Depoliticizing Judicial Review of Agency Rulemaking
2009; University of Washington School of Law; Volume: 84; Issue: 3 Linguagem: Inglês
ISSN
1942-9983
Autores Tópico(s)Law, Rights, and Freedoms
ResumoAbstract: Administrative law doctrines for reviewing agency rulemaking, such as Supreme Court's dicta in Motor Vehicle Manufacturers Ass 'n v. State Farm Mutual Automobile Insurance Co.1 and D. C. Circuit's hard look doctrine, give judges significant discretion to invalidate agency rules. Many commentators recognize that this discretion politicizes judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under presidential administration of a different political party. Unelected judges, though, should not be able to use indeterminate administrative law doctrines to invalidate agency rules on basis that they disagree with policy decisions of a presidential administration. This Article argues that Supreme Court's recent decision in FCC v. Fox Television Stations, Inc.2 implicitly eliminated State Farm's dicta and D.C. Circuit's hard look doctrine. In place of these paternalistic doctrines, courts should establish a doctrine for reviewing agency rulemaking that examines only agency's purpose in regulating and means used by agency to achieve that purpose - instead of giving courts leeway to impose additional procedures on agencies and to nitpick rulemaking records. Constitutional doctrines for reviewing legislation already focus on a government actor's purpose and means, so these doctrines should also be used for reviewing agency rules, which are legislative-like pronouncements that are binding with force of law. Ultimately, this Article proposes that courts should review agency rulemaking under standard for reviewing legislation known as basis with bite. Rational basis with bite would require agency, at time it promulgates a rule, to articulate its actual statutory purpose in promulgating rule and explain how rule is rationally related to that purpose. Not only would rational basis with bite significantly limit ability of judges to invalidate agency rules based on policy disagreements, but standard fits well with Supreme Court's precedents on APA arbitrary and capricious review. INTRODUCTION The Obama Administration's largest impact on federal policy may very well come from institutions that are not usually on public's radar screen: administrative agencies. Federal agencies create a substantial majority of country's new laws,3 and [t]here is going to be a huge amount of action in regulatory arena after years of deregulation under President Bush.4 Weeks into office, President Obama directed Environmental Protection Agency (EPA) to reconsider two Bush Administration decisions: (1) preventing states from setting auto emission and fuel efficiency standards that are more stringent than federal standards,5 and (2) adopting less stringent controls on mercury pollution from power plants.6 Similarly, as soon as President Obama took office, Food and Drug Administration (FDA) approved the world's first test in people of a therapy derived from human embryonic stem cells - a clinical trial that had been rejected by Bush Administration.7 Moreover, Obama Administration's Interior Department reversed Bush Administration's plan to allow offshore oil drilling.8 Some also believe that Federal Communications Commission (FCC) under Obama Administration could reinstitute controversial fairness doctrine.9 The Bush Administration anticipated that Obama Administration would overhaul country's administrative regulations, so in final months of President Bush's tenure, his Administration took a series of administrative actions to deregulate various consumer and environmental industries.10 Most would assume that administrative actions of an outgoing president could be overturned by an incoming presidential administration that wants to reverse course on federal regulatory policy. …
Referência(s)