As Representative John Dingell remarked in the best sentence ever said on the power of procedure over substance, “I’ll let you write the substance . . . you let me write the procedure, and I’ll screw you every time.”1 Accordingly, designing procedures for legislative rulemaking, a dominant feature of modern governance, has spawned one of the most contentious debates in all of administrative law. Compounding the stakes, over the last fifty years, the courts, with help from Congress and presidents, have relentlessly made rulemaking procedures more burdensome, impeding efforts to preserve the environment, protect workers, and forestall financial collapse, among other important agency missions.
Review for “arbitrariness” is the source of most of the burdens that courts have imposed on agency rulemaking. Modern doctrine, often called “hard look review,” requires an agency to have, at the moment it adopts a rule, a justification strong enough to satisfy the demands of “reasoned decisionmaking.” As a corollary, an agency can never rely on post hoc justifications to save a rule. This requirement of reasoned decisionmaking might itself sound eminently reasonable.
As implemented in rulemaking, however, its demands are highly artificial, force agencies to waste time and resources on developing impenetrable explanations for their rules, encourage regulated parties to bloat the process, and increase the risk of judicial vacation of reasonable rules.
To correct these problems, courts should allow agencies to defend their rules based on post hoc justifications—so long as they are based on information exposed to public scrutiny during the rulemaking process itself. This proposal may sound like administrative law heresy, but it has surprisingly strong roots both in historical and current practice. Adopting it would enhance agency effectiveness without undermining other important values, notably including accountability, fairness, and accuracy, served by current doctrine. The proposal also highlights a better, more flexible conception of “arbitrariness” review. As they discharge this ambiguous task, courts have an ongoing duty to recognize and balance the various competing values served by both rulemaking and its judicial review. Courts should abandon their current rigid orthodoxy and adopt the proposal because, in short, it strikes a better balance among these values.
Sidney A. Shapiro & Richard W. Murphy,
Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the "Hard Look",
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol92/iss1/7