Arbitrary and Capricious Review at the Court After FCC v. Prometheus Radio Project: From the Return of “Hard Look” to the “Zone of Reasonableness”
|Topics:||Administrative Law & Regulation • Supreme Court|
The Administrative Procedure Act (APA) instructs courts to “hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This process, known as “arbitrary and capricious review,” has gone through numerous cycles since the enactment of the APA. Over the years, courts have oscillated between so-called “hard look review” and less-exacting forms of scrutiny. Some high-profile Supreme Court decisions during President Donald Trump’s tenure signaled a possible return to the “hard look” doctrine, but the Court’s recent opinion in Federal Communications Commission (FCC) v. Prometheus Radio Project might be a sign that a hands-off approach to arbitrary and capricious review remains the prevailing judicial conception of the APA’s mandate.
One might trace the origins of the “hard look” doctrine to the opinions of Judge Harold Leventhal of the D.C. Circuit in the late 1960s and early 1970s and the Supreme Court’s decision in Citizens to Preserve Overton Park v. Volpe, in which the Court found that the arbitrary and capricious test required the reviewing court to “conduct a substantial inquiry and determine whether the Secretary acted within the scope of his authority, whether his decision was within the small range of available choices, and whether he could have reasonably believed that there were no feasible alternatives.” This new approach culminated in the famous administrative law case of Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance Co., in which the Court halted the U.S. Department of Transportation’s rescission of a car safety regulation on arbitrary and capricious grounds.
By the time the Court decided State Farm, however, the judicial tide was turning. That same term, the Court handed down its opinion in Baltimore Gas & Electric Company v. Natural Resources Defense Council. The case concerned a scientific assumption (the “zero-release” assumption) that the Nuclear Regulatory Commission (NRC) was using for certain licensing decisions. The Court determined that the NRC’s adoption of general rules based in part on the zero-release assumption was not arbitrary or capricious. As Justice O’Connor, writing for the majority, put it: “[A] reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” The Court issued State Farm in June 1983, two and a half weeks after deciding Baltimore Gas, but it was actually moving away from “hard look” review at that point. As Professors Jacob Gersen and Adrian Vermeule point out in their 2016 article Thin Rationality Review, “agencies have won no less than 92 percent of the sixty-four arbitrariness challenges decided on the merits since the 1982 Term.” This record, the professors explain, “embodies an approach to rationality review that is more aware of, and tolerant of, the inescapable limits of rationality when agencies make decisions under uncertainty—the chronic condition of decisionmaking in the administrative state.”
But in two landmark Trump-era cases, Department of Commerce v. New York and Department of Homeland Security v. Regents of the University of California, the Court took a more rigorous approach. Department of Commerce was a case in which the Court considered a handful of challenges to the Secretary of Commerce’s decision to ask about citizenship status on the 2020 Census, while Regents concerned the Trump Administration’s rescission of President Barack Obama’s Deferred Action for Childhood Arrivals immigration policy, better known as “DACA.” In both cases, the Court ruled against the government. Though Chief Justice Roberts described the arbitrary and capricious standard as “deferential” in his majority opinion in Department of Commerce, the Court proceeded to hold up the Secretary’s decision there because it was based on a pretextual rationale. And in Regents, the Court applied State Farm to prevent the Secretary of Homeland Security from rescinding DACA, finding that the agency had failed to consider possible alternatives to a full rescission.
The careful observer might reasonably conclude from Department of Commerce and Regents that hard look was back. But this last term, the Court dispelled any such notions. In FCC v. Prometheus Radio Project, the Court unanimously upheld an FCC order which concluded that three FCC rules were no longer necessary, teeing up these rules for repeal or modification. Writing for the Court, Justice Kavanaugh reformulated the arbitrary and capricious inquiry as “simply ensur[ing] that the agency has acted within a zone of reasonableness.” Where did this “zone of reasonableness” language come from? As Professor Josh Blackman astutely points out, Justice Kavanaugh imported this phrase from his concurrence in part/dissent in part in Regents, applying a framework in Prometheus that the Court implicitly rejected in Regents.
Was Regents (and, by extension, Department of Commerce) merely a one-off, then? The judicial pivot back to deferential review of agency policy judgments suggests that the Court’s administrative law jurisprudence with respect to Trump-era immigration policy was not representative of a trend. Rather, it increasingly looks like the Court simply subjected the Trump Administration to a heightened standard of review on matters related to the implementation of President Trump’s immigration policies—arguably the President’s signature issue. One might say that, given the heated nature of the immigration debates in the public consciousness during the Trump Administration, the Court’s Regents and Department of Commerce decisions represented an effort by Chief Justice Roberts to keep the Court out of politics.
Professor Benjamin Eidelson has suggested an alternative formulation of the underlying rationales of these two cases; “[t]aken on their own terms,” Professor Eidelson writes, “the opinions seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it.” Professor Eidelson urges that the cases suggest the Court’s embrace of an “accountability-forcing” arbitrary and capricious jurisprudence, demanding further explanation from agencies such that the administration in power will “pay the appropriate political price for its discretionary choices.” But in light of Prometheus, will the Court continue to force accountability? Will it reserve a more stringent framework for politically significant agency action, like the rescission of DACA and the addition of a citizenship question to the Census? And if so, is a court the appropriate entity to decide what is politically significant?
For the purpose of judicial review, the APA speaks nothing of political significance. By the plain terms of the law, agency action is agency action, regardless of its centrality to the President’s agenda. But the line from Baltimore Gas to Regents to Prometheus suggests a zigzagging conception of the arbitrary and capricious inquiry. Where the Court will go from here is unclear, but based on Professors Gersen and Vermeule’s findings, Regents appears to have been an aberration. Still, as arbitrary and capricious challenges to various aspects of President Joe Biden’s agenda make their way through the federal courts, it remains to be seen whether the Regents or Prometheus framework will win out.