Alexander Mechanick, Policy Advisor, Office of Information and Regulatory Affairs in the Office of Management and Budget, has posted The Interpretive Foundations of Arbitrary or Capricious Review, which is forthcoming in the Kentucky Law Journal:
This Article argues that arbitrary or capricious review would exist even if the Administrative Procedure Act (APA) had never been enacted. Indeed, stretching back to the common law of England, 19th century municipal law, and decades of challenges to federal agency actions preceding the APA, courts were reviewing the reasonableness of actions taken by those vested with government power under similar standards. Because this history has been overlooked, it has commonly been asserted that arbitrary or capricious review at the time of the APA’s enactment meant little more than rational-basis review. Under this standard narrative, it was only decades later that arbitrary or capricious review gained teeth, during the rise of “hard look” review. This Article demonstrates that the standard narrative is wrong. In fact—while arbitrary or capricious review always emphasized the breadth of reasonable disagreement and the need to defer to agencies’ specialized expertise—a strong form of review existed decades before the rise of rational-basis review in the late 1930s, and persisted through the adoption of the APA in 1946. Arising originally as a canon of interpretation, arbitrary or capricious review—even after it was incorporated into statutes—set a binding limit on the unreasonableness with which an agency could wield the discretionary power granted to it. This Article shows that scholars and judges alike will only succeed in creating a clear and workable administrative law jurisprudence when they accept and embrace the interpretive foundations of arbitrary or capricious review.
–Dan Ernst
