Article by Brian C. Murchison
This is an essay on judicial responses to deregulation in the 1980s. It is not about standard of review, scope of review, intensity of review, depth of review, ‘hard look’ review, or the metaphysics of sliding-scale deference. It also is not about the pros and cons of specific controversies, although some of these will necessarily be mentioned. Rather, it is about what some of the judicial opinions say and what they do not say, and so it concerns how judges choose to write opinions in administrative law cases. Particularly it examines judicial modes of responding to the ‘political’ nature of agency action. That aspect of rulemaking is a taboo subject that for most judges is still waiting to emerge fully from the closet; still, it is an inevitable, if shadowy, presence in litigation stemming from the deregulation of the Reagan first term.
My reading, in brief, is this. First, the type of agency action and the historical moment are important. Much of the deregulation of the early 1980s dated from the first month of the Reagan administration when, following a presidential campaign marked by considerable talk of ‘regulatory relief,’ the President issued Executive Order 12,291. Among other things, the Order stated that ‘regulatory action shall not be undertaken unless the potential benefits to society for the regulation outweigh the potential costs to society;’ it also required review of all pending ‘major rules,’ to the extent lawful, in accordance with the Order. The resulting deregulatory moves of some agencies thus bore the mark of a distinct ‘political’ heritage since the new administration had commanded, if nothing else, an approach to the usefulness of federal regulation that was more explicitly skeptical than that of its predecessor. And in the environment of nonspecific statutes, the agencies seemed to enjoy enough leeway to put this skepticism to work.
In the inevitable judicial review that followed, the ostensible problem was to articulate the appropriate standard of review for cases involving rescission of rules rather than the usual situation, promulgation of rules. Identifying a review standard was the sort of task that, although the context had some novelty, was normal fare in administrative law. It involved a study of the ‘arbitrary and capricious' formulation of the section on judicial review of the Administrative Procedure Act (APA), and consideration of whether deregulation was to be more sensibly compared, for purposes of review, to rulemaking or to administrative inaction. But barely hidden by this mildly interesting question was the far more intriguing problem of how judges should talk about agency actions with visible political heritage. That task was unappetizing fare for judges, for it displayed in stark relief the ‘dense complexity’ of judicial review of political decisions made by unelected executive agents.
The awkwardness of the problem may account for the varied approaches of the judges in the cases discussed in this article. These decisions reveal all-around disagreement on what the ‘political’ element in the cases actually was; how that element should figure into judicial review, if at all; even, it seems, what the word ‘politics' means. But these disagreements are not straightforwardly set forth. In some of the opinions reversing an agency's action, we encounter silence and stammering. Ultimately we become aware of modes of indirection casting doubt on the perceived political path of an agency and prompting future agendas. In other opinions in which the goal is not to contain rule rescission but to uphold it, we detect equally indirect (and interesting) ways of contemplating the political element in deregulation.
This, then, is a study of judicial method—the use of structure, language, and implication in the opinions of five judges as they come into contact with the politics of deregulation. It is a study of how some judges have confronted and other judges have ignored the political heritage of rule rollbacks, how they differ in defining the ‘politics' they see. It is a study of how some write opinions that reflect, if only implicitly, frustration with the blankness of the APA's formulas for review and essentially mount their own ways of dealing with the politics of an agency's deregulatory move. More generally, it may also be a study of response to change—and of the ways in which the instigators of change can become more important to judges than the content of the change itself. First, however, it is necessary to consider other writings on the political nature of some agency rulemaking.
About the Author
Brian C. Murchison. B.A. 1974, J.D. 1979, Yale University. Assistant Professor of Law, Washington and Lee University School of Law.
Citation
60 Tul. L. Rev. 697 (1986)