In Short:

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.

Abstract

Section 706(2)(A) of the Administrative Procedure Act (APA) is one reason that federal agencies’ actions are subject to “arbitrary [or] capricious” review. But it is not the only reason. This Article reveals that arbitrary or capricious review would exist (in some form) even if the APA had never been enacted. Indeed, the previously overlooked historical record shows that in the APA, Congress incorporated standards of review with centuries-old judicial roots. 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. In each context, courts developed forms of arbitrary or capricious review as a response to disputes focused on whether those who were granted power exceeded their lawful authority.

Because this history has gone unanalyzed, it has been commonly 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. Perhaps reflecting this perspective, some Supreme Court justices have recently sought to weaken arbitrary or capricious 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 insight has deep and growing practical importance as the Supreme Court begins to simultaneously turn away from hard look review and diminish or abandon Chevron deference. Such a doctrinal shift will increasingly infect purportedly narrow questions of statutory interpretation with an obfuscated form of reasonableness review. And the confused jurisprudence it produces will further politicize the judiciary. This Article challenges this doctrinal shift in two ways. First, it shows that a robust form of arbitrary or capricious review has deep historical and theoretical foundations. Second, it reveals that opponents of a robust form of arbitrary or capricious review-if they also oppose Chevron-are in fact committed to an obfuscated form of such review, one that the recent COVID vaccinate-or-test litigation showed is both anachronistic and pernicious. 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.

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