abstract. In the past two years, the Supreme Court has invalidated two major executive-branch initiatives—the termination of the Deferred Action for Childhood Arrivals (DACA) policy and the addition of a citizenship question to the census—as arbitrary and capricious. Many have cast Chief Justice Roberts’s decisive votes and opinions in these cases as efforts to protect the Court’s public standing by skirting political controversy. Taken on their own terms, however, the opinions seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. And that use of arbitrariness review as a judicial backstop for political accountability is an important jurisprudential development in its own right. For decades, the Court has understood arbitrariness review mainly as a check against bureaucratic blunders, lawlessness, and political interference with agency expertise. But in the DACA and census cases, a narrow majority refashioned this form of review as a tool for forcing an administration to pay the appropriate political price for its discretionary choices.
Through close and context-laden readings of these back-to-back opinions, I surface the “accountability-forcing” form of arbitrariness review that they employ and draw out its significance. Between the two cases, the Roberts-led majority identified three kinds of agency explanations that should be rejected or disfavored on political-accountability grounds: post hoc explanations, buck-passing explanations, and pretextual explanations. Standing alone, these new rules (and new justifications for old ones) have important consequences. But if the shift toward an accountability-centric vision of arbitrariness review continues, it could also lead to renovations of several other administrative-law doctrines—including narrowing the carve-outs from judicial review, undermining the remedy of “remand without vacatur,” and empowering courts to discount agencies’ fallback justifications for their choices.
After laying out the accountability-forcing turn in the Court’s recent cases and sketching its possible ramifications, I consider several grounds for doubt about its propriety and efficacy. Some of these objections, I conclude, have real force. Still, none debunks the core insight that I take to underlie Roberts’s approach: The reasoned explanation requirement can sometimes be deployed not only to ensure rationality and legality in the workings of the administrative state, but to vindicate democratic, political checks on the executive branch as well.
author. Assistant Professor of Law, Harvard Law School. The author served as co-counsel for some respondents in Department of Homeland Security v. Regents of the University of California, which is discussed here; the views expressed here are solely those of the author. For very helpful comments and discussion, I thank Nikolas Bowie, Molly Brady, Richard Fallon, John Goldberg, Lindsay Harrison, Chris Havasy, Daniel Hemel, Howell Jackson, Michael Klarman, Anna Lvovsky, Daphna Renan, Tim Scanlon, Nicholas Stephanopoulos, Matthew Stephenson, David Strauss, workshop participants at the University of Minnesota Law School and Harvard Law School, and the editors of the Yale Law Journal, including Jonathan Liebman, Bianca Herlitz-Ferguson, and Alexander Nabavi-Noori. Abe Kanter, Maura Smyles, and the Harvard Law School Library provided valuable research assistance. This project was supported by the Harvard Law School Summer Research Fund.
According to a familiar picture, the President and his
administration are held accountable in two parallel ways: legally and
politically. Legal accountability comes largely from judicial review under the
Administrative Procedure Act (APA), which authorizes courts to set aside agency
actions that are “arbitrary” or otherwise unlawful. Political accountability operates
through a much more diffuse set of mechanisms—the risk of the President’s
ouster at the next election, the sting of public criticism, the loss of
political capital, the burdens of congressional oversight, and more.
Unlike arbitrariness review, these political checks impose no defined “test.”
But they ensure that agency actions are publicly acceptable, not just legally
permissible, or at least that the decisionmakers bear consequences if their
decisions are not.
Courts engaged in arbitrariness review under the APA have
always been aware of the parallel channel of political accountability, but they
have not traditionally viewed it as their concern. Under the classic
conception, the court’s job is to ensure that an agency’s decision was “based
on a consideration of the relevant factors” and did not involve a “clear error
Such review protects the public from bureaucratic blunders, legal violations,
and (more controversially) political interference with agency expertise. No doubt the mechanisms of political
accountability loom in the background of this process, just as judicial review
looms in the background of politics. And if the APA requires an agency to
facilitate or entertain public input on the front end of its decisionmaking
process, courts will enforce those procedural requirements.
But when it comes to reviewing the agency’s ultimate policy choice, under this
classic conception, a court need not concern itself with any parallel,
political process that the same agency action might (or might not) also have
set in motion.
I argue here that the Supreme Court’s recent decisions have
begun to turn away from this “parallel lines” understanding of political
accountability and arbitrariness review and toward a markedly different one.
Under the emerging model, ensuring robust political accountability is itself
a central concern of arbitrariness review, alongside (or perhaps ahead of)
ensuring the substantive soundness or political neutrality of agency decisions.
Accordingly, courts can and should use
arbitrariness review to force an administration into explaining itself in ways
that facilitate, rather than frustrate, the natural political repercussions of
its choices. Borrowing a page from “political process theory” in constitutional
law, courts applying this approach will give agencies relatively broad
substantive deference—deference based, in part, on the executive branch’s
greater political accountability—but they will guard against efforts to clog
and manipulate the very channels of political accountability themselves.
My argument rests on two cases, both decided in the Court’s
past two Terms, that suggest a new embrace of this “accountability-forcing”
conception of arbitrariness review. The first and more central is Department
of Homeland Security v. Regents of the University of California, in which
the Court invalidated the Trump Administration’s rescission of the Deferred
Action for Childhood Arrivals (DACA) policy. Read closely and in context, I will
argue, Regents reflects an overriding concern to ensure that the Trump
Administration could not rescind DACA without paying the appropriate political
price. That is why the Court stressed that the administration had rested its
decision on a mistaken claim of legal compulsion, rather than an avowed
exercise of discretion. And that is why, when the administration did
offer grounds for rescinding DACA based on immigration policy, the Court
refused to entertain them. Unless the administration was forced to start over,
the Court worried, “the public” would be denied the opportunity to “respond
fully and in a timely manner to [the administration’s] exercise of authority.”
While the Court sought to ground that concern in “foundational principle[s] of
its explicit use of arbitrariness review as a tool for enforcing political
accountability is nearly unprecedented.
And the Court’s express appeal to that value is “nearly”
unprecedented—rather than completely so—only because it had pointed in the same
direction in Department of Commerce v. New York the year before.
There the Courtrebuffed the Secretary of Commerce’s attempt to add a
citizenship question to the 2020 census, reasoning that his only avowed
rationale for that choice (better enforcement of the Voting Rights Act) was
pretextual. An obvious problem with pretextual justifications is that they can
frustrate judicial review. But the Court framed the problem more broadly than
that: “The reasoned explanation requirement of administrative law,” it said, “is
meant to ensure that agencies offer genuine justifications for important
decisions, reasons that can be scrutinized by courts and the interested
By disabling the agency from relying on a pretext for purposes of judicial
review, therefore, the Court was also protecting the distinct, political
channel of accountability that runs from the agency to the public at large.
Again, no prior case had construed the office of the “reasoned explanation
requirement”—an implied corollary of a court’s obligation to review for arbitrariness—to
extend so far.
I have referred to “the Court” throughout the last two paragraphs,
but of course the pivotal figure in this turn is actually its
Chief Justice, John Roberts. Roberts authored the 5-4 opinions in both cases;
he was the only member of the majority to rely solely on his pretext theory in Department
of Commerce; and he was the least obvious member of the majority in Regents
Many have cast Roberts’s aisle-crossing votes in these high-stakes cases as
essentially political—as marks of his “institutionalism,” meaning roughly his
concern to protect the public reputation and perceived neutrality of the Court. It is certainly possible that Roberts’s
approach to these cases was motivated by a desire to skirt political
controversy and burnish the reputation of the institution he leads. But taking
his opinions in Regents and Department of Commerce on their own
terms, they seem less about keeping the Court out of the political thicket and
more about pushing the Trump Administration into it. They reflect a vision of
courts as political ombudsmen—one might even say umpires—who will rarely
second-guess the executive branch’s policy judgments themselves, but who will
police the reason-giving process to ensure that the public has a fair
opportunity to evaluate and respond to those same decisions.
And one need not be naïve about Roberts’s possible
motivations in these cases to think that this vision, taken at face value,
matters. For one thing, it now has a significant foothold in the law. Whatever brought them about, the
Court’s opinions in Regents and Department of Commerce will
require lower courts to reckon with the role of political accountability in
arbitrariness review in new ways. By the same token, they also lend new weight
to arguments of the same kind in future cases before the Court itself. And even
assuming a good bit of motivated reasoning on Roberts’s part, it is always
revealing how a person, once motivated to reach some result, goes about
convincing himself or herself of its soundness. Here, Roberts zeroed in on
political accountability as a central concern of arbitrariness review. With a
majority of the Court keen to rein in perceived excesses of the administrative
state, and Roberts continuing to wield the assignment power (albeit not
necessarily the swing vote), there is good reason to think that the infrastructure
he built could be put to work again sooner rather than later.
Placing this development in its larger jurisprudential
context, moreover, suggests that it is not a deus ex machina but a
logical next step. As many have observed, the arc of prevailing understandings
of judicial review and the administrative state is defined by a tension between
politics and expertise. In stylized form, the story starts
with the emergence of “hard-look review,” exemplified by Motor Vehicles
Association v. State Farm,
as a demand that agencies bring a kind of neutral expertise to bear on even
politically charged problems.
In a later era epitomized by Chevron deference,
the Court shifted toward understanding political responsiveness as a virtue
in agency decisionmaking, one with which courts ought not interfere. Then, a little over a decade ago, Massachusetts v. EPA suggested that the pendulum had swung back toward the older, “expertise-forcing”
vision of judicial review.
But it is now clear
that, thanks to developments within and beyond the Court, this throwback to
technocracy was short-lived—and that some vision more tolerant of political
control will take its place. For one thing, the Court’s conservatives have
never subscribed to the expertise-forcing agenda.
And more fundamentally, the last few presidencies leave little doubt that, as
Kathryn Watts recently observed, “presidential control over the regulatory
state is here to stay.”
As she rightly says, the real question now is how “administrative law
doctrines can and should respond to the new status quo.” The “accountability-forcing” form of
arbitrariness review represents a natural answer to that question emerging at a
natural time. It takes the political nature of many
significant executive-branch decisions entirely for granted, then uses the main
lever at the courts’ disposal—the power to invalidate agency actions as
inadequately reasoned—to try to ensure that those political choices are
justified in a manner that facilitates political accountability for them.
I do not want to overstate the point: Any emerging
development can turn out, in retrospect, to have been a false start. And
predicting the trajectory of the Court’s jurisprudence would be especially
unwise when the Court’s membership has been changing rapidly and the Court
itself has been under unusual political pressures.
Suffice it to say, then, that the Court’s most recent cases point toward a
substantial and intriguing vision of arbitrariness review as a servant of
political accountability and that, for practical and intellectual reasons
alike, this vision well warrants explication and critique.
I will undertake that project over three Parts. Part I
identifies three kinds of explanations that the Roberts-led majority treated as
threats to political accountability in Regents and Department of
Commerce and unpacks the opinions’ responses to each. Part II then
identifies three further directions in which the law of APA review could
plausibly move, spurred by the same concern. Finally, Part III identifies and
tentatively evaluates several objections to the propriety and efficacy of using
arbitrariness review to promote political accountability. The objections make
clear that the accountability-forcing brand of arbitrariness review has both
limits and drawbacks. But, I conclude, they do not negate the idea’s core appeal: Under
the right circumstances, the reasoned explanation requirement can be deployed not
only to ensure rationality and legality in the workings of the administrative
state, but to vindicate democratic, political checks on the executive branch as