Regulatory History and Judicial Review

By TODD PHILLIPS & ANTHONY MOFFA. Full Text.

The Administrative Procedure Act (APA) requires federal agencies to simply “incorporate in the rules adopted a concise general statement of their basis and purpose” after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are arbitrary and capricious based on agencies’ contemporaneous rationales. Judge-created doctrines incentivize agencies to rely on these “concise” statements to elucidate their rationales, and, as a result, rulemaking preambles have ballooned in size as agencies seek to insulate themselves from critical courts.

This Article contends that although the APA’s statutory requirement is in tension with this “hard look review” jurisprudence, that need not be the case; the latter can and should accommodate the former. It explains how agencies may supplement their rules’ preambles with memoranda, emails, and even affidavits to reveal their contemporaneous rationales to the courts. This Article concludes by arguing that doing so will not only ensure compliance with congressional intent but also satisfy the needs of courts and provide efficiencies for agencies.