. Pierce, supra note 125, at 920;
284. see also Jordan, supra note 124, at 395 (summarizing ossification arguments made by opponents of hard look review).
285. See Jordan, supra note 124, at 394.
286. Cf. Kagan, supra note 4, at 2382-83 (noting that enabling politics to play a role in hard look review would help to respond to the ossification charge often levied against hard look review because "courts would have an additional reason to defer to administrative decisions in which the President has played a role" and hence courts would reverse agency decisions less often).
287. See Mendelson, supra note 123, at 34 (arguing that the fact that presidential influences on agencies are currently not transparent "has significant adverse consequences, both for the appropriateness of presidential influence and for the legitimacy of agency decision making");
288. see also EDLEY, supra note 4, at 22 (noting that political accountability is one of the positive norms associated with decisions based on politics).
289. Bressman, supra note 142, at 1780.
290. See Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 AM. U. L. REV. 443, 457 (1987) (arguing that because agencies do not disclose ex parte influences from the President, "[t]he public cannot judge the President's reasons or motivations in deciding how to vote in the next election because the public is never even aware of the intervention, much less of its content").
291. The monitoring gap would not be completely eliminated, even if politics were given an accepted place, if agencies were allowed to choose to disclose only some political influences and not others. See generally infra Section IV.B. (discussing whether disclosure of political influences should be mandated).
292. See Humphrey's Ex'r v. United States, 295 U.S. 602 (1935) (upholding limits on the President's ability to remove a member of the FTC, an independent regulatory commission).
293. See 1 PIERCE, supra note 138, § 7.9, at 500-01 (noting that the President can exert control over policymaking by independent agencies through informal means, such as by simply calling or having a subordinate call "the critical decisionmakers at the agency to express the President's views");
294. Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. REV. 459, 498 (2008) (concluding that institutional designs to insulate independent agencies do not mean that Presidents lack control over agencies and noting that "there is good reason to think that independent agencies will adhere to presidential preferences once a majority of commissioners are from the President's party").
295. See generally Beermann, supra note 152, at .109 (noting that independent agencies "are supposed to be insulated from politics, but the truth is that while the independent agencies may be insulated from the President, they are often much more responsive to direct (albeit informal) congressional supervision than agencies within the executive branch").
296. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1815 (2009) (emphasis added).
297. Edley previously reached a similar conclusion about the importance of bringing political influences out into the open. See EDLEY, supra note 4, at 190-91 ("The disclosure of the subjective, ideological, and electoral factors that influence the agency's decision is a crucial step toward disciplining them. The failure of courts to demand disclosure encourages secret politics, pretermitting the process of continuing, between-elections political accountability.").
298. SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87 (1943).
299. Conn. Light & Power Co. v. NRC, 673 F.2d 525, 535 (D.C. Cir. 1982).
300. See Chenery I, 318 U.S. at 94;
301. see also SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 196 (1947) (reiterating the rule that "a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency").
302. Chenery II, 332 U.S. at 196.
303. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983) ("Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider....");
304. JERRY L. MASHAW, RICHARD A. MERRILL & PETER M. SHANE, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 294 (5th ed. 2003) ("[A]gencies empowered by Congress to regulate may do so only if consistent with their underlying statutory mandates.").
305. Cf. Sierra Club v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981) (noting that an administrative rulemaking may be overturned on the grounds of political pressure if the "content of the pressure ... is designed to force [the agency] to decide upon factors not made relevant by Congress in the applicable statute" and if the agency's determination was actually affected by the "extraneous considerations") (emphasis added).
306. See generally Richard J. Pierce, What Factors Can an Agency Consider in Making a Decision?, 2009 MICH. ST. L. REV (forthcoming) (manuscript at 4, on file with The Yale Law Journal), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157497 ("Congress rarely explicitly forbids an agency from considering a decisional factor that is logically relevant to a decision or class of decisions. It sometimes chooses decisional standards that implicitly preclude consideration of a logically relevant decisional factor, however.").
307. Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).
308. Id. §1533(a)(1).
309. Id. §1533(b)(1)(A).
310. But see Holly Doremus, Using- Science in a Political World: The Importance of Transparency in Natural Resource Regulation, in RESCUING SCIENCE FROM POLITICS: REGULATION AND THE DISTORTION OF SCIENTIFIC RESEARCH 143, 164 (Wendy Wagner & Rena Steinzor eds., 2006) (noting that "[n] atural resource management decisions [such as those made under the ESA], although they appear superficially to be dictated by scientific information, in fact can hide numerous judgments," such as policy-driven and politically-driven judgments).
311. See generally Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (holding in the famous "snail darter" case that the ESA placed an "incalculable" value on endangered species and thus did not empower the courts to weigh the economic cost of halting completion of a dam against the benefit of saving the snail darter species);
312. W. Watersheds Project v. Fish & Wildlife Serv., 535 F. Supp. 2d 1173 (D. Idaho 2007) (finding that the Fish and Wildlife Service acted arbitrarily and capriciously when determining whether to list the greater sage-grouse under the ESA by failing to use "best science" and by allowing extensive political interference by a deputy assistant secretary in the Interior Department).
313. See The Threatened Polar Bear; It Gets Federal Protection, but Nothing To Save Its Habitat, WASH. POST, May 15, 2008, at A14 (reporting on Kempthorne's statement).
314. MASHAW ET AL., supra note 197, at 292 ("Virtually all statutes conveying rulemaking power to executive (as well as 'independent') agencies are silent on such questions as whether the agency head may consult with the President or his agents and if so, on what basis.").
315. One reason to read Congress's silence this way might be that Congress could have legislated against the backdrop of the current understanding of arbitrary and capricious review. In other words, Congress might have remained silent in most statutes about what factors can and cannot be considered by agencies because Congress assumed that the judicial pattern favoring technocratic decisionmaking would prevail.
316. See 1 PIERCE, supra note 138, § 7.4, at 453.
317. See Warren v. EPA, 159 F.3d 616 (D.C. Cir. 1998);
318. Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455 (D.C. Cir. 1998);
319. see also 1 PIERCE, supra note 138, § 7.4, at 453-55 (discussing the D.C. Circuit's cases on the issue).
320. Warren, 159 F.3d at 624.
321. 1 PIERCE, supra note 138, § 7.4, at 453 (citing MASHAW & HARFST, supra note 4, at 202-23 (1990)).
322. See supra Section I.A.
323. Sierra Club v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981).
324. Id. at 410.
325. Another reason to assume that Congress intended to allow politics to play a role in agency decisions can be found-at least as to executive agencies -in Congress's choices regarding agency structure. By creating executive agencies whose heads are removable at will by the President, Congress seems to have quite clearly accepted the notion that the President would be allowed to influence agency decisions.
326. See Dist. No. 1, Pac. Coast Dist. v. Mar. Admin., 215 F.3d 37, 42-43 (2000) (citing 5 U.S.C. §§ 553(c), 554(a), 557(d) (2000)).
327. 549 U.S. 497 (2007). Another case recently decided by the Supreme Court, National Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007),
328. also arguably confuses matters a bit. For a detailed discussion of the significance of National Ass'n of Home Builders,
329. see Pierce, supra note 199, at 14-18.
330. Massachusetts, 549 U.S. at 533.
331. Id. at 532 (emphasis added).
332. 42 U.S.C. § 7521(a)(1) (2000).
333. Massachusetts, 549 U.S. at 535 (emphasis added).
334. Id. at 552 (Scalia, J., dissenting).
335. Id. (quoting42 U.S.C. § 7521(a)(1) (2000)).
336. Cf. id. (noting that the statutory text is "silent, as texts are often silent about permissible reasons for the exercise of agency discretion").
337. See generally Pierce, supra note 199, at 14 ("I have no doubt that many petitioners will argue that Massachusetts . . . stand[s] for the proposition that congressional silence with respect to a decisional factor should be interpreted as congressional rejection of that factor and as a prohibition on agency consideration of that factor in maldng decisions ....").
338. See Jack M. Beermann, The Tum Toward Congress in Adminbtrative Law, 89 B.U. L. REV. 727, 740 (2009) (arguing that Massachusetts supports the general principle that "when an agency decides whether to take even preliminary steps in the regulatory process that might lead to rulemaking, it must consider Congress's factors rather than the agency's or the administration's preferred factors");
339. cf. Pierce, supranote 199, at 12-13 ("I fear that the majority opinion in Massachusettswill be interpreted to reject die long line of D.C. Circuit opinions in which that court has interpreted congressional silence to permit an agency to consider a logically relevant decisional factor....").
340. Pierce, supra note 199, at 18 ("I doubt diat any Justice actually wants lower courts to interpret Massachusetts... to stand for the broad proposition that congressional silence with respect to a factor that is logically relevant to an agency decision must be interpreted to prohibit die agency from considering the factor.").
341. Massachusetts, 549 U.S. at 534-35.
342. See Watts & Wildermuth, supra note 85, at 1043.
343. Massachusetts, 549 U.S. at 527 (noting that the scope of review is narrow).
344. See Watts & Wildermuth, supra note 85, at 1043;
345. see also Massachusetts, 549 U.S. at 535 (noting that petitioners seeking certiorari called global warming "the most pressing environmental challenge of our time");
346. Examining the Case for the California Waiver: Before the S. Subcomm. on Clean Air and Nuclear Safety, 110th Cong. 27 (2007) (statement of Edmund G. Brown Jr., Att'y Gen. of California) ("Global warming is the most important environmental and public health issue we face today.").
347. See Watts & Wildermuth, supra note 85, at 1043;
348. cf. Pierce, supra note 199, at 18 (discussing how the justices' conclusions in Massachusetts were driven more by politics than by legal doctrine). The notion diat judges should play a special role in environmental law cases although never embraced openly by the Supreme Court-has been expressly articulated by some judges, including Judge Bazelon of the D.C. Circuit.
349. See, e.g., Natural Res. Def. Council v. Nuclear Regulatory Comm'n, 547 F.2d 633, 657 (D.C. Cir. 1976) ("Decisions in areas touching the environment or medicine affect the lives and health of all. These interests, like the First Amendment, have 'always had a special claim to judicial protection.'") ; EnvtI. Def. Fund v. Ruckelshaus, 439 F.2d 584, 598 (D.C. Cir. 1971).
350. For example, Massachusetts could be viewed as resting on very particular aspects of the Clean Air Act, including the fact that the statute provided that the Administrator "shall by regulation prescribe ... standards" rather than using the term "may." 42 U.S.C. §7521(a)(1) (2000) (emphasis added).
351. See Pierce, supra note 199, at 15 (noting the potential relevance of the word "shall").
352. 129 S. Ct. 1498, 1518 (2009) (Stevens, J., dissenting) (characterizing the majority's approach).
353. See id. at 1516;
354. see also 33 U.S.C. §1326(b) (2000).
355. 234- 129 S. Ct. at 1508.
356. Id. at 1518 (Stevens, J., dissenting).
357. See generally Pierce, supra note 199, at 14-18 (detailing various additional reasons why Massachusetts should not be read to mean that congressional silence on a factor forecloses agency consideration of the factor).
358. Cf. Kagan, supra note 4, at 2326-31 (suggesting that congressional delegations to agencies to engage in rulemaking that are silent on the issue of presidential involvement should presumptively be read to permit presidential guidance).
359. If Congress cannot be presumed to have intended the agency to consider a certain factor, then the agency plainly should not be allowed to consider it. In other words, the President or other political actors should not be allowed to inject decisional factors that Congress cannot be presumed to have intended the agency to consider. If the rule were otherwise, then we would be acknowledging die lack of legal constraints governing the delegation of power to the executive branch. In light of Chief Justice Marshall's opinion in Marbury v. Madbon, 5 U.S. (1 Craneh) 137 (1803), such a lack of legal constraints would in turn suggest the unavailability of judicial review because die question would rest within the President's discretion and thus would be political, not legal, in nature.
360. See, e.g., Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511 (1992);
361. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985) [hereinafter Sunstein, Interest Groups] ;
362. Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984) [hereinafter Sunstein, Naked Preferences].
363. See Sunstein, Interest Groups, supra note 239, at 63 ("Reviewing courts are attempting to ensure that the agency has not merely responded to political pressure but that it is instead deliberating in order to identify and implement die public values that should control the controversy.").
364. Cf. Sunstein, Naked Preferences, supra note 239, at 1692 ("The 'reasonableness' constraint of the due process clause is perhaps the most obvious example. The minimum requirement that government decisions be something other than a raw exercise of political power has been embodied in constitutional doctrine under the due process clause before, during, and after the Lochner era.").
365. See supra notes 197-238 and accompanying text.
366. See id.
367. 603 F. Supp. 2d 519 (E.D.N.Y. 2009).
368. Id. at 538.
369. See id. at 546.247-
370. See Jerry L. Mashaw, Small Things Like Reasons Are Put in ajar: Reason and Legitimacy in the Adminbtrative State, 70 FORDHAM L. REV. 17, 21 (2001) (arguing that an agency's claim that "[t]he President made me do it" would delegitimize the agency action rather than count as a "good" reason);
371. see also Mendelson, supra note 123, at 52 (arguing that "[s]aying 'The President said so,' seems arbitrary because it does not identify any more general principle that might explain the choice made either within the agency or within the executive review process").
372. 5 U.S. (1 Cranch) 137 (1803);
373. see also Peter L. Strauss, Legblation That Isn't - Attending to Rulemaking's "Democracy Deficit," 97 CAL. L. REV. (forthcoming 2009-2010) (manuscript at 11, on file with The Yale Law Journal) (arguing that if an agency based a decision on political factors not authorized by Congress, this would "take us straight into the quagmire suggested" by Marbury).
374. See Mendelson, supra note 123, at 52.
375. See Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 18, 886 (Apr. 24, 2009).
376. Examples of legitimate policy considerations could include the allocation of agency workload, personnel, and budgets. These policy considerations clearly embody "political" choices. For example, when Congress allocates money to different agencies, it is engaging in a political decision (e.g., should it give more money to fund environmental efforts or financial sector regulation?).252.
377. See Tummino v. Torti, 603 F. Supp. 2d 519, 543-44 (E.D.N.Y. 2009) (noting that the court may consider extra-record materials where an agency decision was made in bad faith, such as where the decision was tainted by impermissible political and ideological considerations).
378. See infra note 329 and accompanying text (discussing how courts
379. For an article on the role of jawboning in the administrative state and whether such ex parte contacts should be limited, see Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 COLUM. L. REV. 943 (1980).
380. See generally 1 PIERCE, supra note 138, § 7.9, at 497-503 (describing executive control over agency rulemaking);
381. Blumstein, supra note 147, at 863-70 (describing the history of centralized presidential regulatory review);
382. Kagan, supra note 4, at 2281-99 (describing President Clinton's exertion of control over administrative agencies through executive orders and presidential directives);
383. Verkuil, supra note 254, at 944-47 (analyzing White House contacts with administrative agencies).
384. See supra notes 149-151 and accompanying text.257. U.S. CONST, art II, §§ 1, 3.
385. See Kagan, supra note 4, at 2356-57 (noting that agencies often must make value-laden rather than expert-driven judgments and that a strong presidential role accordingly should be appropriate where, for example, agencies "confront the question, which science alone cannot answer, of how to malee determinate judgments regarding the protection of health and safety in the face of both scientific uncertainty and competing public interests").
386. See, e.g., Statement on Federal Regulations on Privacy of Medical Records, 37 WEEKLY COMP. PRES. DOC. 611, 612 (Apr. 12, 2001) (statement by President Bush directing Secretary Thompson to "recommend appropriate modifications" to a medical privacy rule to address concerns about the content of the rule).
387. Air Quality, Chemical Substances, and Respiratory Protection Standards, 69 Fed. Reg. 67, 681, 67, 686 (Nov. 19, 2004) (explaining the Department's decision to remove a number of rulemakings from its agenda in light of a reprioritization of the agency's agenda that flowed from the new Administration's goals).
388. In denying the rulemaking petition that was at issue in Massachusetts v. EPA, 549 U.S. 497 (2007), the EPA did attempt to explain its denial in part by invoking a consistency and uniformity rationale: it stressed that it wanted to avoid regulating in a piecemeal fashion and stepping on the President's own foreign policy initiatives.
389. Id. at 513. The Court, however, rejected this as an inadequate explanation for the agency's denial of the petition, noting that this and other explanations provided by the agency were "divorced from the statutory text."
390. Id. at 532.262.
391. Lou Cannon & David S. Broder, Reagan Vows To Try To Halt 'Deluge' of Japanese Autos, WASH. POST, Sept. 2,1980, at A2 ("Ronald Reagan campaigned for Democratic votes in the recession-ridden auto capital today and said that as president he would try to get rid of 'several thousand' federal regulations on American automakers and move to halt the 'deluge' of Japanese auto imports.");
392. see also Lucia Mouat, Automakers' Plea to Reagan Leadership: Less Regulation, CHRISTIAN SCI. MONITOR, Dec. 26, 1980, at 6 ("Hopes are high among US automakers that the Reagan administration will conduct an early, hard-hitting assault on what they see as questionable and costly safety and environmental regulations affecting them.");
393. Hedrick Smith, Republicans Gather in Detroit for Start of National Parley, N.Y. TIMES, July 13, 1980, at Si (reporting that while Reagan was campaigning for President, he released a "four-point economic recovery program keyed to the automobile industry and aimed at using recession-bound Detroit to underscore the nation's economic plight under President Carter").
394. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part) (noting that the NHTSA's change in views "seem[ed] to be related to the election of a new President of a different political party").
395. See generally State Farm Mut. Auto. Ins. v. Dep't of Transp., 680 F.2d 206, 213 (D.C. Cir. 1982) (noting that the NHTSA's proposal of the possible rescission was "announced by the White House Press Office on April 6, 1981, as part of a larger package of economic recovery measures").
396. Sierra Club v. Cosde, 657 F.2d 298, 410 (D.C. Cir. 1981) (noting that an administrative rulemaking may be overturned on the grounds of political pressure if "the content of the pressure . . . is designed to force [the agency] to decide upon factors not made relevant by Congress in the applicable statute" and if the agency's determination was actually affected by the "extraneous considerations") (emphasis added).
397. See Kagan, supra note 4, at 2352 (noting that "some hesitation is warranted" in allowing a presidential administration to influence agency decisions that are "most scientific or otherwise technical in nature and, as such, least connected to political judgment").
398. Cf. 1 PIERCE, supra note 138, § 7.9, at 501 ("OMB cannot order an agency to base its decisions on a cost-benefit analysis ... if Congress has explicitly required the agency to base its decisions on a standard that is inherently inconsistent with that analysis.").267.
399. See, e.g., Memorandum from Andrew H. Card, Jr., Assistant to the President and Chief of Staff, to Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702 (Jan. 24, 2001).
400. See, e.g., Statement of Regulatory and Deregulatory Priorities, 65 Fed. Reg. 73, 453, 73, 460 (Nov. 30, 2000) (noting that an initiative involving chemicals "was announced by the Vice President on EPA's Earth Day 1988 in response to the finding that most commercial chemicals have very little, if any, publicly available toxicity information on which to make sound judgments about potential risks").
401. If an executive official issuing a directive to an agency is low ranking, it may be hard to show that the official is actually speaking for the President or that the official is subject to presidential control.
402. See generally Verkuil, supra note 254, at 947 (noting that contact between lower level aides and assistants "bears a heavier burden of justification since it is more removed from direct presidential control"). This might undercut the rationality of an agency's reliance on the official's directions since the official may not represent the views of the President and may not be subject to political control and accountability.
403. Memorandum from Andrew H. Card, Jr., supra note 267.
404. This type of instruction to agency heads-to withhold proposed regulations when there is a change in administrations-is quite common. See Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 850 11.6 (9th Cir. 2006) (Kozinski, J., dissenting) ("Withholding proposed regulations that are final but for publication in the Federal Register seems to be common when there is a change in administrations."), vacated, 490 F.3d 725 (9th Cir. 2007);
405. see also Marianne Koral Smythe, Judicial Review of Rule Rescissions, 84 COLUM. L. REV. 1928, 1931 11.18 (1984) (noting that "[o]ne of Reagan's first actions on taking office was to impose a 60-day freeze on about 100" of the rules issued on the eve of Carter's last days in office). Upon entering the White House this year, President Obama continued this trend.
406. See Jim Tankersley, Bush-era Acts Elude Reversal by Obama, CHI. TRIB., Jan. 22, 2009, at 26 ("Like Bush, Obama took office and immediately froze federal regulations not yet finalized.").
407. See Memorandum from Rahm Emanuel, Assistant to the President and Chief of Staff, to Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435 (Jan. 26, 2009).273.
408. See Air Quality, Chemical Substances, and Respiratory Protection Standards, 69 Fed. Reg. 67, 681, 67, 686 (Nov. 19, 2004) (citing the Card Memorandum as a reason the agency had reprioritized its agenda, resulting in a drop in the total number of rulemaking projects on the agency's agenda from 145 in the fall of 2000 to just 79 by the fall of 2003).
409. See OMB's Mission, http://www.wliitehouse.gov/onib/organization- role (last visited Sept. 5, 2009) (describing the mission of OMB).
410. See Robin Kundis Craig, The Bush Administration's Use and Abuse of Rulemaking, Part I: The Rise of OIRA, 28 ADMIN. & REG. L. NEWS, Summer 2003, at 8 ("OIRA has recently created, out of no recognizable legal authority, the 'prompt letter'-a letter written to an administrative agency requesting that it take specific regulatory actions.");
411. see also Office of Management and Budget News Release 2001-35, OMB Encourages Lifesaving Actions by Regulators (Sept. 18, 2001), http://www.reginfo.gov/public/prompt/2001-35.html (last visited Sept. 22, 2009) (describing how "[t]he prompt letter is a new tool created by OIRA's Administrator, John D. Graham, to highlight issues that may warrant the attention of regulators").
412. Introduction to the Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions, 70 Fed. Reg. 64, 079, 64, 087 (Oct. 31, 2005) (describing how "OIRA's first set of prompts suggested lifesaving opportunities at FDA, NHTSA, OSHA and EPA").
413. Id.278.
414. See supra notes 152-155 and accompanying text.
415. Because such comments are part of the rulemaking record and form part of the public comments that agencies must adequately respond to when the APA applies,
416. see 5 U.S.C. § 553(c) (2006), it is common to see agencies acknowledge the filing of such public comments by congressmen.
417. See, e.g., Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, 73 Fed. Reg. 45,106, 45,114 (Aug. 1, 2008) (noting the receipt of "5,600 timely comments from consumers, retailers, foreign governments, producers, wholesalers, manufacturers, distributors, members of Congress, trade associations and other interested parties") (emphasis added);
418. Federal Motor Vehicle Safety Standards; Rearview Mirrors, 73 Fed. Reg. 42,309, 42,310 (July 21, 2008) (noting comments filed by two members of Congress);
419. Card Format Passport; Changes to Passport Fee Schedule, 72 Fed. Reg. 74,169, 74,170 (Dec. 31, 2007) ("Among those submitting comments were: four Members of Congress, Senators Hillary Clinton and Charles Schumer of New York, Senator Patrick Leahy of Vermont, and Representative Louise Slaughter of New York."). Thus, agencies' willingness to mention and discuss public congressional comments stands as an exception to the normal rule that agencies will sweep political influences under the rug.280. 1 PIERCE, supra note 138, § 1.7, at 26;
420. see also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (noting that "[w]hile agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of Government to make such policy choices").
421. See supra note 149 and accompanying text.
422. See supra notes 152-155 and accompanying text;
423. see also Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules, 51 DUKE L.J. 1059, 1076-78 (2001) (discussing the mechanisms through which Congress exercises oversight over agency rulemaking).283. Although this might sound like a difficult task to impose on the courts, it is not all that different from how courts currendy give different weight to different types of legislative history when construing statutes - giving more weight, for example, to committee reports than to other types of legislative history.
424. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986) ("We have repeatedly recognized that the authoritative source for legislative intent lies in the Committee Reports on the bill").
425. Cf. Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 358-59 (D.C. Cir. 1989) (noting that the agency relied upon comments filed by eleven members of Congress who had served as conferees on the statutory amendments at issue).
426. Cf. Sierra Club v. Costle, 657 F.2d 298, 409 & n.539 (D.C. Cir. 1981) (noting that it would be improper for a congressman to exert pressure on an agency that would force the agency to decide an issue based on "factors not made relevant by Congress in the applicable statute"); D.C. Fed'n of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1246 (D.C. Cir. 1972) (suggesting that it would be improper for the Secretary of Transportation to make a determination that a proposed bridge should be part of an interstate highway system because of a congressman's statements to the effect that money earmarked for another project would be withheld unless the Secretary approved the bridge).
427. Cf. EDLEY, supra note 4, at 196-97 (noting that political influences should be accepted as "good politics" only where they "embody the positive attributes like representativeness and accountability").287. The only types of rulemaking proceedings considered here are rulemakings that would count as informal proceedings. In other words, "formal" rulemaking proceedings subject to sections 556 and 557 of the APA (rather than section 553) are not considered here because section 557 expressly precludes ex parte contacts in the context of formal rulemaking.
428. See 5 U.S.C. § 557(d) (1) (2006) (prohibiting ex parte contacts) ;
429. see also Verkuil, supra note 254, at 968 (discussing the prohibition placed on ex parte contacts in formal rulemaking proceedings). Rulemaking today, however, overwhelmingly takes place under the rubric of informal notice-and-comment rulemaking, not formal rulemaking.
430. Cf. Merrill & Watts, supra note 158, at 504-19 (discussing numerous statutes that give agencies broad general grants of rulemaking power).
431. 5 U.S.C. § 553(e) (2006). In addition to the default provisions of the APA, some statutes specifically provide for a "right to petition for rulemaking, and some of these statutes specify procedures to be followed in the petitioning process." Petitions for Rulemaking (Recommendation No. 86-6 n.1), 1 C.F.R. § 305.86-6 (1987).
432. 5 U.S.C. § 555(e) (2006) ("Except in affirming a prior denial or when the denial is selfexplanatory, the notice shall be accompanied by a brief statement of the grounds for denial.").291.
433. See, e.g., 10 C.F.R. § 490.6 (2009) (listing reasons why the Department of Energy might deny a rulemaking petition);
434. C.F.R. § 200.5 (2009) (listing reasons that might explain why the Federal Election Commission chooses to act a certain way on a petition for rulemaking);
435. see also Denial of Petition for Rulemaking;
436. Federal Motor Vehicle Safety Standards, 61 Fed. Reg. 38,135 (proposed July 23,1996) (to be codified at 49 C.F.R. pt. 571) (denying the rulemaking petition, among other reasons, because of the lack of evidence of a significant safety problem that would warrant federal intervention).
437. 549 U.S. 497 (2007).
438. Id. at 511-14;
439. see also Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,930 (Sept. 8, 2003) ("Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed.").
440. Massachusetts, 549 U.S. at 513-14;
441. see also Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. at 52,931 (noting that "the President has laid out a comprehensive approach to climate change that calls for near-term voluntary actions and incentives along with programs aimed at reducing scientific uncertainties and encouraging technological development so that the government may effectively and efficiently address the global climate change issue over the long term").
442. But see Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. at 52,929 (discussing the President's attempts to deal with climate change and noting that the EPA did "agree with the President that 'we must address the issue of global climate change'").296.
443. See generally Natural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1046 (D.C. Cir. 1979) ("An agency's discretionary decision not to regulate a given activity is inevitably based, in large measure, on factors . . . [such as] internal management considerations as to budget and personnel; evaluations of its own competence; [and] weighing of competing policies within a broad statutory framework.").
444. Cf. NHTSA Vehicle Safety Rulemaking and Supporting Research: Calendar Years 20032006, 68 Fed. Reg. 43,972, 43,973 (July 25, 2003) (to be codified at 49 C.F.R. pt. 571) ("Agency priorities emanate from many sources, including . . . Executive initiatives, [and] Congressional interest and mandates . . . .").
445. 361 F.3d 249 (3d Cir. 2004);
446. see also supra notes 75-80 and accompanying text (discussing the Chao case).
447. Chao, 361 F.3d at 255.
448. Id. at 256 (Pollale, J., concurring).
449. Id. (quoting the attorney representing Chao).
450. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 50 (1983) ("[C]ourts may not accept appellate counsel's post hoc rationalizations for agency action.... It is well-established than an agency's action must be upheld, if at all, on the basis articulated by the agency itself") ;
451. SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87 (1943) (noting that "an administrative order must be judged" solely "upon [those grounds] which the record discloses that its action was based") ;
452. Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 81 (2d Cir. 2006) ("Generally speaking, after-the-fact rationalization for agency action is disfavored.").
453. See, e.g., Chao, 361 F.3d at 255-56 (rejecting the claim that OSHA acted in an arbitrary and capricious manner in denying rulemaking petition where OSHA denied the petition in part because OSHA has "limited resources" and where it named three "more pressing" priorities);
454. Natural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1046 (D.C. Cir. 1979) (stating that "[a] n agency's discretionary decision not to regulate a given activity is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution," such as considerations as to budget and personnel).
455. But see Pub. Citizen Health Research Group v. Chao, 314 F.3d 143 (3d Cir. 2002) (rejecting the notion that competing agency priorities could justify a nine year delay in adopting a new workplace exposure standard).
456. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007) (holding that refusals to grant rulemaking petitions are susceptible only to judicial review that is "extremely limited" and "highly deferential" (quoting Nat'l Customs Brokers & Forwarders Ass'n of Am. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989)));
457. see also Cellnet Commc'n, Inc. v. FCC, 965 F.2d 1106, 1111 (D.C. Cir. 1992) ("[A]n agency's refusal to initiate a rulemaking is evaluated with a deference so broad as to make the process akin to non-reviewability. ");
458. Am. Horse Protection Ass'n v. Lyng, 812 F.2d 1, 3-4 (D.C. Cir. 1987) (noting deferential review that applies when reviewing an agency's refusal to initiate a rulemaking).
459. Cf. SHAPIRO, supra note 13, at 117-18 ("We never say that Congress has a duty to pass a particular law or indeed any laws at all. So an agency exercising Congress's delegated lawmaking powers had no such duty either.").
460. See, e.g., Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 850 (9th Cir. 2006) (Kozinski, J., dissenting) ("Absent a statutory duty to act, an agency need not adopt regulations, even if all public comments submitted favor them .... The agency may decide not to adopt regulations because of a change in administrations, or some other change in policy."), vacated by 490 F.3d 725 (9th Cir. 2007);
461. Notice of Withdrawal of Proposed Rulemaking, 69 Fed. Reg. 13,805 (Mar. 24, 2004) ("We have decided to terminate the rulemaking for the administrative rewrite of headlighting requirements, due to other regulatory priorities and limited agency resources.").
462. See generally 469 F.3d at 850 n.6 (Kozinski, J., dissenting) (noting the practice of presidents coming into office and withholding final publication of regulations proposed under prior administrations);
463. Chen v. INS, 95 F.3d 801, 804 (9th Cir. 1996) ("President Clinton, following his inauguration on January 22, 1993, directed his newly appointed director of the Office of Management and Budget to issue a memorandum requesting that each agency withdraw from the Federal Register regulations that had not yet been published.");
464. Kootenai Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231, 1236 n.6 (D. Idaho 2001) ("On January 20, 2001, President Bush issued an order postponing by sixty (60) days the effective date of all of the Clinton Administration's 11th hour regulations and rules diat had not yet been implemented.");
465. Dabney v. Reagan, 542 F. Supp. 756, 760 (S.D.N.Y. 1982) ("Shortly after taking office, President Reagan directed the heads of all Executive Departments to postpone all pending regulations.").
466. See Jim Tankersley, Bush-era Acts Elude Reversal by Obama, CHI. TRIB., Jan. 22, 2009, at C26 ("Like Bush, Obama took office and immediately froze federal regulations not yet finalized.").
467. See generally supra note 271 and accompanying text (discussing the common practice of presidents coming into office and issuing instructions to agency heads to withhold regulations proposed under the prior administration).
468. See Air Quality, Chemical Substances, and Respiratory Protection Standards, 69 Fed. Reg. 67, 681 (Nov. 19, 2004) (to be codified at 30 C.F.R. pts. 56-58, 70-72, 75, and 90);
469. see also supra notes 116-122 and accompanying text (discussing the MSHA's withdrawal of its rule).
470. See 69 Fed. Reg. at 67,686 (citing Memorandum from Andrew H. Card, Jr., supra note 267).
471. Id. (citing UAW v. Chao, 361 F.3d 249 (3d Cir. 2004) (Pollale, J., concurring)).
472. See Smytiie, supra note 271, at 1931-33 (describing how rule rescissions may be based in part on political change).
473. See McKarcher, supra note 132, at 1369-70 ("There is nothing patently arbitrary or capricious about a newly elected administration exercising congressionally delegated discretion to implement [new] policy choices [that were] debated publicly for months or years leading up to the President's election and presumably motivated the majority of voters to support the President eventually elected.").
474. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29 (1983).
475. See Smythe, supra note 271, at 1933 & n.32;
476. cf. State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part) (noting the change in presidential administration).
477. Cf. State Farm, 463 U.S. at 59 n.* (Rehnquist, J., concurring in part and dissenting in part) (noting that a change in presidential administration is a perfectly reasonable basis for reappraising a rule and noting that in this case, "Congress has not required the agency to require passive restraints").
478. The NHTSA's downfall in the case, of course, was that it entirely failed to consider an airbags-only option. See Smytiie, supra note 271, at 1933-35 (discussing how the NHSTA's problem was its failure to meet even its minimal obligation to explain its rule rescission) ;
479. see also supra notes 59-67 and accompanying text.
480. Cf. Kagan, supra note 4, at 2356-57 (arguing that a strong presidential role is inappropriate where the agency decision is purely scientific in nature but is appropriate where agencies confront value-laden judgments that must be made in the face of "scientific uncertainty and competing public interests").
481. See EDLEY, supra note 4, at 192 (using the term "chicken-and-egg problem").
482. Cf. UAW v. Chao, 361 F.3d 249, 256 (3d Cir. 2004) (Pollak, J., concurring) (embracing change in administration as a valid reason supporting agency decision in the context of an agency's denial of a discretionary rulemaking petition) ;
483. Air Quality, Chemical Substances, and Respiratory Protection Standards, 69 Fed. Reg. 67,681, 67,686 (Nov. 19, 2004) (explaining the withdrawal of the proposed rule by noting that "each administration embraces its own priority-setting process and regulatory philosophy such that items considered priority by one administration may not be so by another administration").
484. See State Farm, 463 U.S. at 59 (Rehnquist, J., concurring in part and dissenting in part);
485. Chao, 361 F.3d at 256 (Pollak, J., concurring);
486. see also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) ("[A]n agency to which Congress has delegated policy-making responsibilities may, within die limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments.");
487. Sierra Club v. Costle, 657 F.2d 298, 405 (D.C. Cir. 1981) ("The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy.").
488. But see Tummino v. Torti, 603 F. Supp. 2d 519, 547 (E.D.N.Y. 2009) (noting in the context of review of an FDA decision involving the emergency contraceptive Plan B diat there was "unusual involvement of the White House" and that this was "not the norm").
489. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009).
490. See Chao, 361 F.3d at 256;
491. see also supra notes 75-80 and accompanying text (discussing the Chao case).
492. See Air Quality, Chemical Substances, and Respiratory Protection Standards, 69 Fed. Reg. at 67,686 (citing Chao, 361 F.3d at 249 (Pollak, J., concurring)).
493. See Department of Transportation, National Highway Traffic Safety Administration, Average Fuel Economy Standards Passenger Cars and Light Trueles Model Year 2011, 74 Fed. Reg. 14,196 (Mar. 30,2009).
494. As the D.C. Circuit has explained, the APA prohibits ex parte contacts only "in an adjudication or rulemaking 'required by statute to be made on the record after opportunity for an agency hearing.'" Dist. No. 1, Pac. Coast Dist. v. Mar. Adm'n, 215 F.3d 37, 42 (2000) (citing 5 U.S.C. § §553(c), 554(a), 557(d) (2000)). It, accordingly, would likely violate Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), if courts instructed agencies to disclose all ex parte contacts from political actors in informal rulemaking proceedings.
495. See Dist. No. 1, Pac. Coast Dist., 215 F.3d at 43.
496. See Mendelson, supra note 123, at 4, 39 ("[R]ather than addressing the issue [of politics] indirectly through judicial review, I suggest that we proceed directly to regulating procedure [by requiring] . . . that a significant agency decision include at least a summary of the substance of executive supervision.").
497. See generally 1 PIERCE, supra note 138, § 7.9, at 502 (noting that Congress has "considered passage of a statute that would require public disclosure of all communications between OMB and the agencies it 'regulates'" but that "Congress' ability to require such disclosure may be limited to some uncertain extent by the doctrine of Executive Privilege").
498. See, e.g., United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 251-52 (2d Cir. 1977) (concluding that the agency acted improperly in failing to disclose scientific research upon which die proposed rule was based) ;
499. see also EDLEY, supra note 4, at 190 & n.34 (describing as an analog "those cases in which courts have rejected agency decisions that seem[] to be based on secret or undisclosed expert studies or reasoning").
500. Bressman, supra note 142, at 1783.
501. Cf. Freeman & Vermeule, supra note 27, at 94 (describing how the Court's treatment of some cases is "tinged with underlying suspicion about politically motivated executive usurpation of judgments normally left to experts").
502. See id. at 93-95 (viewing Massachusetts as part of a judicial pattern demonstrating the Court's discomfort with seeing "executive override of expert judgments by professionals or agencies").
503. See supra notes 158-170 and accompanying text.
504. See generally Freeman & Vermeule, supra note 27, at 108-09 (noting the Court must view it as "inevitable that political considerations will come into play in executive agencies headed by political appointees who are accountable to the President").
505. See, e.g., Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. 761 (2008) (providing evidence indicating that judges' own ideologies play a role injudicial review of agency decisions for arbitrariness);
506. Pierce, supra note 125, at 908-09 (citing "[n]umerous studies [that] have found that the results of hard-look review depend primarily on the political and ideological beliefs of the judges who apply the doctrine") ;
507. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1719, 1769-70 (1997) (concluding that "ideology significantly influences judicial decisionmaking on the D.C. Circuit" and discussing how diis may call into question the benefits of hard look review).
508. See generally Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1237-40 (1994) (describing the "death" of the nondelegation doctrine and noting that "the Supreme Court has not invalidated a congressional statute on nondelegation grounds since 1935").
509. Cf. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) (noting that "the permissibility of delegating regulatory power" has hinged on the courts' ability to police and check agency exercises of delegated power);
510. Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decbions, 1987 DUKE L.J. 387 (1987) (arguing that State Farm's heightened reason-giving requirement flows from separation of powers principles and responds to the broad delegations of legislative authority given to agencies).
511. Cf. Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 472 (2001) (explaining that the text of the Constitution permits "no delegation" of legislative powers but does permit executive actors to make policy decisions in the context of executing or applying the law set down by Congress);
512. id. at 488 (Stevens, J., concurring) (accusing the Court of "pretend[ing]" that legislative power is not actually being delegated);
513. Travis H. Mallen, Rediscovering the Nondelegation Doctrine Through a Unified Separation of Powers Theory, 81 NOTRE DAME L. REV. 419, 432 (2005) (noting that the sole test for impermissible delegations -the "intelligible principle" test-"advances die fiction that administrative rulemaking is not an exercise of legislative power when it does not involve too much discretion").
514. Cf. SHAPIRO, supra note 13, at 171 ("Agencies ought to be allowed to act and to admit that they act as subordinate legislatures making a good deal of law within broad congressional constraints and in the face of considerable uncertainty about facts and diverse and changing political sentiments.").
515. See, e.g., Whitman, 531 U.S. at 488 (Stevens, J., concurring) ("I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is 'legislative power.'");
516. Loving v. United States, 517 U.S. 748, 758 (1996) (noting that the nondelegation principle "does not mean . . . that only Congress can make a rule of prospective force"); Mistretta v. United States, 488 U.S. 361, 372 (1989) ("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society . . . Congress simply cannot do its job absent au ability to delegate power . . . .");
517. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decbbns, 1 J.L. ECON. & ORG. 81, 95-98 (1985) (arguing diat accountability concerns tip in favor of broad delegations to agencies) ;
518. Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2170-71 (2004) (arguing for an exclusive delegation doctrine under which Congress has the exclusive power to decide when and whether to delegate lawmaking powers).
519. Hard look's purpose, in other words, would not be to constrain political decisionmakers by ensuring that decisionmakers are forced to make decisions
520. See generally EDLEY, supra note 4, at 189 ("It might be claimed that by ignoring politics the courts are able to escape the difficult problem of assessment and balancing that might be thrust on them were the veil lifted....").
521. Sierra Club v. Costle, 657 F.2d 298, 401 (D.C. Cir. 1981).
522. Id.
523. SHAPIRO, supra note 13, at 118.
524. Cf. Am. Radio Relay League v. FCC, 524 F.3d 227, 246-48 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part and dissenting in part) (criticizing the courts for expanding arbitrary and capricious review from a narrow test into a "far more demanding test" that leads to unpredictable results).
525. Heckler v. Chaney, 470 U.S. 821 (1985).
526. See generally Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657, 1667-69 (2004) (discussing Chaney's decision to insulate agency failures to enforce from judicial review).
527. See, e.g., Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 848 (9th Cir. 2006) (Kozinski, J., dissenting) ("[A]n agency may choose not to adopt discretionary regulations for a variety of reasons, many of which a court can't review: a change in policy; a lack of enforcement resources; a lack of scientific expertise to address the problem at this time; a change in direction based on a determination that the problem is better addressed some odier way."), vacated by 490 F.3d 725 (9th Cir. 2007) ;
528. WWHT, Inc. v. FCC, 656 F.2d 807, 817 (D.C. Cir. 1981) (noting that review of denials of rulemaking petitions is constrained because "[a]n agency's discretionary decision not to regulate a given activity is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution-e.g., internal management considerations as to budget and personnel; evaluations of its own competence; weighing of competing policies within a broad statutory framework") (internal citations omitted) ;
529. see also EDLEY, supra note 4, at 180-81 (discussing how political influences are sometimes "acknowledged as a reason to treat the agency's discretion as unreviewable, and hence immune to legal discipline").
530. See supra Section III.B. In her forthcoming article, Professor Mendelson has reached a similar conclusion about die importance of the content of political influences.
531. See Mendelson, supra note 123, at 4 (arguing that whether presidential influences on agency decisions help to increase or decrease legitimacy depends "on the content of that influence").
532. Cf. Sierra Club v. Costle, 657 F.2d 298, 401 (D.C. Cir. 1981) ("As judges... we must refrain from the easy temptation to look askance at all face-to-face lobbying efforts, regardless of the forum in which they occur, merely because we see them as inappropriate in the judicial context.");
533. SHAPIRO, supra note 13, at 171 (arguing that judges need to remember "what rulemaking agencies are" and need to stop treating them "as if they were courts instead of subordinate legislatures" free to make law in die face of "diverse and changing political sentiments").
534. See supra Section III.B.
535. See EDLEY, supra note 4, at 21 fig.1;
536. cf. id. at 196-97 (arguing that politics should be accepted as "good politics" only where the political influences "embody the positive attributes like representativeness and accountability").
537. See supra notes 87-92 and accompanying text.
538. See supra notes 110-115 and accompanying text.