The political turn in American administrative law: Power, rationality, and reasons

Duke Law Journal

Volumn 61, Issue 8, 2012, Pages 1811-1881

  Short, Jodi L ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84864816980     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (203)

1. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009).
2. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
3. See infra Part II.A. But see Judulang v. Holder, 132 S. Ct. 476, 479 (2011) (confirming the ongoing importance of reasoned administrative decisionmaking). Although Judulang v. Holder, 132 S. Ct. 476 (2011), might be read to cabin the more radical implications of Fox, the Fox decision nonetheless suggests the conditions under which some members of the Court might be willing to accept political justifications as reasonable, and it has motivated an independent body of scholarship pressing for the broader acceptance of political reason giving. See infra Part II.B.
4. See Nina A. Mendelson, Disclosing "Political" Oversight of Agency Decision Making, 108 MICH. L. REV. 1127, 1130 (2010) ("We should require that a significant agency rule include at least a summary of the substance of executive supervision.").
5. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 8 (2009) ("[W]hat count as 'valid' reasons under arbitrary and capricious review should be expanded to include certain political influences . . . , so long as the political influences are openly and transparently disclosed in the agency's rulemaking record.").
6. See generally JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS (1938) (advocating expertise as the core justification for the New Deal administrative state).
7. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667 (1975) (chronicling various justifications for the administrative state, including expertise).
8. See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1514 (1992) ("[G]overnment's primary responsibility is to enable the citizenry to deliberate about altering preferences and to reach a consensus on the common good.").
9. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2331-46 (2001).
10. Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (2006).
11. Judulang v. Holder, 132 S. Ct. 476, 483-84 (2011).
12. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009).
13. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)) (internal quotation marks omitted).
14. RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW 82 (2008).
15. See Enrique Armijo, Politics, Rulemaking, and Judicial Review: A Response to Professor Watts, 62 ADMIN. L. REV. 573, 574-79 (2010) (arguing that political reason giving is contrary to the goal of the comment process in that it undermines the importance of citizen participation and evidence-based decisionmaking).
16. Stephen M. Johnson, Disclosing the President's Role in Rulemaking: A Critique of the Reform Proposals, 60 CATH. U. L. REV. 1003, 1033 (2011) (arguing that courts might have difficulty discerning what weight to give to political factors and that this difficulty might lead to more uncertainty in judicial review).
17. Glen Staszewski, Political Reasons, Deliberative Democracy, and Administrative Law, 97 IOWA L. REV. 849, 893-97 (2012) (arguing that political reason giving may undermine deliberative democracy).
18. See, e.g., DANIEL P. CARPENTER, THE FORGING OF BUREAUCRATIC AUTONOMY: REPUTATIONS, NETWORKS, AND POLICY INNOVATION IN EXECUTIVE AGENCIES, 1862-1928, at 5 (2001) (arguing that an agency's autonomy and influence are dependent on the network of interests in which it is embedded).
19. Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 DUKE L.J. 377, 383-84 (2006) (exploring how the delegation of regulatory interpretation to regulated private firms shapes agency accountability).
20. Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation of Powers, 59 EMORY L.J. 423, 426 (2009) (discussing the interrelationship between separation-of-powers doctrine and institutional constraints on the executive branch).
21. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CALIF. L. REV. 1655, 1675-91 (2006) (describing how the structure of the intelligence bureaucracy shapes the nature and efficacy of administrative national-security policies).
22. see also Mariano-Florentino Cuéllar, "Securing" the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953, 76 U. CHI. L. REV. 587, 591 (2009) (demonstrating how the organizational structure of the Federal Security Agency enhanced presidential control).
23. See Administrative Procedure Act § 8(b), 5 U.S.C. § 557(c)(3)(A) (2006) ("All [agency] decisions [with respect to procedures requiring a hearing] . . . shall include a statement of . . . findings and conclusions, and the reasons or basis therefor . . . .").
24. SEC v. Chenery Corp., 318 U.S. 80 (1943).
25. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
26. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)) (internal quotation marks omitted).
27. Hard-look review is a doctrinal framework that developed in the D.C. Circuit during the 1970s and that was generally perceived as increasing the stringency with which courts reviewed agency decisions. Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 406. Some have characterized it as requiring courts to take a hard look at the substance of an agency's decision and the process through which that decision was adopted.
28. There is some controversy over which version the Court adopted and whether the Court's version is as stringent as the D.C. Circuit's. See, e.g., Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm'n, 547 F.2d 633, 655 (D.C. Cir. 1976) ("The Commission's action in cutting off consideration of waste disposal and reprocessing issues in licensing proceedings based on the cursory development of the facts which occurred in this proceeding was capricious and arbitrary."), rev'd sub nom. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978).
29. Ethyl Corp. v. EPA, 541 F.2d 1, 55, 66-67 (D.C. Cir. 1976) (affording "careful and exhaustive" consideration to proposed Environmental Protection Agency regulations).
30. Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 649 (D.C. Cir. 1973) (remanding for further proceedings an agency's decision to deny a suspension of the requirements of the Clean Air Act, 42 U.S.C. §§ 1857-1857l (1970), with respect to a truck manufacturer). And some commentators argue that State Farm should not be read to have adopted hard-look review at all.
31. E.g., Scott A. Keller, Depoliticizing Judicial Review of Agency Rulemaking, 84 WASH. L. REV. 419, 452-57 (2009). I do not address these debates here, but I note that it is conventional in the literature to refer to the State Farm standard as hard-look review.
32. E.g., Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1777-78 (2007).
33. E.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 49 (1993).
34. CARNEGIE COMM'N ON SCI., TECH. & GOV'T, RISK AND THE ENVIRONMENT: IMPROVING REGULATORY DECISION MAKING 107 (1993).
35. JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 199, 224-55 (1990).
36. Jerry L. Mashaw & David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 YALE J. ON REG. 257, 262 (1987).
37. Thomas O. McGarity, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 TEX. L. REV. 525, 532-36 (1997).
38. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1419, 1444 (1992) [hereinafter McGarity, Some Thoughts].
39. Richard J. Pierce, Jr., The APA and Regulatory Reform, 10 ADMIN. L.J. AM. U. 81, 83 (1996).
40. Richard J. Pierce, Jr., Judicial Review of Agency Actions in a Period of Diminishing Agency Resources, 49 ADMIN. L. REV. 61, 72 (1997) [hereinafter Pierce, Judicial Review of Agency Actions].
41. Richard J. Pierce, Jr., Seven Ways To Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 65 (1995) [hereinafter Pierce, Seven Ways].
42. Richard J. Pierce, Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 37 DUKE L.J. 300, 301 (1988).
43. Richard J. Pierce, Jr., The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s, 43 ADMIN. L. REV. 7, 8 (1991).
44. Jerry L. Mashaw, Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance, 76 GEO. WASH. L. REV. 99, 103 (2007).
45. Martin Shapiro, The Giving Reasons Requirement, 1992 U. CHI. LEGAL F. 179, 181.
46. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 529 (2003) ("[T]he [reasoned-decisionmaking] requirement may promote accountability by ensuring public participation in or oversight of the administrative process. It may even coincide with political control of the administrative process.").
47. Glen Staszewski, Reason-Giving and Accountability, 93 MINN. L. REV. 1253, 1278 (2009).
48. see also Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (remanding the case for lack of a record of the reasons for the agency decision).
49. See, e.g., Cary Coglianese, Litigating Within Relationships: Disputes and Disturbance in the Regulatory Process, 30 LAW & SOC'Y REV. 735, 736-37 (1996) (describing how litigation can be part of an ongoing relationship between interest groups and regulators).
50. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 657 (1995).
51. Jerry L. Mashaw, Small Things Like Reasons Are Put in a Jar: Reason and Legitimacy in the Administrative State, 70 FORDHAM L. REV. 17, 25 (2001).
52. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 34-36 (1983).
53. MARTHA DERTHICK & PAUL J. QUIRK, THE POLITICS OF DEREGULATION 30 (1985).
54. State Farm, 463 U.S. at 51-52 (majority opinion).
55. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009).
56. 18 U.S.C. § 1464 (2006).
57. Act of June 25, 1948, ch. 645, § 1464, 62 Stat. 683, 769 (codified as amended at 18 U.S.C. § 1464 (2006)).
58. See Fox, 129 S. Ct. at 1809 (discussing the FCC's departure from the safe-harbor policy).
59. Complaints Against Various Broad. Licensees Regarding Their Airing of the "Golden Globe Awards" Program, 19 FCC Rcd. 4975, 4980 (2004) ("While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent or would not be acted upon, . . . we conclude that any such interpretation is no longer good law.").
60. Fox, 129 S. Ct. at 1807.
61. Complaints Against Various Broad. Licensees, 19 FCC Rcd. at 4976 n.2.
62. Complaints Against Various Broad. Licensees, 19 FCC Rcd. 4975 (2004).
63. Complaints Regarding Various Television Broads. Between Feb. 2, 2002 & Mar. 8, 2005, 21 FCC Rcd. 13,299, 13,329 (2006).
64. See Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 446-47 (2d Cir. 2007) (explaining that Fox was challenging the FCC's "notices of apparent liability" on, among others, administrative grounds and holding that the change in policy was arbitrary and capricious because "the FCC ha[d] failed to articulate a reasoned basis for this change in policy"), rev'd, 129 S. Ct. 1800 (2009).
65. Complaints Against Various Broad. Licensees, 19 FCC Rcd. at 4978 (2004) ("[W]e believe that, given the core meaning of the 'F-word,' any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition.").
66. Complaints Regarding Various Television Broads., 21 FCC Rcd. at 13,308.
67. Complaints Against Various Broad. Licensees, 19 FCC Rcd. at 4980.
68. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (2009).
69. Note that this position stands in stark contrast to the Court's approach in State Farm, in which a majority suggested that the DOT should conduct its own studies to resolve gaps and conflicts in existing research. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 53-54 (1983) (urging the National Highway Traffic Safety Administration to "bring its expertise to bear" on gaps in industry studies regarding the effect of inertia on the effectiveness of detachable automatic seatbelts).
70. Fox, 129 S. Ct. at 1811.
71. Justice Breyer's dissent, joined by Justices Stevens, Souter, and Ginsberg, discusses the importance of "regulation that does not bend too readily before the political winds." Fox, 129 S. Ct. at 1829-30 (Breyer, J., dissenting).
72. See Judulang v. Holder, 132 S. Ct. 476, 485 (2011) (requiring agencies to limit their statutory scope "in some rational way").
73. See generally CHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY (1990) (providing "a critical exposition of how administrative law shapes governance, especially through judicial review of actions taken by executive branch agencies and departments").
74. It is beyond the scope of this Article to address the suggestion that influences from individual members of Congress might warrant heightened judicial deference toward agency actions.
75. Clean Air Act, 42 U.S.C. §§ 7401-7671q (2006 & Supp. III 2009).
76. See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. PA. J. CONST. L. 313, 315-18 (2010) (describing President Reagan's presidentialism as the "weak theory of the unitary executive").
77. E.g., STEPHEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 14-15 (2008).
78. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 549-50 (1994).
79. Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601, 730 (2005).
80. Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 COLUM. L. REV. 263, 293-96 (2006) (distinguishing between a removal power and directive authority over executive officers).
81. E.g., JOHN P. MACKENZIE, ABSOLUTE POWER: HOW THE UNITARY EXECUTIVE THEORY IS UNDERMINING THE CONSTITUTION 55 (2008) (arguing that the unitary executive is not constitutionally compelled).
82. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 769 (2008) (arguing that, outside the military context, the Constitution does not compel a unitary conception of the executive).
83. Louis Fisher, The Unitary Executive: Ideology Versus the Constitution, in THE UNITARY EXECUTIVE AND THE MODERN PRESIDENCY 17, 17 (Ryan J. Barilleaux & Christopher S. Kelley eds., 2010) ("Although the framers looked to the president to provide responsibility, accountability, and unity, the model of the unitary executive was never adopted or intended . . . .").
84. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 4 (1994).
85. See David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization, 76 GEO. WASH. L. REV. 1095, 1096 (2008).
86. See ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 113-14 (2010) ("[T]he system of elections, the party system, and American political culture constrain the executive far more than do legal rules created by Congress or the courts . . . .").
87. See, e.g., Morrison v. Olson, 487 U.S. 654, 697-734 (1988) (Scalia, J., dissenting) (explaining the fundamental importance of presidential power in the U.S. constitutional scheme and detailing how the independent-counsel provisions of the Ethics in Government Act of 1978, Pub. L. No. 95-521, §§ 601-602, 92 Stat. 1824, 1867-74 (codified as amended at 28 U.S.C. §§ 49, 591-598 (2006)), infringed on this power).
88. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1817 (2009) (plurality opinion) ("There is no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch by letting Article III judges-like jackals stealing the lion's kill-expropriate some of the power that Congress has wrested from the unitary Executive." (citation omitted)).
89. See Nina A. Mendelson, Another Word on the President's Statutory Authority over Agency Action, 79 FORDHAM L. REV. 2455, 2456 (2011) (explaining that even scholars who argue that the president cannot command an agency to issue regulations "concede that the President may oversee and substantially influence agency decisions").
90. Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 696 (2007).
91. See Heidi Kitrosser, The Accountable Executive, 93 MINN. L. REV. 1741, 1758-60 (2009) (discussing the presidential preference for secrecy and unitary-executive theory's support for presidential secrecy).
92. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 125 (1994) (arguing that in an era of presidential administration, Americans must make a greater effort to check the president's power).
93. The fact that the agency has adopted the president's reasons as its own should not change this analysis. As discussed in Part II.B, an agency's invocation of the president's reasons is ultimately to justify its acquiescence to his authority. This is different from the adoption by an agency of reasoning from other nonpresidential sources, such as comments submitted in rulemaking, for instance. Because the agency's adoption of presidential reasons implicates the exercise of presidential authority, political reason giving raises issues analogous to those raised in Franklin v. Massachusetts, 505 U.S. 788 (1992), and Dalton v. Specter, 511 U.S. 462 (1994).
94. See SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) (holding that "an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its actions can be sustained").
95. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 955 (2007) (arguing that Chenery established the bedrock principle of administrative law that the validity of agency action turns on the validity of the contemporaneous justification the agency has supplied for that action).
96. Franklin v. Massachusetts, 505 U.S. 788 (1992).
97. Dalton v. Specter, 511 U.S. 462 (1994).
98. Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510, tit. XXIX, pt. A, 104 Stat. 1808 (codified as amended at 10 U.S.C. § 2687 note (2006)).
99. Dalton, 511 U.S. at 470.
100. See Jack Goldsmith & John F. Manning, The President's Completion Power, 115 YALE L.J. 2280, 2282 (2006) (describing "the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of any congressional authorization to complete that scheme" as "the President's completion power").
101. U.S. CONST. art. III, § 1 ("The judicial Power of the United States shall be vested in . . . such inferior Courts as the Congress may from time to time ordain and establish.").
102. see also Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) ("Courts created by statute can have no jurisdiction but such as the statute confers. . . . The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by [the lower courts].
103. consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.").
104. Administrative Procedure Act § 10(e), 5 U.S.C. § 706 (2006).
105. Cf. MERRIAM-WEBSTER DICTIONARY 64 (11th ed. 2004) (defining the word "arbitrary" as "depending on individual discretion").
106. Judulang v. Holder, 132 S. Ct. 476, 486 (2011).
107. See Gregory Klass, Meaning, Purpose, and Cause in the Law of Deception, 100 GEO. L.J. 449, 460-65 (2012) (stating that "purpose-based" laws achieve this objective).
108. ARCHON FUNG, MARY GRAHAM & DAVID WEIL, FULL DISCLOSURE: THE PERILS AND PROMISE OF TRANSPARENCY 24-28 (2007).
109. See, e.g., 7 U.S.C. § 1638a (2006) (requiring retailers of covered commodities to inform consumers of a commodity's country of origin).
110. 20 U.S.C. § 1092(f) (2006) (requiring colleges and universities to report crime statistics for the previous three years and to describe their crime-prevention programs and procedures for handling sex crimes).
111. 42 U.S.C. § 11023(g)(1)(C)(iii)-(iv) (2006) (requiring regulated facilities to report annually the total amounts of regulated chemicals released into the air, soil, surface water, and offsite locations).
112. CAL. HEALTH & SAFETY CODE § 25249.6 (West Supp. 2012) (requiring any person in the course of business to give a warning if she is aware that an individual will be exposed to a chemical known to cause cancer or reproductive toxicity).
113. 21 C.F.R. § 101.9 (2011) (requiring nutrition labeling on food packaging).
114. See, e.g., 17 C.F.R. § 240.14a-3 (2011) (providing that a solicitation cannot be made without first disclosing all relevant information to all shareholders).
115. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. PA. L. REV. 647, 709 (2011).
116. See generally GEORGE LAKOFF, MORAL POLITICS: HOW LIBERALS AND CONSERVATIVES THINK (2d ed. 2002) (arguing that political preferences are determined by deeply ingrained cognitive structures that can be triggered by political rhetoric).
117. DREW WESTEN, THE POLITICAL BRAIN: THE ROLE OF EMOTION IN DECIDING THE FATE OF THE NATION (2007) (providing evidence from clinical-psychology research on the emotional basis of political decisionmaking).
118. Although it is true that the media have demanded information in certain high-profile, politicized administrative decisions, such as OIRA's refusal to open an e-mail from EPA regarding its greenhouse-gas-endangerment finding during President George W. Bush's administration or President Barack Obama's request that the EPA withdraw its final National Ambient Air Quality Standard for ozone pollution, it is not clear that the catalyst for these demands was voting citizens. Moreover, even if the demand is citizen-driven, the fact that events such as these have been widely reported in the popular press suggests that the information is available and is being disseminated in fora that are far more accessible to citizens than court filings or Federal Register notices.
119. see also Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 HARV. L. REV. 1420, 1440-44 (1999) (arguing that consumers do not understand and are often tricked by disclosed numbers).
120. Paul Slovic, Perception of Risk, 236 SCIENCE 280, 281 (1987) (arguing that individuals' nonnumerical perceptions of risk affect outcomes).
121. see also Cass R. Sunstein, Informing America: Risk, Disclosure, and the First Amendment, 20 FLA. ST. U. L. REV. 653, 667 (1993) (observing that, because of the way people process information, risk disclosure can cause people to dramatically overestimate risks).
122. The Toxic Release Inventory, created by the Emergency Planning and Community Right-To-Know Act of 1986, Pub. L. No. 99-499, 100 Stat. 1728 (codified as amended at 42 U.S.C. §§ 11001-11050 (2006)), created a publicly available database containing information on toxic chemical releases emitted by industrial facilities in the United States. E.g., Am. Chem. Council v. Johnson, 406 F.3d 738, 738 (D.C. Cir. 2005).
123. JAMES T. HAMILTON, REGULATION THROUGH REVELATION: THE ORIGIN, POLITICS, AND IMPACTS OF THE TOXICS RELEASE INVENTORY PROGRAM 230-31 (2005).
124. MICHAEL E. KRAFT, MARK STEPHAN & TROY D. ABEL, COMING CLEAN: INFORMATION DISCLOSURE AND ENVIRONMENTAL PERFORMANCE 53-55 (2011).
125. Whether the political reasons that agencies give are likely to tell Americans anything they do not already know, at least at some level of abstraction, about political involvement in administration is unclear. Ordinary citizens have proven quite capable of attributing administrative actions to the political and values-based motives of the president. See, e.g., Molly Worthen, Leaps of Faith, N.Y. TIMES, CAMPAIGN STOPS BLOG (Mar. 1, 2012, 10:23 PM), http://campaignstops.blogs.nytimes.com/2012/03/01/leaps-of-faith (describing how a decision by the U.S. Department of Health and Human Services to require most nonchurch employers to provide their employees with insurance that covers birth control was viewed by many as an effort by President Obama to oppress religious expression and undermine religious values in favor of his own and his supporters' secular values).
126. Research has also suggested that citizens' perceptions of the president's values-based motives for policy already influence their electoral decisions, perhaps even more than their economic or material interests. JONATHAN HAIDT, THE RIGHTEOUS MIND: WHY GOOD PEOPLE ARE DIVIDED BY POLITICS AND RELIGION (2012).
127. An agency's disclosure that a particular decision was influenced in a particular way by the publicregarding value choices of the sitting administration would add little to the existing levels-or accuracy-of public knowledge about political influence, given information-processing and comprehension constraints. Worse, a political reason-giving model that credited only publicregarding political reasons would be unlikely to elicit additional information from agencies about the less savory political motivations behind agency actions.
128. BLACK'S LAW DICTIONARY 531 (9th ed. 2009).
129. See Michael Spence, Signaling in Retrospect, 92 AM. ECON. REV. 434, 436-39 (2002) (illustrating the basic signaling model in the job market, in which a potential employee's level of education is used as a proxy for that potential employee's future productivity).
130. See Robert H. Gertner, Disclosure and Unravelling, in 1 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 605, 605-06 (Peter Newman ed., 1998) ("The foundation of the theory of verifiable-information disclosure is the unravelling result. The unravelling result is simply that if certain conditions[-including costless information transmission-]hold, all verifiable information will be revealed.").
131. Vijay Krishna & John Morgan, Cheap Talk, in 1 THE NEW PALGRAVE DICTIONARY OF ECONOMICS 751, 751-52 (Steven N. Durlauf & Lawrence E. Blume eds., 2d ed. 2008).
132. ERIC A. POSNER, LAW AND SOCIAL NORMS 20-21 (2002). In the classic example, usedcar dealers tend to rely on signals rather than disclosure to communicate the truth to consumers about the quality of their cars. Because it is difficult for inexpert consumers to confirm the veracity of direct claims about auto quality, they tend to rely on the sellers' actions, such as their willingness to offer warranties on their cars, to ascertain its quality.
133. Cf. George Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q.J. ECON. 488 (1970) (using the used-car market to illustrate problems posed by asymmetry of information between the buyer and the seller and observing that warranties can "counteract" the effects of quality uncertainty").
134. Michael W. Toffel & Jodi L. Short, Coming Clean and Cleaning Up: Does Voluntary Self-Reporting Indicate Effective Self-Policing?, 54 J.L. & ECON. (forthcoming 2012) (arguing that voluntary programs that offer firms rewards for self-regulating are likely to be ineffective). Conceivably, courts faced with an ongoing parade of commendable political reasons might begin to question those reasons' veracity, but Professor Watts's model provides no account of the mechanism by which mere questioning might discipline agencies into providing negative information about themselves. And the model does not explain or justify the power of judges and litigants to inquire into undisclosed political reasons for agency action.
135. See Joel D. Bush, Congressional-Executive Access Disputes: Legal Standards and Political Settlements, 9 J.L. & POL. 719, 719 (1993) ("Executive privilege is based on the constitutional doctrine of separation of powers and exempts the executive branch from certain disclosure requirements if an exemption is necessary for carrying out important executive responsibilities that are part of official government duties.").
136. see also Stephen C.N. Lilley, Suboptimal Executive Privilege, 2009 BYU L. REV. 1127, 1132 (describing the courts' tendency to abstain from disputes over executive privilege).
137. But see United States v. Nixon, 418 U.S. 683, 711 (1974) (holding that executive privilege, although "constitutionally based," does not override the right to production of all evidence in a criminal trial).
138. see also Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 YALE L.J. 51, 110-11 (1994) (quoting the "complete candor and objectivity" language in support of the same assertion).
139. see also Joshua D. Blank, Overcoming Overdisclosure: Toward Tax Shelter Detection, 56 UCLA L. REV. 1629, 1632 (2009) (arguing that a broad mandate to disclose certain tax-shelter transactions led to overdisclosure by taxpayers, hampering Internal Revenue Service enforcement efforts).
140. This particular political platitude was taken from Mitt Romney's presidential-campaign website. Jobs and Economic Growth, ROMNEY: BELIEVE IN AMERICA, http://www.mittromney.com/jobs (last visited Apr. 11, 2012).
141. Richard Craswell, Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere, 92 VA. L. REV. 565, 566 (2006).
142. The relevant information should be crisp and simple. Any disclosure requirements should attend to difficulties in processing information.").
143. See, e.g., Matthew C. Stephenson, Bureaucratic Decision Costs and Endogenous Agency Expertise, 23 J.L. ECON. & ORG. 469, 470 (2007) ("[T]he effect of the [cost that an agency must incur to adopt a new regulation] on agency expertise depends on whether the agency would adopt the new regulation if its efforts to acquire additional information are unsuccessful.").
144. Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 ADMIN. L. REV. 753, 755 (2006) [hereinafter Stephenson, A Costly Signaling Theory] (arguing that "judicially-imposed explanation requirements can help reviewing courts overcome their comparative informational disadvantage for reasons that are independent of the (in)ability of courts to understand or verify the substantive content of the justifications advanced by government decisionmakers" and assuming that "the court can use the quality of the government's explanation . . . as a rough proxy for the costs the government incurred in producing this explanation").
145. Matthew C. Stephenson, Evidentiary Standards and Information Acquisition in Public Law, 10 AM. L. & ECON. REV. 351, 377 (2008) ("Allowing action without hard evidence dampens research incentives.
146. Allowing action in the presence of adverse evidence strengthens research incentives.").
147. Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 HARV. L. REV. 1422, 1427 (2011) ("[D]ifferent institutional arrangements (arrangements that are often determined or shaped by law) might affect the production of useful information by government agents.").
148. Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals To Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483, 498-99 (1997).
149. Sidney A. Shapiro, Substantive Reform, Judicial Review, and Agency Resources: OSHA as a Case Study, 49 ADMIN. L. REV. 645, 652 (1997).
150. see also John S. Applegate, Worst Things First: Risk, Information, and Regulatory Structure in Toxic Substances Control, 9 YALE J. ON REG. 277, 286 (1992) ("The government has finite resources with which to investigate problems, develop regulations, and enforce its decisions. A major regulatory initiative that will have a significant economic impact on the regulated industry is likely to be, for that reason alone, highly controversial." (footnote omitted)).
151. For instance, the existence of statutory deadlines may drive investments of agency resources. The existing literature focuses on political support, but its insights may apply more broadly to other strong bases of authority for administrative action, such as statutory or judicially imposed deadlines.
152. Although agencies sometimes invest significant resources in an effort to bulletproof policies that are politically controversial-as opposed to politically well-supported-agencies would be unlikely to engage in such a strategy successfully over the long term and against the wishes of an antagonistic administration.
153. See, e.g., JAYA RAMJI-NOGALES, ANDREW IAN SCHOENHOLTZ & PHILIP G. SCHRAG, REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM (2009) (performing a statistical analysis of outcomes in asylum adjudications and concluding "that the outcome of a refugee's quest for safety in America should be influenced more by law and less by a spin of the wheel of fate that assigns her case to a particular government official").
154. JAMES G. MARCH & JOHAN P. OLSEN, DEMOCRATIC GOVERNANCE 141 (1995) (citations omitted).
155. See LUC BOLTANSKI & LAURENT THÉVENOT, ON JUSTIFICATION: ECONOMIES OF WORTH 41 (Catherine Porter trans., Princeton Univ. Press 2006) (1991) ("Very diverse beings . . . turn out to be connected and arranged in relation to one another in groupings that are sufficiently coherent for their involvement to be judged effective, for the expected processes to be carried out, and for the situations to unfold correctly . . . .").
156. PETER M. BLAU & W. RICHARD SCOTT, FORMAL ORGANIZATIONS: A COMPARATIVE APPROACH 5 (1962).
157. See HERBERT A. SIMON, ADMINISTRATIVE BEHAVIOR: A STUDY OF DECISIONMAKING PROCESSES IN ADMINISTRATIVE ORGANIZATIONS 102-03 (1948) (describing the mechanisms "organization[s] employ[] to influence the decisions of individual members").
158. See James G. March & Johan P. Olsen, The New Institutionalism: Organizational Factors in Political Life, 78 AM. POL. SCI. REV. 734, 738 (1984) (describing how organizational structure and procedure help support political institutions).
159. See, e.g., SERGE TAYLOR, MAKING BUREAUCRACIES THINK: THE ENVIRONMENTAL IMPACT STATEMENT STRATEGY OF ADMINISTRATIVE REFORM 6 (1984) (arguing that "[e]nvironmental analysts not only help their agency by pointing out legal and political vulnerabilities on environmental issues, but also tend to have distinctive personal values").
160. See CHRISTINE PARKER, THE OPEN CORPORATION: EFFECTIVE SELF-REGULATION AND DEMOCRACY 58-59 (2002) (describing how the value system of an organization is formed to handle issues faced by the organization).
161. Martha S. Feldman & James G. March, Information in Organizations as Signal and Symbol, 26 ADMIN. SCI. Q. 171, 181 (1981).
162. Paul J. DiMaggio & Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields, 42 AM. SOC. REV. 147, 150 (1983).
163. see also FIONA HAINES, CORPORATE REGULATION: BEYOND 'PUNISH OR PERSUADE' 165-66 (1997) (describing how internal compliance helps to decrease workplace-related fatalities).
164. JOSEPH V. REES, REFORMING THE WORKPLACE: A STUDY OF SELF-REGULATION IN OCCUPATIONAL SAFETY 85-174 (1988) (describing corporate responses to the creation of the Occupational Safety and Health Administration).
165. Valerie Braithwaite, The Australian Government's Affirmative Action Legislation: Achieving Social Change Through Human Resource Management, 15 LAW & POL. 327, 341-52 (1993) (looking at corporate compliance with Australia's affirmative-action legislation).
166. JOHN BRAITHWAITE, CORPORATE CRIME IN THE PHARMACEUTICAL INDUSTRY 359 (1984).
167. DAVID P. MCCAFFREY & DAVID W. HART, WALL STREET POLICES ITSELF: HOW SECURITIES FIRMS MANAGE THE LEGAL HAZARDS OF COMPETITIVE PRESSURES 176 (1998).
168. JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS 21 (1989).
169. Martha S. Feldman & Barry T. Pentland, Reconceptualizing Organizational Routines as a Source of Flexibility and Change, 48 ADMIN. SCI. Q. 94, 94 (2003).
170. see also RICHARD M. CYERT & JAMES G. MARCH, A BEHAVIORAL THEORY OF THE FIRM 119 (1992) ("Standard operating procedures are the memory of the organization.").
171. Heather A. Haveman, Between a Rock and a Hard Place: Organizational Change and Performance Under Conditions of Fundamental Environmental Transformation, 37 ADMIN. SCI. Q. 48, 49 (1992).
172. See, e.g., Carol A. Heimer, Explaining Variation in the Impact of Law: Organizations, Institutions, and Professions, in 15 STUDIES IN LAW, POLITICS, AND SOCIETY 29, 45 (Austin Sarat & Susan S. Silbey eds., 1995) (comparing the privileges among members of a healthcare team and observing that physicians have more control over decisionmaking than nurses or social workers).
173. See 2 MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 993-98 (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., Univ. of Cal. Press 1978) (1922) (emphasizing the importance of specialized knowledge in bureaucracies).
174. W. RICHARD SCOTT, ORGANIZATIONS: RATIONAL, NATURAL, AND OPEN SYSTEMS 75 (1981).
175. James G. March & Johan P. Olsen, The Institutional Dynamics of International Political Orders, 52 INT'L ORG. 943, 948 (1998).
176. JAMES G. MARCH & JOHAN P. OLSEN, AMBIGUITY AND CHOICE IN ORGANIZATIONS 19 (1976).
177. See Harrison M. Trice & Janice M. Beyer, Studying Organizational Cultures Through Rites and Ceremonials, 9 ACAD. MGMT. REV. 653, 654 (1984) ("[C]ultural messages . . . express . . . norms and values that proclaim to system members the rightness of certain beliefs and practices over others.").
178. See James G. March & Johan P. Olsen, Institutional Perspectives on Political Institutions, 9 GOVERNANCE 247, 250 (1996) ("Rational action depends on subjective perceptions of alternatives, their consequences, and their evaluations. . . . [I]nstitutional conceptions see such calculations and anticipations as occurring within a broader framework of rules, roles, and identities." (citations omitted)).
179. Dennis A. Gioia & Peter P. Poole, Scripts in Organizational Behavior, 9 ACAD. MGMT. REV. 449, 450 (1984).
180. Christine Oliver, Strategic Responses to Institutional Processes, 16 ACAD. MGMT. REV. 145, 149 (1991).
181. The organization, in achieving its goals, supplies inducements to its members securing their continuing contributions.").
182. See GEORGE A. AKERLOF & RACHEL E. KRANTON, IDENTITY ECONOMICS: HOW OUR IDENTITIES SHAPE OUR WORK, WAGES, AND WELL-BEING 42 (2010) (arguing that pay incentives are less important for a person who "thinks she should work on behalf of the firm" because "[h]er ideal is to exert high effort").
183. DANIEL CARPENTER, REPUTATION AND POWER: ORGANIZATIONAL IMAGE AND PHARMACEUTICAL REGULATION AT THE FDA 48 (2010) ("The identity and esteem of an individual often depend upon wider social evaluations of the organization to which she belongs.").
184. political reason giving diminishes their sphere of power. This calculus underlies my claims in this Section.
185. For a description of the problem of "ossification," see, for example, William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability To Achieve Regulatory Goals Through Informal Rulemaking?, 94 NW. U. L. REV. 393, 394 (2000).
186. Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1285 (1989).
187. Paul R. Verkuil, Comment, Rulemaking Ossification-A Modest Proposal, 47 ADMIN. L. REV. 453, 453 (1995).
188. ERVING GOFFMAN, RELATIONS IN PUBLIC 162-63 (1971) ("The position is being taken, then, that the individual constantly acts to provide information that he is of sound character and reasonable competency.").
189. CHARLES TILLY, WHY? 30 (2006) ("Most of us feel more comfortable challenging the reasons given by taxi drivers than those proposed by physicians. But in either case we are, among other things, negotiating definitions of the relations between us.").
190. C. Wright Mills, Situated Actions and Vocabularies of Motive, 5 AM. SOC. REV. 904, 907 (1940) ("[A]cts often will be abandoned if no reason can be found that others will accept. Diplomacy in choice of motive often controls the diplomat.").
191. As discussed in Part II.B, political reason-giving models would not permit agencies to claim deference merely because "the president made them do it." They would, however, permit agencies to claim deference for actions ordered by the president based on the legitimate reasons articulated by the president. That agencies would cite to reasons articulated by an authority figure rather than to the bald authority of that figure does not change the reasons' status as codes, or citations to authority, in the way that term is used in Professor Tilly's matrix.
192. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 108-09 (arguing that courts play an "expertiseforcing" role when agencies fail to provide a technical justification for their decisions).
193. FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1808-09 (2009).
194. This inquiry does not require that the stories themselves be rational, but rather that it was rational for the agency to have based its decision on the cause-effect account it provided-in other words, that the agency's account explains in a rational way the path from what the agency knew to what the agency did.
195. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 578 (1984).
196. Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 496 (1989).
197. see also John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1952 n.52 (2011) (referring to this proposition as a "functionalist premise").
198. Emily Hammond Meazell, Deference and Dialogue in Administrative Law, 111 COLUM. L. REV. 1722, 1730-43 (2011).
199. See, e.g., WALTER E. DELLINGER, DAWN JOHNSEN, RANDOLPH MOSS, CHRISTOPHER SCHROEDER, JOSEPH R. GUERRA, BETH NOLAN, TODD PETERSON, CORNELIA T.L. PILLARD, H. JEFFERSON POWELL, TERESA WYNN ROSEBOROUGH, RICHARD SHIFFRIN, WILLIAM MICHAEL TREANOR, DAVID BARRON, STUART BENJAMIN, LISA BROWN, PAMELA HARRIS, NEIL KINKOPF, MARTIN LEDERMAN & MICHAEL SMALL, PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL 4 (2004), available at http://www.acslaw.org/files/2004%20programs_ OLC%20principles_white%20paper.pdf.
200. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2319 (2006) ("[T]he collapse of external checks and balances . . . demonstrate[s] the need for internal ones.").
201. David Zaring, Reasonable Agencies, 96 VA. L. REV. 135, 137 (2010).
202. Ronald M. Levin, Hard Look Review, Policy Change, and Fox Television, 65 U. MIAMI L. REV. 555, 574 (2011) (responding to Professor Zaring by distinguishing between the breadth and depth of judicial review).
203. See Jodi L. Short, The Paranoid Style in Regulatory Reform, 63 HASTINGS L.J. 633 (2012) (describing the evolution of economic critiques of regulation over the course of the twentieth century).