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Unpublished Paper
Depoliticizing Judicial Review of Agency Rulemaking
ExpressO (2009)
  • Scott A Keller

Administrative law doctrines for reviewing agency rulemaking currently give judges a significant amount of discretion to invalidate agency rules. Many commentators have recognized that this has politicized judicial review of agency rulemaking, as judges appointed by a president of one political party are more likely to invalidate agency rules promulgated under the 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 the basis that they disagree with the policy decisions of a presidential administration.

This Article therefore argues for the elimination of the Supreme Court’s dicta on the Administrative Procedure Act’s (APA) arbitrary and capricious standard of review in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), and the D.C. Circuit’s hard look doctrine. In their place, courts should establish a doctrine for reviewing agency rulemaking that examines only the agency’s purpose in regulating and the means used by the 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 the force of law.

Ultimately, this Article proposes that courts should review agency rulemaking under the standard for reviewing legislation known as “rational basis with bite.” Rational basis with bite would require the agency, at the time it promulgates a rule, to articulate its actual statutory purpose in promulgating the rule and explain how the rule is rationally related to that purpose. Not only would rational basis with bite significantly limit the ability of judges to invalidate agency rules based on policy disagreements, but the Supreme Court’s precedents on APA arbitrary and capricious review fit quite well with the rational basis with bite doctrine.

Publication Date
March 4, 2009
Citation Information
Scott A Keller. "Depoliticizing Judicial Review of Agency Rulemaking" ExpressO (2009)
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