Remedial Discretion and Judicial Supremacy

Section 706 of the Administrative Procedure Act (APA) governs judicial review of agency action. [1] Section 706(2)(A) of the APA instructs the reviewing court to “hold unlawful and set aside” agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” [2] Agency action is likely arbitrary and capricious, the Supreme Court has held, if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” [3] This analysis, known as the “hard look” doctrine, requires that agency action be “reasonable and reasonably explained.” [4] 

Recent cases interpreting §706(2)(A), however, have modified the hard look doctrine. No longer will any explanation suffice to uphold agency action. Some justifications, such as pretextual ones, are doomed from the start. [5] And today, the threat of successful litigation must be factored into the initial rulemaking process, for a federal court may find that lack of oversight to be arbitrary and capricious. [6] Agencies, as a result, must clear a far higher explanatory bar to rationalize choices made in the decision-making process. And the Court, for its part, enjoys enhanced supervisory power over the administrative state. 

Three cases are instructive: Department of Commerce v. New York, [7] Department of Homeland Security v. Regents of the University of California, [8] and Ohio v Environmental Protection Agency. [9] At issue in each case was whether an executive agency violated §706(2)(A) by promulgating or rescinding a rule. In each case, the Court held that the agency ran afoul of the APA. Although the Court faithfully applied the hard look doctrine in these cases, it did so in an intensified manner, demanding a more thorough explanation. By contravening the hard look doctrine’s deferential nature, this development presents important—and unexplored—separation of powers concerns. It presents the question of whether the proper role of the Court is to hold the administrative state to a high explanatory bar. The Constitution’s careful allocation of power is the bedrock of individual liberty and just governance. [10] So any shift in this design warrants scrutiny. This trend, to be sure, is not inherently sinister, nor were these cases necessarily wrongly decided. But while a nuanced hard-look doctrine may facilitate greater political accountability and reasoned decision-making, it is not the Court’s role to police the Executive Branch. [11] 

Traditionally, §706(2)(A) instructs a court to consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” [12] The APA confines judicial review of agency action to “the grounds invoked by the agency.” [13] Those grounds, the Court has held, must be presented with “such clarity as to be understandable.” [14] And it is the agency’s responsibility to “make findings that support its decision, and those findings must be supported by substantial evidence.” [15] Likewise, the agency carries the burden of articulating “any rational connection between the facts found and the choice made,” including “examin[ing] the relevant data and articulat[ing] a satisfactory explanation for its action.” [16, 17] 

This scope of review, though “searching and careful,” is “narrow and a court is not to substitute its judgment for that of the agency.” [18, 19] Nor is a court permitted to evaluate the “wisdom” of agency action, for that would “propel the court into the domain which Congress has set aside exclusively for the administrative agency.” [20] Moreover, a court may not impose any additional procedural requirements on an agency. [21] The Court’s role, in sum, is “simply to ensure that the agency has adequately considered and disclosed” the reasons for its actions. [22] 

Department of Commerce signaled the first variation on the hard look doctrine. In 2018, Secretary of Commerce Wilburn Ross announced his decision to reinstate a citizenship question on the 2020 decennial census questionnaire. The Secretary alleged that adding a citizenship question on the census would provide the Department of Justice with improved citizen voting-age population data to enforce the Voting Rights Act’s ban on diluting the influence of minority voters by depriving them of single-member districts. The issue in this case was whether this decision violated the Constitution’s Enumeration Clause or was otherwise an abuse of the Secretary’s discretion. The Court affirmed the District Court’s determination that the Secretary’s decision was arbitrary and capricious because it rested on a pretextual basis. The Secretary’s decision to reinstate a citizenship question under the guise of enforcing the VRA, the Court reasoned, was “incongruent” and therefore arbitrary and capricious. [23] Justice Thomas, joined by Justice Gorsuch and Justice Kavanaugh, concurred in part and dissented in part, characterizing the Court’s analysis as an “unprecedented departure” that would “transform administrative law.” [24] 

The following term, the Court decided Department of Homeland Security v. Regents of the University of California. In September 2017, Attorney General Jefferson B. Sessions III advised Acting Secretary Elaine C. Duke that the Deferred Action for Childhood Arrivals (DACA), which grants noncitizens a two-year removal forbearance, work authorization, and federal benefits, was unlawful and should be rescinded. The next day, the Acting Secretary acted, issuing a memo rescinding DACA. In June 2018, Secretary Kirstjen M. Nielsen affirmed that conclusion. In Regents, the Court considered whether DACA’s rescission was arbitrary and capricious. 

Although the Court accepted that the Attorney General enjoyed the authority to declare DACA unlawful and that his legal analysis was binding, it was DHS’s role to determine how to proceed in eliminating DACA. It was here that the Acting Secretary violated the APA. By failing to consider the alternative policy choices of retaining forbearance and accommodating certain reliance interests in rescinding DACA, the Court held that the Acting Secretary’s rescission was arbitrary and capricious because she failed to consider an important aspect of the problem. Justice Thomas, joined by Justice Alito and Justice Gorsuch, concurred in the judgment in part and dissented in part. Although the Court appeared to consider “standard principles of administrative law,” the dissent argued that the majority “distorted the APA review process beyond recognition.” [25] 

Lastly, take Ohio v. Environmental Protection Agency. Decided in an emergency posture, the issue in this case was whether challengers to a major Environmental Protection Agency (EPA) rule were entitled to a stay and whether EPA’s denial of 23 State Implementation Plans (SIPs) was arbitrary and capricious. In February 2022, the EPA denied 23 SIPs, a collection of state regulations and documents used to implement, maintain, and enforce the Clean Air Act’s standards. [26] In the EPA’s view, these SIPs were inconsistent with the Clean Air Act’s (CAA) Good Neighbor Provision, which requires states to address interstate air pollution. [27] A few months later, the EPA proposed a Federal Implementation Plan (FIP), a federal plan to help states comply with the CAA’s criteria. [28] But during the notice-and-comment period, which gives the public a period to comment on proposed agency rules before publication, numerous commenters expressed concerns with the FIP. Specifically, the commenters worried that, if certain upwind states fell out of the proposed plan, “the point at which emissions-control measures maximize cost-effective downwind air quality improvements might shift.” [29] Or said another way, if certain states were severed from the rule, the EPA’s cost-benefit analysis would be implemented differently. In the published FIP, however, the EPA did not consider this. And that omission, the Court concluded, meant that the challengers were likely to succeed on their arbitrary and capricious argument. Justice Barrett, joined by Justice Sotomayor, Justice Kagan, and Justice Jackson, dissented. “[W]e can hardly fault EPA,” the dissent countered, “for failing to raise every potentially meritorious defense.” [30] And the majority’s argument that the FIP was inadequately reasoned was procedurally unsound: the commenters, “during the proposal’s comment period,” could not have argued that the final rule was unreasoned simply because it was not yet published. [31] So, to conclude that the EPA acted arbitrarily and capriciously was erroneous. 

While these cases may appear as a faithful application of the hard look doctrine, a close reading suggests otherwise. The doctrine, in its original conception, was a deferential exercise: a court would “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” [32] Yet the bar to satisfy the hard look doctrine’s requirements has been raised. Department of Commerce rendered pretextual explanations insufficient. In Regents, buck-passing explanations met the same fate. And Ohio teaches that the failure to anticipate post-promulgation litigation can amount to arbitrary and capricious decision-making. These cases indicate the emergence of a supercharged version of the hard look doctrine. 

But more, a muscular hard look doctrine reflects judicial hostility toward bureaucracy—a deep fear of the “danger posed by the growing power of the administrative state.” [33, 34] Without doubt, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” [35] Arbitrary and capricious review is, of course, an exercise in statutory interpretation, squarely in the Court’s domain. But courts do not have unbridled authority to ensure that the other branches follow the law. Atextual requirements, even if pursuing a noble cause, cannot warrant an undue expansion of power for one branch. The responsibility to interpret the law, moreover, is not synonymous with being the vanguard of accountability in the administrative decision-making process. And when the Court assumes that role, it becomes “the country’s administrative czar” and “grasps for power.” [36, 37] That is troubling. Congress has entrusted executive agencies—not federal courts—with the authority to administer statutes. When courts override Congress’s judgment by holding the Executive Branch to heightened specificity requirements and clear statement rules, they upset the Constitution’s delicate allocation of authority by aggrandizing the Judiciary and shirking the Legislature. 

None of which is to say that agencies are immune from judicial review or that they should not be held to their word. For that, too, would frustrate the Constitution’s separation of powers. But when courts invalidate agency action for either lacking statutory authority or being arbitrary and capricious, they must take care not to exceed their own authority. If Congress has delegated authority to an agency, it is not the Court’s prerogative to override that judgment. 

Some welcome this development. This “accountability-forcing” model enhances transparency in the administrative decision-making process. [38] It affords the public with greater knowledge of what, how, and why an agency made the decisions that it did. The central question, however, is whether it is the role of the courts to be the arbiter of reasoned decision-making. It is dubious that it is. Now, more than ever, the Court should take care not to encroach on the “domain which Congress has set aside exclusively for the administrative agency.” [39] 

Edited by Joaquin Recinos and Ashley Zhou

[1] 5 U.S.C. §706.

[2] 5 U.S.C. §706(2)(A). 

[3] 463 U. S. 29, 43 (1983). 

[4] FCC v. Prometheus Radio Project, 592 U.S. 414, 417 (2021). 

[5] Eidelson, Benjamin. “Reasoned Explanation and Political Accountability in the Roberts Court.” The Yale Law Journal 130, no. 6 (2021): 1748–1825. 

[6] Lienke, Jack. “Every Court Everywhere All at Once: Ohio v. EPA and the Litigation Multiverse.” Yale Law Journal Forum 135 (2025).

[7] 588 U.S. 752 (2019).

[8] 591 U.S. 1 (2020). 

[9] 603 U.S. 279 (2024).

[10] Morrison v. Olson, 487 U.S. 654, 698 (1988) (Scalia, J., dissenting).

[11] Trump v. CASA, Inc., 606 U.S. 831, 858 (2025). 

[12] Citizens to Protect Overton Park v. Vlope, 401 U.S. 402, 416 (1971).

[13] SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). 

[14] Ibid.

[15] Ibid. 

[16] Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). 

[17] See supra, no. 3. 

[18] See supra, no. 13.

[19] See supra, no. 3. 

[20] See supra, no. 14

[21] Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1977); see also 5 U.S.C. §553. 

[22] Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, 97 (1983). 

[23] Department of Commerce, 588 U.S., at 785. 

[24] Ibid., at 786 (opinion of Thomas, J.). 

[25] 591 U.S., at 40 (opinion of Thomas, J.)

[26] Clean Air Act §110, 42 U.S.C. §7410 

[27] Clean Air Act §110(a)(2)(D)(i), 42 U.S.C. §7410(a)(2)(D)(i). 

[28] Clean Air Act §110(c), 42 U.S.C. §7410(c). 

[29] 603 U.S., at 293. 

[30] Ibid., at 321 (Barrett, J., dissenting). 

[31] Id., at 306. 

[32] Bowman Transportation, Inc. v. Arkansas-Best Freight, 419 U.S. 281, 286 (1974). 

[33] Krent, Harold J. “The Roberts Court’s Review of Administrative Action: Promoting Political Accountability or Intensifying Process Review?” Administrative Law Review Accord 7, no. 1 (2022): 123–133.

[34] City of Arlington v. Federal Communications Commission, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting). 

[35] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

[36] Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 450 (2024) (Kagan, J., dissenting). 

[37] Ibid., at 451. 

[38] See supra, no. 6. 

[39] See supra, no. 14.