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Volumn 62, Issue 2, 2010, Pages 573-582

Politics, rulemaking, and judicial review: A response to professor Watts

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EID: 79959464160     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (6)

References (58)
  • 1
    • 71849096317 scopus 로고    scopus 로고
    • Proposing a place for politics in arbitrary and capricious review
    • available at
    • Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L. J. 2 (2009), available at http://www. yalelawjournal.org/images/pdfs/824.pdf
    • (2009) Yale L. J , vol.119 , pp. 2
    • Watts, K.A.1
  • 2
    • 33044506875 scopus 로고    scopus 로고
    • §, listing the procedural requirements of informal rulemaking
    • 5 U. S. C. § 553 (2006) (listing the procedural requirements of informal rulemaking).
    • (2006) U. S. C. , vol.5 , pp. 553
  • 3
    • 79957505041 scopus 로고    scopus 로고
    • §, A, allowing courts to overrule agency action that is arbitrary and capricious
    • 5 U. S. C. § 706 (2) (A) (2006) (allowing courts to overrule agency action that is arbitrary and capricious).
    • (2006) U. S. C. , vol.5 , Issue.2 , pp. 706
  • 4
    • 84255165047 scopus 로고    scopus 로고
    • 129 S. Ct. 1800 (2009).
    • (2009) S. Ct. , vol.129 , pp. 1800
  • 5
    • 0041088347 scopus 로고    scopus 로고
    • Fierce compromise: The administrative procedure act emerges from new deal politics
    • George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557, 1558 (1996).
    • (1996) Nw. U. L. Rev. , vol.90 , Issue.1558 , pp. 1557
    • Shepherd, G.B.1
  • 6
    • 79959435400 scopus 로고    scopus 로고
    • See id. at, discussing the emergence of the Administrative Procedure Act APA
    • See id. at 1595 (discussing the emergence of the Administrative Procedure Act (APA)).
  • 8
    • 0040494383 scopus 로고
    • Present at the creation: Regulatory reform before 1946
    • K. C. Davis & Walter Gellhom, Present at the Creation: Regulatory Reform Before 1946, 38 ADMIN. L. REV. 511, 520 (1986).
    • (1986) Admin. L. Rev. , vol.38 , Issue.520 , pp. 511
    • Davis, K.C.1    Gellhom, W.2
  • 9
    • 0003632150 scopus 로고    scopus 로고
    • supra note 7, at
    • FINAL REPORT, supra note 7, at 101-02.
    • Final Report , pp. 101-102
  • 10
    • 79959456593 scopus 로고    scopus 로고
    • Watts, supra note 1, at, describing the development of hard look review by the D. C. Circuit
    • Watts, supra note 1, at 16 (describing the development of hard look review by the D. C. Circuit).
  • 11
    • 0003632150 scopus 로고    scopus 로고
    • See, supra note 7, at
    • See FINAL REPORT, supra note 7, at 106.
    • Final Report , pp. 106
  • 12
    • 79959446033 scopus 로고    scopus 로고
    • See id. at
    • See id. at 109
  • 13
    • 79959457148 scopus 로고
    • citing the Federal Food, Drug, and Cosmetic Act of, §, e
    • (citing the Federal Food, Drug, and Cosmetic Act of 1938, 21 U. S. C. § 371 (e) (1940)
    • (1938) U. S. C. , vol.21 , pp. 371
  • 14
    • 79959399954 scopus 로고
    • Fair Labor Standards Act of 1938, §§, a
    • and Fair Labor Standards Act of 1938, 29 U. S. C. §§ 208, 210 (a) (1940)).
    • (1940) U. S. C. , vol.29 , Issue.208 , pp. 210
  • 15
    • 79959459471 scopus 로고    scopus 로고
    • Id. at
    • Id. at 101-02.
  • 16
    • 79959434865 scopus 로고    scopus 로고
    • Id. at
    • Id. at 103.
  • 17
    • 79959486238 scopus 로고    scopus 로고
    • See Watts, supra note 1, at, "If... the evidence would equally support the selection of either Rule A, B, or C, then it would be entirely rational for the agency to rely upon political influences in explaining why it chose Rule C over Rules A or B."
    • See Watts, supra note 1, at 73 ("[I]f... the evidence would equally support the selection of either Rule A, B, or C, then it would be entirely rational for the agency to rely upon political influences in explaining why it chose Rule C over Rules A or B.").
  • 18
    • 79959386643 scopus 로고    scopus 로고
    • Id at
    • Id at 82.
  • 19
    • 79959386109 scopus 로고    scopus 로고
    • Id. at
    • Id. at 58.
  • 20
    • 79959472730 scopus 로고    scopus 로고
    • Id. at
    • Id. at 65.
  • 21
    • 79959397038 scopus 로고    scopus 로고
    • Professor Watts seems confident that reviewing courts could distinguish political influence that "maximized the public good" from "backdoor political tactics."
    • Professor Watts seems confident that reviewing courts could distinguish political influence that "maximize[d] the public good" from "backdoor political tactics."
  • 22
    • 79959451666 scopus 로고    scopus 로고
    • Id. at
    • Id. at 82-84.
  • 23
    • 79959437863 scopus 로고    scopus 로고
    • I am not sure that this is as simple a task as she sets out. Professor Watts hypothesizes that under her conception of arbitrary and capricious review, an Environmental Protection Agency EPA rule that was justified as "consistent with the President's foreign policy initiatives" on global warming would likely survive judicial review, while a Food and Drug Administration FDA that supports a final rule by stating "the President directed us to rescind the preemption regulations in order to reward the trial lawyers" would suffer a remand
    • I am not sure that this is as simple a task as she sets out. Professor Watts hypothesizes that under her conception of arbitrary and capricious review, an Environmental Protection Agency (EPA) rule that was justified as "consistent with the President's foreign policy initiatives" on global warming would likely survive judicial review, while a Food and Drug Administration (FDA) that supports a final rule by stating "[t]he President directed us to rescind the preemption regulations in order to reward the trial lawyers" would suffer a remand.
  • 24
    • 79959404305 scopus 로고    scopus 로고
    • Id. at, 56
    • Id. at 54, 56.
  • 25
    • 79959486237 scopus 로고    scopus 로고
    • general counsel of an FDA that allowed such a statement to sneak into his agency's final order would probably be fired. To support her claim that judicial review could distinguish "public good"-maximizing political influence from "backdoor political tactics", Professor Watts has staffed her hypothetical FDA with straw men
    • The general counsel of an FDA that allowed such a statement to sneak into his agency's final order would probably be fired. To support her claim that judicial review could distinguish "public good"-maximizing political influence from "backdoor political tactics", Professor Watts has staffed her hypothetical FDA with straw men.
  • 26
    • 79959475247 scopus 로고    scopus 로고
    • Id. at
    • Id. at 23.
  • 27
    • 84869680688 scopus 로고    scopus 로고
    • §, note, "The Commission shall review... all of its ownership rules quadrennially.... The Commission shall repeal or modify any regulation it determines to be no longer in the public interest."
    • 47 U. S. C. § 303 note (2006) ("The Commission shall review... all of its ownership rules quadrennially.... The Commission shall repeal or modify any regulation it determines to be no longer in the public interest.").
    • (2006) U. S. C. , vol.47 , pp. 303
  • 28
    • 79959483274 scopus 로고    scopus 로고
    • See, e.g., Petition for Review at 1, Prometheus Radio Project v. FCC, No. 08-3078 3d Cir. July 15, I represent one of the parties in this proceeding
    • See, e.g., Petition for Review at 1, Prometheus Radio Project v. FCC, No. 08-3078 (3d Cir. July 15, 2009). I represent one of the parties in this proceeding.
    • (2009)
  • 29
    • 79959473304 scopus 로고    scopus 로고
    • Letter from P. Michele Ellison, Acting Gen. Counsel, FCC, to Marcia M. Waldron, Clerk, U. S. Court of Appeals for the Third Circuit May 5, on file with author
    • Letter from P. Michele Ellison, Acting Gen. Counsel, FCC, to Marcia M. Waldron, Clerk, U. S. Court of Appeals for the Third Circuit (May 5, 2009) (on file with author);
    • (2009)
  • 30
    • 79959421664 scopus 로고    scopus 로고
    • see also Status Report of the Federal Communications at 3, Prometheus Radio Project v. FCC, No. 08-3078 3d Cir. Oct. 1, the rule under review, "of necessity,... does not incorporate" the views of post-election appointed commissioners emphasis added. Indeed, one Commissioner who was in the majority when the rules under review were promulgated filed his own letter, stating he disagreed with the "alteration of the agency's litigation procedural posture."
    • see also Status Report of the Federal Communications at 3, Prometheus Radio Project v. FCC, No. 08-3078 (3d Cir. Oct. 1, 2009) (the rule under review, "[o]f necessity,... does not incorporate" the views of post-election appointed commissioners (emphasis added)). Indeed, one Commissioner who was in the majority when the rules under review were promulgated filed his own letter, stating he disagreed with the "alter[ation] of the agency's litigation procedural posture."
    • (2009)
  • 31
    • 79959398183 scopus 로고    scopus 로고
    • Letter from Robert M. McDowell, Comm'r, FCC, to Clerk of the Court, U. S. Court of Appeals for the Third Circuit April 3
    • Letter from Robert M. McDowell, Comm'r, FCC, to Clerk of the Court, U. S. Court of Appeals for the Third Circuit (April 3, 2009), http://hraunfoss.fcc. gov/edocs-public/attachmatch/DOC-289974Al.pdf.
    • (2009)
  • 32
    • 79959404881 scopus 로고    scopus 로고
    • Third Circuit rejected the FCC's argument, and the agency must soon defend the rules adopted by the previous majority
    • The Third Circuit rejected the FCC's argument, and the agency must soon defend the rules adopted by the previous majority.
  • 33
    • 79959473305 scopus 로고    scopus 로고
    • See Order, Prometheus Radio Project v. FCC, No. 08-3078 3d Cir. March 23, 2010
    • See Order, Prometheus Radio Project v. FCC, No. 08-3078 (3d Cir. March 23, 2010).
  • 34
    • 79959424865 scopus 로고    scopus 로고
    • Watts, supra note 1, at
    • Watts, supra note 1, at 29.
  • 35
    • 79959418936 scopus 로고    scopus 로고
    • Preserving the Open Internet, Broadband Industry Practices, proposed Nov. 30
    • Preserving the Open Internet, Broadband Industry Practices, 74 Fed. Reg. 62, 638 (proposed Nov. 30, 2009)
    • (2009) Fed. Reg. , vol.74 , Issue.62 , pp. 638
  • 36
    • 79959437865 scopus 로고    scopus 로고
    • to be codified at, pt, The notice of proposed rulemaking and other documents can also be found at the proceeding's home page
    • (to be codified at 47 C. F. R. pt. 8). The notice of proposed rulemaking and other documents can also be found at the proceeding's home page, http://www.openinternet.gov.
    • C. F. R. , vol.47 , pp. 8
  • 37
    • 79959478073 scopus 로고    scopus 로고
    • See, e.g., id. at, 640-43 requesting comment on how to "promote and protect the legitimate business needs of broadband Internet access service providers"; how to "define the scope" of Internet service-providing "entities covered by our proposals"
    • See, e.g., id. at 62, 640-43 (requesting comment on how to "promote and protect the legitimate business needs of broadband Internet access service providers"; how to "defin[e] the scope" of Internet service-providing "entities covered by our proposals";
  • 38
    • 79959476386 scopus 로고    scopus 로고
    • on the "effects of. technology on the content, applications, and services being provided-or capable of being provided-over the Internet"; further, seeking "qualitative or quantitative evidence and analysis" and "specific examples" illuminating, inter alia, "economic theory" on "benefits that can arise from price and quality discrimination"
    • and on the "effects of... technolog[y] on the content, applications, and services being provided-or capable of being provided-over the Internet"; further, seeking "qualitative or quantitative evidence and analysis" and "specific examples" illuminating, inter alia, "economic theory" on "benefits [that] can arise from price and quality discrimination").
  • 39
    • 79959430780 scopus 로고    scopus 로고
    • See, last visited Jan. 29, 2010 supporting "the principle of network neutrality to preserve the benefits of open competition on the Internet"
    • See Obama-Biden Technology Agenda, http://change.gov/agenda/technology- agenda/(last visited Jan. 29, 2010) (supporting "the principle of network neutrality to preserve the benefits of open competition on the Internet");
    • Obama-biden Technology Agenda
  • 40
    • 79959404304 scopus 로고    scopus 로고
    • Obama makes network-neutrality pledge
    • Oct. 29
    • John Eggerton, Obama Makes Network-Neutrality Pledge, BROADCASTING & CABLE, Oct. 29, 2007, http://www.broadcasdngcable.com/article/110976-Obama- Makes-Network-Neutrality-Pledge.php.
    • (2007) Broadcasting & Cable
    • Eggerton, J.1
  • 41
    • 79959437313 scopus 로고    scopus 로고
    • D. C. Circuit recently held that the FCC exceeded its jurisdictional authority when it FCC cited Comcast for the company's management of Internet traffic. The decision, Comcast v. FCC, No. 08-1291 D. C. Cir. Apr. 6, has obvious implications for the Administration's policy goals in this area. However, I do not believe Professor Watts's argument could be extended to grant agencies politics-based deference when the agency asserts jurisdiction over areas where a political priority has been expressly stated since an agency's interpretation of its jurisdiction is a legal question rather than an evidentiary one
    • The D. C. Circuit recently held that the FCC exceeded its jurisdictional authority when it FCC cited Comcast for the company's management of Internet traffic. The decision, Comcast v. FCC, No. 08-1291 (D. C. Cir. Apr. 6, 2010), has obvious implications for the Administration's policy goals in this area. However, I do not believe Professor Watts's argument could be extended to grant agencies politics-based deference when the agency asserts jurisdiction over areas where a political priority has been expressly stated since an agency's interpretation of its jurisdiction is a legal question rather than an evidentiary one.
    • (2010)
  • 42
    • 79959429934 scopus 로고    scopus 로고
    • See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., D. G. Cir, "A party will normally forfeit an opportunity to challenge an agency rulemaking on a ground that was not first presented to the agency for its initial consideration. "
    • See Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D. G. Cir. 2005) ("[A] party will normally forfeit an opportunity to challenge an agency rulemaking on a ground that was not first presented to the agency for its initial consideration. ").
    • (2005) F.3d , vol.429 , Issue.1136 , pp. 1150
  • 43
    • 79959413481 scopus 로고    scopus 로고
    • FCC v. Fox Television Stations, Inc., internal quotation marks omitted. Indeed, Justice Scalia paid little mind to the FCC's feeble attempt to reconcile its new policy with its prior regime, which the agency viewed as necessary under its view of arbitrary and capricious review, but which he viewed as irrelevant under the APA's text
    • FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1812 (2009) (internal quotation marks omitted). Indeed, Justice Scalia paid little mind to the FCC's feeble attempt to reconcile its new policy with its prior regime, which the agency viewed as necessary under its view of arbitrary and capricious review, but which he viewed as irrelevant under the APA's text.
    • (2009) S. Ct. , vol.129 , Issue.1800 , pp. 1812
  • 44
    • 79959428807 scopus 로고    scopus 로고
    • Id. characterizing the Commission's attempt to reconcile the old and new fleeting expletives policies as "superfluous", "irrelevant", an "unnecessary detour", and not "entirely convincing"
    • Id. (characterizing the Commission's attempt to reconcile the old and new fleeting expletives policies as "superfluous", "irrelevant" , an "unnecessary detour", and not "entirely convincing").
  • 45
    • 79959484952 scopus 로고    scopus 로고
    • Not every Justice appreciated the rule-policy distinction in the case's particular context
    • Not every Justice appreciated the rule-policy distinction in the case's particular context.
  • 46
    • 79959481131 scopus 로고    scopus 로고
    • See id. at, Stevens, J., dissenting "The Court espouses the novel proposition that the Commission need not explain its decision to discard a longstanding rule in favor of a dramatically different approach to regulation. "
    • See id. at 1825 (Stevens, J., dissenting) ("[T]he Court espouses the novel proposition that the Commission need not explain its decision to discard a longstanding rule in favor of a dramatically different approach to regulation. ").
  • 47
    • 79959401566 scopus 로고    scopus 로고
    • Id. at, plurality opinion
    • Id. at 1819 n. 8 (plurality opinion).
    • , Issue.8 , pp. 1819
  • 48
    • 79959383712 scopus 로고    scopus 로고
    • Id. at, Breyer. J., dissenting
    • Id. at 1837-38 (Breyer. J., dissenting).
  • 49
    • 79959407527 scopus 로고    scopus 로고
    • Id. at, majority opinion "There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them.... It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained such as data regarding the passive restraints in State Farm. It is something else to insist upon obtaining the unobtainable." citation omitted
    • Id. at 1813 (majority opinion) ("There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them.... It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained [such as data regarding the passive restraints in State Farm]. It is something else to insist upon obtaining the unobtainable." (citation omitted)).
  • 50
    • 79959394643 scopus 로고    scopus 로고
    • See id. at, Kennedy, J., concurring in part and concurring in the judgment "The FCC did not base its prior policy on factual findings."
    • See id. at 1824 (Kennedy, J., concurring in part and concurring in the judgment) ("The FCC did not base its prior policy on factual findings.").
  • 51
    • 79959412907 scopus 로고    scopus 로고
    • Id. at, plurality opinion
    • Id. at 1817 (plurality opinion).
  • 52
    • 79959423276 scopus 로고    scopus 로고
    • Id. at, Breyer. J., dissenting
    • Id. at 1837 (Breyer. J., dissenting)
  • 53
    • 79959414012 scopus 로고
    • quoting ACLU v. FCC, D. C. Cir, emphasis omitted
    • (quoting ACLU v. FCC, 823 F.2d 1554, 1581 (D. C. Cir. 1987)) (emphasis omitted).
    • (1987) F.2d , vol.823 , Issue.1554 , pp. 1581
  • 54
    • 79959412910 scopus 로고    scopus 로고
    • Id. at, & 1816, plurality opinion
    • Id. at 1815-16 & 1816 n. 4 (plurality opinion).
    • , Issue.4 , pp. 1815-1816
  • 55
    • 79959441984 scopus 로고    scopus 로고
    • Id. at
    • Id. at 1816 n. 5.
    • , Issue.5 , pp. 1816
  • 56
    • 79959408957 scopus 로고    scopus 로고
    • Id. at, emphases added
    • Id. at 1816-17 (emphases added).
  • 57
    • 79959450544 scopus 로고    scopus 로고
    • Id. at, majority opinion
    • Id. at 1811 (majority opinion).
  • 58
    • 79959427673 scopus 로고    scopus 로고
    • See id. "The statute makes no distinction... between initial agency action and subsequent agency action undoing or revising that action. "
    • See id. ("The statute makes no distinction... between initial agency action and subsequent agency action undoing or revising that action. ").


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