Administrative Law
Department of Commerce v. New York
Administrative law has become the focal point of high-stakes debates about the power of the executive and its relationship to the courts. In the past few years, the Trump Administration has taken executive action that has been challenged in court, including claims under the Administrative Procedure Act1×1. 5 U.S.C. §§ 551, 553â559, 701â706 (2012). (APA) and other aspects of administrative law.2×2. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2403 (2018); Karnoski v. Trump, 926 F.3d 1180, 1186â87 (9th Cir. 2019) (per curiam); Casa De Md. v. U.S. Depât of Homeland Sec., 924 F.3d 684, 690â91 (4th Cir. 2019). One prominent example is the Trump Administrationâs attempt to add a citizenship question to the 2020 census. Last Term, in Department of Commerce v. New York,3×3. 139 S. Ct. 2551 (2019). the Supreme Court held that the asserted reason for the decision to add the question was pretextual, and that the case should be remanded to the agency to develop a new justification.4×4. Id. at 2575â76. The Court had to face a question that has plagued its administrative law doctrine about what role political judgments can and should play in administrative law.5×5. See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2383â85 (2001). The Court has used âhard lookâ review under the APAâs arbitrary and capricious standard in the past to implicitly take into account when a decision is excessively affected by politics.6×6. See Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 96â98. Here, though, the Courtâs holding that the action was illegitimate was based not on the arbitrary and capricious standard but on pretext.7×7. Depât of Commerce, 139 S. Ct. at 2575â76. That is, instead of implying that an illegitimate motivation had been at work, the Court made it clear that there was one. This is one way for courts to address the problem of political judgments, but the decision then seems limited to these particularly egregious facts.
The U.S. Constitution requires a census every ten years, and delegates to Congress the power to determine how this â[e]numerationâ is conducted.8×8. U.S. Const. art. I, § 2, cl. 3. In turn, Congress delegated census taking to the Secretary of Commerce through the Census Act.9×9. 13 U.S.C. § 141(a) (2012). The Census Bureau, within the Department of Commerce, helps the Secretary implement the census. The information gathered through the census is used in several ways, including to âapportion representatives . . .[,] allocate federal funds to the States[,] and . . . draw electoral districts.â10×10. Depât of Commerce, 139 S. Ct. at 2561 (citing Wisconsin v. City of New York, 517 U.S. 1, 5â6 (1996)). The census has also included demographic questions, and on March 26, 2018, Secretary of Commerce Wilbur Ross released a memorandum stating that the 2020 census would include a question about whether each person is a citizen of the United States.11×11. Memorandum from Secây Wilbur Ross to Karen Dunn Kelley, Under Secây for Econ. Affairs (Mar. 26, 2018) (on file with the Harvard Law Review). Secretary Ross explained that the question was necessary so that the Department of Justice (DOJ) could implement the Voting Rights Act12×12. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 52 U.S.C.). (VRA).13×13. Memorandum, supra note 11. Previously, only a sample of households had been asked about citizenship, in part due to the agencyâs concern that asking the question would significantly reduce response rates. Depât of Commerce, 139 S. Ct. at 2561â62.
Several plaintiffs filed suits, and their cases were consolidated.14×14. New York v. U.S. Depât of Commerce, 351 F. Supp. 3d 502, 528 (S.D.N.Y. 2019) (listing governmental and nongovernmental plaintiffs). They argued that the decision violated the APA, the Enumeration Clause of the Constitution, and, for the nongovernmental plaintiffs, the Due Process Clause.15×15. Id. In November 2018, the district court held an eight-day bench trial and concluded that most of the plaintiffs had proved by a preponderance of the evidence that a citizenship question on the census would harm them.16×16. Id. at 516. The district court found that Secretary Ross had âviolated the APA in multiple independent ways,â17×17. Id. but that the plaintiffs could not prove Secretary Ross violated the Due Process Clause, in part because the plaintiffs could not depose the Secretary himself to determine his intent.18×18. Id. at 517. The federal government filed a petition for writ of certiorari before judgment in the Second Circuit, arguing that âbecause the case involved an issue of imperative public importance,â and the census needed to be ready for printing by the end of June 2019, the Supreme Court should take the case without appellate review.19×19. Depât of Commerce, 139 S. Ct. at 2565. The Court granted the petition.20×20. Id.
The Supreme Court affirmed in part, reversed in part, and remanded for further proceedings. Writing for a unanimous Court, Chief Justice Roberts first affirmed the district courtâs determination that the plaintiffs had standing because they had shown that an undercount to the census would likely occur, and at least some of them would lose federal funds as a result.21×21. Id. The Chief Justiceâs opinion also held that the Enumeration Clause did not provide a basis to invalidate Secretary Rossâs decision.22×22. Id. at 2566â67. The Court focused on the Enumeration Clause because the Secretary could not exercise more power than the clause allows (for an enumeration of the population). Id. The Chief Justice was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Because of both âthe early understanding of and long practice under the Enumeration Clause,â the census can ask about citizenship.23×23. Id. at 2567. The Court has rejected challenges to the census where the census activity âbore a âreasonable relationship to the accomplishment of an actual enumeration.ââ24×24. Id. at 2566 (quoting Wisconsin v. City of New York, 517 U.S. 1, 20 (1996)). Chief Justice Roberts stated that the citizenship questionâs constitutionality should not be measured by that standard, because it would ârender every census since 1790 unconstitutional.â25×25. Id. at 2567.
Chief Justice Roberts then addressed the statutory claims. As a threshold matter, he determined that the Secretaryâs decision was judicially reviewable.26×26. Id. at 2569. He was joined by Justices Thomas, Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh. He concluded that the Census Act did not commit decisions about the census to the sole discretion of the Secretary, and the APAâs committed-to-agency-discretion exception should be a limited one.27×27. Id. at 2568. Chief Justice Roberts held that Secretary Rossâs action was not arbitrary or capricious, because in choosing to add a citizenship question to the census, the Secretary made a reasonable decision between policy alternatives in the face of uncertainty.28×28. Id. at 2570â71. He was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. That is, the Secretary should have been able to make the judgment that the tradeoff between a lower response rate and more complete citizenship data was acceptable.29×29. Id. The Court explained that both the district court and Justice Breyerâs dissenting opinion erred by substituting their judgment for that of the agency in concluding that the Secretary should not depart from the recommendations of the Census Bureau.30×30. Id. at 2571. The Census Bureau had suggested using administrative records alone instead of using both the records and asking a citizenship question. Id. at 2569.
The Court also found that the Secretaryâs action did not violate §§ 6(c) or 141(f) of the Census Act, reversing the district court.31×31. Id. at 2571â73. The Court determined that the Secretary did not violate § 6(c) by opting for gathering census information through direct inquiries.32×32. Id. at 2572. 13 U.S.C. § 6(c) (2012) reads: âTo the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) [any other department, agency, or establishment of the Federal Government, or the District of Columbia] or (b) [States, counties, cities, or other units of government, or their instrumentalities, or from private persons and agencies] of this section instead of conducting direct inquiries.â (Emphasis added.) The Court distinguished the statistics described in § 6(c) from âcensus-related citizenship dataâ and ruled that it was within the Secretaryâs discretion to ask directly for citizenship.33×33. Depât of Commerce, 139 S. Ct. at 2572. The Secretary also did not violate § 141(f), which lays out the congressional reporting requirements about the Secretaryâs intentions for the census.34×34. § 141(f) requires the Secretary to submit to the relevant congressional committees a report three years before the census date with the information to be collected; the questions two years before; and a report if any of that information needs to be modified. 13 U.S.C. § 141(f). The Court found that the Secretaryâs March 2018 memorandum sufficed as an explanation for the citizenship question, and that any error was harmless.35×35. Depât of Commerce, 139 S. Ct. at 2572â73.
Finally, Chief Justice Roberts affirmed the district courtâs finding that the Secretaryâs decision was pretextual and should be remanded to the agency.36×36. Id. at 2576. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Four principles governed this holding. First, an agency âmust âdisclose the basisâ of its action.â37×37. Id. at 2573 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167â69 (1962)). Second, courts are âordinarily limited to evaluating the agencyâs contemporaneous explanation in light of the existing administrative record.â38×38. Id. (citing Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549 (1978)). Third, courts cannot reject an agencyâs âstated reasons for acting . . . because the agency might also have had other unstated reasonsâ or a âpolicymaking decision [by the agency] solely because it might have been influenced by political considerations or prompted by an Administrationâs priorities.â39×39. Id. Fourth, if there is a âstrong showing of bad faith or improper behavior,â courts may inquire into the minds of decisionmakers.40×40. Id. at 2573â74 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)).
Ultimately, the Court held that although âno particular step in the process stands out as inappropriate or defective,â the district court was correct in finding that the citizenship question âcannot be adequately explainedâ by the justification attributed to DOJ.41×41. Id. at 2574â75. The Secretary had made repeated requests to agencies that they ask for citizenship information, and Commerce staff ultimately provided much of the language of the request to DOJ.42×42. Id. There was a âdisconnectâ between the decision and the explanation that the Court âcannot ignore.â43×43. Id. at 2575. âIf judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.â Id. at 2576.
Justice Thomas concurred in part and dissented in part.44×44. Id. at 2576 (Thomas, J., concurring in part and dissenting in part). Justice Thomas was joined by Justices Gorsuch and Kavanaugh. He argued that the Courtâs finding of pretext had the potential to âtransform administrative law,â but also manifested âan administration-specific standard.â45×45. Id. He stated that, first, the Courtâs use of pretext did not reflect the law governing judicial review or the presumption of regularity; second, the Court should not have gone âbeyond the administrative record to evaluate pretextâ; and third, even going outside the record, âthat evidence still fails to establish pretext.â46×46. Id. at 2579â81. He closed by observing that the decision should be read âas an aberration.â47×47. Id. at 2584.
Justice Breyer concurred in part and dissented in part.48×48. Id. (Breyer, J., concurring in part and dissenting in part). Justice Breyer was joined by Justices Ginsburg, Sotomayor, and Kagan. He agreed with the Courtâs finding of pretext, but dissented from the Courtâs finding that the Secretaryâs decision was not arbitrary and capricious.49×49. Id. The Secretary ignored the effect that adding the question would have on responsiveness to the census;50×50. Id. at 2587; see also id. at 2590 (âThe upshot is that the Secretary received evidence of a likely drop in census accuracy . . . and he received nothing significant to the contrary.â); id. at 2592â93. he arbitrarily concluded that adding the question was worth even diminished responsiveness;51×51. Id. at 2590. and the reason the Secretary provided was âunconvincing,â especially because there were better ways of obtaining the data.52×52. Id. at 2594.
Justice Alito concurred in part and dissented in part, arguing that the Secretaryâs decision was not judicially reviewable.53×53. Id. at 2597 (Alito, J., concurring in part and dissenting in part). He joined other parts of the opinion in the alternative. Id. at 2606 n.15. Justice Thomas assumed that the Secretaryâs decision was subject to judicial review but noted that Justice Alito âmade a strong argument.â Id. at 2577â78 n.2 (Thomas, J., concurring in part and dissenting in part). Neither the statute nor any other provision had a standard that courts could apply to review the Secretaryâs decision.54×54. Id. at 2597 (Alito, J., concurring in part and dissenting in part). These provisions included 13 U.S.C. § 141(a) (2012), 13 U.S.C. § 195 (2012), and 13 U.S.C. § 6(c) (2012). Id. at 2598â603. Therefore, the decision should be considered one that is typically committed to agency discretion by law.55×55. Depât of Commerce, 139 S. Ct. at 2603â04 (Alito, J., concurring in part and dissenting in part).
In this case, the Court had to face a question that has dogged its administrative law doctrine about what role political judgments can and should play in agency action.56×56. See, e.g., Kagan, supra note 5, at 2380 (arguing that hard look review should be relaxed where presidential involvement is evident). The Court has used âhard lookâ review under the APAâs arbitrary and capricious standard to take into account when a decision is excessively affected by politics. Justice Breyerâs opinion took this approach, and described the factors that led to his decision. But the Courtâs holding was nominally based not on the arbitrary and capricious standard but on pretext. The Court concluded that there was an illegitimate motivation at work, rather than just pointing to a mismatch between the evidence and the action. This is one way for courts to address the problem, but the Courtâs holding seems limited to these particularly egregious facts. This is particularly true because the finding of pretext was followed by a remand to the agency â a puzzling result, except for the fact that the circumstances of the case meant that the agency would not come up with a new pretextual justification.
The question what kinds of political judgments are allowed in administrative decisionmaking is important, and it is one that the Court has grappled with before. One of the strengths of agenciesâ interpretation of statutes is that agencies can bring policy views â within the agency or of the President â to bear on their discretionary interpretation of statutes.57×57. See Christopher F. Edley, Jr., Administrative Law: Rethinking Judicial Control of Bureaucracy 194 (1990); Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1765 (2007) (arguing that Chevron ârecognized that politics is a permissible basis for agency policymakingâ); Kagan, supra note 5, at 2373; see also Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 7 (2009) (arguing that there should be more attention paid to âexploring whether political factors ought to be allowed to validly explain agency rulemaking decisions as a normative matterâ). But see Nina A. Mendelson, Disclosing âPoliticalâ Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127, 1130 (2010) (suggesting that âpresidential, or executive, influence on an agency decision is not clearly good or badâ). But agencies cannot take actions that are excessively politically driven, and it can be difficult for courts to figure out which types of political judgments are acceptable and which are arbitrary and capricious.58×58. Mendelson, supra note 57, at 1141, 1145 (describing how â[c]ertain types of presidential pressure seem clearly out of bounds,â including âinfluence that is aimed at achieving some goal other than service to the public interestâ); Watts, supra note 57, at 53â54 (noting that courts are not, generally, âwilling to embrace raw politics, crass political horse trading, or pure partisanship as factors that could help to legitimize an agencyâs decisionâ). Actions may be impermissibly political where âpresidential influence . . . is inconsistent with the agencyâs legal constraints; . . . prompts the agency to ignore its [expert] conclusionsâ; or if the President is not acting in service of the public interest.59×59. Mendelson, supra note 56, at 1141. If the President pressures an agency to protect an industryâs economic wellbeing where the statute allows for considering economic factors, it may be challenging to disentangle the Presidentâs motivation (for example, if the industry hurt the environment and supported the President for reelection).60×60. See id. at 1145.
âHard lookâ arbitrary and capricious review provides an opportunity for courts to determine if an administrative judgment is impermissibly inflected by politics.61×61. Kagan, supra note 5, at 2270â71. In State Farm,62×62. Motor Vehicle Mfrs. Assân v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). for example, the Court found that a decision by the National Highway Traffic Safety Administration to withdraw a regulation that required passive restraints in cars was arbitrary and capricious.63×63. Id. at 46. The policy change had taken place immediately after a presidential transition, and was viewed as a policy choice that was friendly to the automobile industry.64×64. Id. at 37â38. Concurring in part and dissenting in part, then-Justice Rehnquist argued that â[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agencyâs reappraisal . . . of its programs and regulations.â65×65. Id. at 59 (Rehnquist, J., concurring in part and dissenting in part). He wanted to create more space for courts to allow agencies to make decisions based on politics, stating that an agency âis entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration.â66×66. Id.
In subsequent cases, too, the Court seemed to take political judgments into account through the arbitrary and capricious standard of review. In Massachusetts v. EPA,67×67. 549 U.S. 497 (2007). the Court ruled that the EPAâs refusal to decide if greenhouse gases cause or contribute to climate change was arbitrary and capricious, noting that the agencyâs policy judgments âhave nothing to do withâ that question, and did not âamount to a reasoned justification for declining to form a scientific judgment.â68×68. Id. at 533â34. Professors Jody Freeman and Adrian Vermeule argue that the Court was expressing âincreasing worries about the politicization of administrative expertise,â69×69. Freeman & Vermeule, supra note 6, at 52. and that the Courtâs opinion was âtinged with underlying suspicion about politically motivated executive usurpation of judgments normally left to experts.â70×70. Id. at 94. Two years later, the Court addressed the issue in FCC v. Fox Television Stations, Inc.,71×71. 556 U.S. 502 (2009). this time declining to apply rigorous hard look review to an agency action that changed how many times an expletive could be uttered before the television station would be fined.72×72. Id. at 514â16. In dissent, Justice Breyer stated that the law governing the decisions of administrative agencies âgrants those in charge of . . . agencies broad authority to determine relevant policy,â but âdoes not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.â73×73. Id. at 547 (Breyer, J., dissenting).
In Department of Commerce, the Court was similarly faced with an administrative decision inflected with political judgment. Adding the citizenship question could be linked to several policy goals, including reducing census participation by noncitizens to argue that stricter immigration policies have been successful, altering the basis on which funds are awarded within and between states, and changing the population base for redistricting.74×74. Justin Levitt, Citizenship and the Census, 119 Colum. L. Rev. 1355, 1387â90 (2019). Some of the plaintiffs were concerned with how undercounting immigrant populations could diminish their representation.75×75. Depât of Commerce, 139 S. Ct. at 2565. The district court, expressing its skepticism about the reasons for which the citizenship question was added, ordered the depositions of two federal officials.76×76. Id. at 2564. The justification that the administration did give â that the immigration data was necessary for the enforcement of the VRA â did not fit the policy.77×77. See id. at 2575; see also Levitt, supra note 74, at 1385.
The Court could have, then, taken the State Farm approach and used arbitrary and capricious review to find that the agency decision was impermissibly political. Justice Breyerâs opinion did so: he found that the Secretary failed to adequately consider the evidence that a citizenship question would reduce the accuracy of the census.78×78. Depât of Commerce, 139 S. Ct. at 2593 (Breyer, J., concurring in part and dissenting in part). Therefore, the Secretary failed to âadequately explainâ why a citizenship question was necessary, and there was no rational connection between the evidence presented and decision made.79×79. Id.
Justice Breyer also went one step further, implicitly developing a loose framework to decide that an agency action fails arbitrary and capricious review because of the agencyâs political purposes. He cited three factors that contributed to his finding: âthe nature and importance of the particular decision, the relevance and importance of missing information, and the inadequacies of a particular explanation in light of their importance.â80×80. Id. at 2585. He makes progress, then, toward answering the question how courts should systematically strike down actions for being too politically influenced.
Instead of making the decision within the arbitrary and capricious standard, though, the Court based its decision on a finding of pretext, acknowledging the overtly political nature of the decision.81×81. See id. at 2575 (majority opinion). In finding the policy valid under arbitrary and capricious review, Chief Justice Roberts rejected the idea that decisions should be invalidated because they were motivated by political judgments.82×82. Id. at 2573. He emphasized that â[i]t is hardly improper for an agency head to come into office with policy preferences and ideas,â and he explained that, here, each individual step made sense as part of the administrative decisionmaking process.83×83. Id. at 2574; see id. at 2575. But he finally concluded that the agencyâs justification was unsupported by the evidence, and that it was âcontrived.â84×84. Id. at 2575.
In so doing, the Chief Justice acknowledged the impermissible political judgments that had contaminated an otherwise legitimate decision. He seemed to accept that the agency action did not match its justification, but not that it failed arbitrary and capricious review as a result. Yet by finding that the action was pretext-motivated, he relied on the unacceptable political motivation instead of giving the agency another chance to show why it was interested in enforcing the VRA. That is, the Court found that the Secretary examined the right information and explained his decision adequately, including a connection between the facts on the record and the choice the Secretary made.85×85. Id. at 2571. But then, the Court determined that there was a âsignificant mismatch between the [Secretaryâs] decision . . . and [his] rationaleâ86×86. Id. at 2575. : while the decision could have been made reasonably, the reasons on which the agency claimed it was acting were not the real reasons. This is inconsistent with the nominal separation between pretext and arbitrary and capricious analysis that the Chief Justice presented. On arbitrary and capricious, the Chief Justice said that the decision was supported by the record before the Secretary, but on pretext, that the decision could not be âadequately explainedâ by DOJâs interest in enforcing the VRA.87×87. Id.
Even assuming that the pretext analysis is part of the Chenery I88×88. SEC v. Chenery Corp., 318 U.S. 80 (1943). framework, as the Chief Justice suggested,89×89. See Depât of Commerce, 139 S. Ct. at 2573 (citing Chenery I). the remedy proposed by the Court â a remand to the agency â is puzzling. Chenery seems to presume good faith on the part of the agency: that there are reasons besides those developed for litigation by agency lawyers that the agency head should explain.90×90. See Ronald M. Levin, âVacationâ at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291, 367 (2003) (âChenery serves to ensure that statutory discretion will be exercised by senior administrative officials, rather than by agency staff . . . .â). But the Court attributed bad faith to Secretary Ross by finding that his stated reason for adding the question was pretextual. This implies that he had another, illegitimate motivation that he was not willing to state for the purposes of the litigation. By remanding to the agency, then, the Court seemed to be inviting another pretextual justification â not the VRA justification, and yet not his true motivation, either.
The holding is perhaps better understood on the basis of the unusual facts of the case. Because of the questionnaireâs June deadline,91×91. Depât of Commerce, 139 S. Ct. at 2565. there would effectively be no remand. And, importantly, the Court could avoid distinguishing between politics and policy, or implementing a more severe hard look review. More than being a simple policy judgment, the decision to add the citizenship question seemed to be overtly partisan. As the opinions recognized, the consequences of the case had the potential to change Americaâs democracy.92×92. See id.; see also id. at 2585 (Breyer, J., concurring in part and dissenting in part). Adding the question would also exacerbate racial disparities in the census.93×93. See Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Respondents at 3, Depât of Commerce, 139 S. Ct. 2551 (No. 18-966). This partisan problem became more plain after the case was briefed and argued, when a Republican operativeâs hard drive revealed the plan for the question was to give Republicans an electoral advantage through partisan gerrymandering.94×94. Michael Wines, Deceased G.O.P. Strategistâs Hard Drives Reveal New Details on the Census Citizenship Question, N.Y. Times (May 30, 2019), https://nyti.ms/2EFYWg4 [https://perma.cc/W2A5-Z9BP]. And the action comes from an administration that has vowed to take a hard line against immigrants, including through the Travel Ban and its current border detention policies.95×95. See, e.g., S.M., Donald Trumpâs Hardline Immigration Policies Face Court Challenges, The Economist (Aug. 22, 2019), https://www.economist.com/democracy-in-america/2019/08/22/donald-trumps-hardline-immigration-policies-face-court-challenges [https://perma.cc/BJ79-DVT9]. A holding on the basis of pretext on a short timeframe, then, not only allowed the Court to avoid more clearly explaining the distinction between impermissible political and permissible policy judgments in a hyperpartisan opinion, but also allowed it to avoid entering a new era of more stringent hard look review, as it could have if it had ruled the action arbitrary and capricious.96×96. See Jacob Gersen & Adrian Vermeule, Thin Rationality Review, 114 Mich. L. Rev. 1355, 1406 (2016) (describing how courts since State Farm have not applied rigorous hard look review).
Department of Commerce provided an opportunity for the Court to clarify how its review of agency activity takes political judgments into account. Chief Justice Roberts did not use arbitrary and capricious review to weigh the role of interest group lobbying or political priorities. Instead, he found that there was pretext, making explicit that the administrative process was legitimate, except for the illegitimate political judgment that tinged it. Justice Breyerâs opinion, though, began to develop a framework for courtsâ determination of impermissible political motivation. Still, his discussion, as well as the majority opinion, seemed to be specifically addressed to the egregious facts of the case and the time pressure surrounding it. It is unlikely, then, that the Court will continue to make decisions that name the overtly political â or partisan  â judgment operating in the background. Even more problematically, the inability of the Court to explain how and why this particular judgment was impermissible does nothing to define the contours of the Courtâs review going forward. Thus, there is no reason to think Department of Commerce will be a basis to subject other administrative decisions to similarly searching review.
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