The precepts of administrative law are being challenged. Justices have expressed skepticism over Chevron1×1. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). deference,2×2. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring). chiseled away at Auer3×3. Auer v. Robbins, 519 U.S. 452 (1997). deference,4×4. See Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019). and begun rekindling the nondelegation doctrine.5×5. See Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting). A less prominent development — but arguably more foundational6×6. See Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689, 694 (1990) (“[U]nreviewability is a threshold defense, like standing or ripeness. When the government prevails on this defense, a particular administrative action or finding receives no scrutiny — not even deferential scrutiny — on judicial review.”). — is the rumbling around judicial reviewability: before a court reaches the merits of a case, agencies have tried to insulate their actions from review under § 701(a)(2) of the Administrative Procedure Act7×7. 5 U.S.C. §§ 551–559, 561–570a, 701–706. (APA).8×8. See, e.g., Dep’t of Com. v. New York, 139 S. Ct. 2551, 2567–69 (2019); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905–07 (2020). Mired in debate since its passage,9×9. See, e.g., Viktoria Lovei, Comment, Revealing the True Definition of APA § 701(a)(2) by Reconciling “No Law to Apply” with the Nondelegation Doctrine, 73 U. Chi. L. Rev. 1047, 1050 (2006) (recognizing that § 701(a)(2) “has caused confusion and controversy since its inception”). Compare New York, 139 S. Ct. at 2567–69 (holding that agency action was not exempted from judicial review), with id. at 2597–606 (Alito, J., concurring in part and dissenting in part) (arguing that the agency action was unreviewable under § 701(a)(2)). the provision precludes judicial review of agency actions that are “committed to agency discretion by law.”10×10. 5 U.S.C. § 701(a)(2). Recently, in Physicians for Social Responsibility v. Wheeler,11×11. 956 F.3d 634 (D.C. Cir. 2020). the D.C. Circuit took a novel approach to this doctrine. In 2017, the Environmental Protection Agency (EPA) issued an internal directive that barred EPA grant recipients — namely scientists — from serving on EPA advisory committees.12×12. See id. at 638. To invalidate the directive, the court first determined whether the agency’s action qualified for one of § 701(a)(2)’s two common law exceptions to the APA’s presumption of reviewability.13×13. See id. at 642–44. In doing so, the D.C. Circuit departed from precedent by collapsing the two exceptions into a single test: whether there is a “meaningful standard” to apply.14×14. See id. at 643 (quoting Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002)). By removing a redundant exception, the Physicians approach appropriately streamlined the test for reviewability.
To fulfill its statutory mission, the EPA relies on twenty-two advisory committees — governed by the Federal Advisory Committee Act15×15. Pub. L. No. 92-463, 86 Stat. 770 (1972). (FACA) — that provide the agency with expertise.16×16. Physicians, 956 F.3d at 639. FACA requires the General Services Administration (GSA) to develop uniform standards for these advisory committees, and, in turn, the GSA requires advisory committee members to comply with ethics rules promulgated by the Office of Government Ethics (OGE).17×17. Id. at 640. Traditionally, the EPA has permitted recipients of EPA grants to serve on its scientific advisory committees, and none of the OGE’s ethics rules have precluded this practice.18×18. See id. at 641.
In October 2017, then–EPA Administrator Scott Pruitt19×19. Andrew Wheeler, the EPA’s Acting Administrator, was substituted for Pruitt as a party to the case under Federal Rule of Civil Procedure 25(d). Physicians for Soc. Resp. v. Wheeler, 359 F. Supp. 3d 27, 32 n.1 (D.D.C. 2019). changed this policy, issuing a directive entitled “Strengthening and Improving Membership on EPA Federal Advisory Committees” (the Directive).20×20. Physicians, 956 F.3d at 641; see also Directive, E. Scott Pruitt, Adm’r, Env’t Prot. Agency, Strengthening and Improving Membership on EPA Federal Advisory Committees (Oct. 31, 2017), https://www.epa.gov/sites/production/files/2017-10/documents/final_draft_fac_directive-10.31.2017.pdf“>https://www.epa.gov/sites/production/files/2017-10/documents/final_draft_fac_directive-10.31.2017.pdf”>https://www.epa.gov/sites/production/files/2017-10/documents/final_draft_fac_directive-10.31.2017.pdf [https://perma.cc/DW27-BN2J]. The Directive introduced four new “principles and procedures,” one of which required “that no member of an EPA federal advisory committee be currently in receipt of EPA grants.”21×21. Directive, supra note 20. Along with the Directive, Pruitt issued a memorandum explaining that the Directive was meant to avoid “potential interference with [committee members’] ability to independently and objectively serve” the EPA.22×22. Physicians, 359 F. Supp. 3d at 34 (alteration in original). The Directive led to a dismissal of many scientists serving on EPA advisory committees, and three organizations and three individuals filed suit.23×23. Physicians, 956 F.3d at 641.
The District Court for the District of Columbia granted the EPA’s motion to dismiss.24×24. Id. The court first found that the Directive was an appropriate exercise of the Administrator’s “broad appointment discretion.”25×25. Physicians, 359 F. Supp. 3d at 40; see also id. at 41. While recognizing that this discretion was “not unbounded,” the court held that ethics regulations and a conflict of interest statute did not “constrain an agency’s ability to appoint and retain individuals under a higher ethical standard” than required.26×26. Id. at 41. The court next found that the OGE’s procedural requirements did not provide a private cause of action and that FACA’s “fairly balanced” and “inappropriately influenced” requirements provided no meaningful standard for review.27×27. See id. at 43–47. Then, the court held that the statutes establishing the EPA advisory committees did not require the EPA to recruit the “most qualified” scientists; the agency had discretion to assess the qualifications of potential committee members.28×28. Id. at 47–48. Because neither FACA nor the advisory committee statutes offered a meaningful standard for review, the agency’s action was unreviewable under § 701(a)(2).29×29. See id. at 43–44, 47–48. Finally, even if the action was reviewable, the court concluded that the EPA had “sufficiently explained its change in policy” — accordingly, the action could survive arbitrary and capricious review.30×30. Id. at 49.
The plaintiffs appealed, and the D.C. Circuit reversed.31×31. Physicians, 956 F.3d at 650. Writing for a unanimous panel, Judge Tatel32×32. Judge Tatel was joined by Judges Rogers and Ginsburg. held that the Directive was reviewable.33×33. Physicians, 956 F.3d at 642–44. He noted that agency actions were presumptively reviewable,34×34. Id. at 642 (citing Steenholdt v. FAA, 314 F.3d 633, 638 (D.C. Cir. 2003)). but any challenge to an agency action must “clear the hurdle”35×35. Id. (quoting Heckler v. Chaney, 470 U.S. 821, 828 (1985)). of § 701(a)(2)’s “two related, but distinct” bars to judicial review.36×36. Id. First, § 701(a)(2) precludes judicial review of administrative decisions that courts “traditionally have regarded as ‘committed to agency discretion.’”37×37. Id. (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). Second, § 701(a)(2) applies when “statutes are drawn in such broad terms that in a given case there is no law to apply.”38×38. Id. (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). According to Judge Tatel, both bars could be overcome as long as there were “meaningful standards to cabin the agency’s . . . discretion.”39×39. Id. at 643 (quoting Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002)). Such standards could be found in policy statements, regulations, and statutes. Id. (citing Steenholdt, 314 F.3d at 638). Here, there were such standards, as the GSA had promulgated regulations to govern federal advisory committees.40×40. Id. Thus, Judge Tatel held that the Directive was not exempted from review.41×41. Id.
Having established reviewability, Judge Tatel rejected the appellants’ assertion that the Directive was inconsistent with OGE’s ethics standards.42×42. Id. at 644. Because OGE had permitted agencies to “tailor” their own ethics rules “to the functions and activities of [the] agency,”43×43. Standards of Ethical Conduct for Employees of the Executive Branch, 57 Fed. Reg. 35,006, 35,006 (Aug. 7, 1993) (to be codified at 5 C.F.R. pt. 2635). the differences between the Directive and OGE standards were permissible.44×44. Physicians, 956 F.3d at 644.
However, Judge Tatel held that the Directive was arbitrary and capricious because the EPA failed to provide a rational basis for its policy change.45×45. Id. at 644–47. He noted that even though the Directive represented a “major break from the agency’s prior policy,” the Directive was “silent” with respect to that prior policy.46×46. Id. at 645. While admitting that the EPA had the discretion to change its policies, Judge Tatel recognized that an agency must both “display awareness that it is changing position”47×47. Id. at 646 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). and “provide a reasoned explanation for the change.”48×48. Id. (quoting Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016)). Thus, even if the Directive could be construed as displaying awareness of the policy change, the EPA failed to provide a “reasoned explanation” for it.49×49. Id. (quoting Encino Motorcars, 136 S. Ct. at 2125). Judge Tatel noted that a thorough analysis was especially warranted because the OGE and the EPA had reached opposite conclusions as to whether grant recipients could ethically serve. Id. at 646–47. Accordingly, the Directive was arbitrary and capricious and thus invalid.50×50. Id. at 647.
Finally, Judge Tatel deemed the Directive procedurally flawed.51×51. See id. at 648. The OGE regulations prescribe a procedure for issuing supplemental ethics rules — a procedure with which the EPA “d[id] not claim to have complied” on the grounds that the Directive fell “outside the regulations’ purview.”52×52. Id. Judge Tatel held that the Directive was indeed subject to the OGE procedures and should have been submitted to the OGE “‘for its concurrence and joint issuance’ in the Federal Register.”53×53. Id. (quoting 5 C.F.R. § 2635.105(a) (2019)). Judge Tatel also dismissed the EPA’s argument that a disclaimer in the OGE regulations prevented judicial review. Id. at 649. While similar language had previously precluded review of executive orders and internal agency documents, Judge Tatel recognized that “a final rule . . . cannot preclude judicial review on its own.” Id. at 649–50. Thus, the D.C. Circuit reversed the district court’s dismissal and remanded.54×54. Id. at 650.
In applying the § 701(a)(2) exceptions to reviewability, the D.C. Circuit drifted from precedent. The statutory language — preventing review of “agency action . . . committed to agency discretion by law”55×55. 5 U.S.C. § 701(a)(2). — is ambiguous. To make the provision workable, the Physicians court followed precedent in interpreting it to establish two discrete exceptions to the general presumption of reviewability: an action is unreviewable if (1) it is one “traditionally . . . ‘committed to agency discretion’”56×56. Physicians, 956 F.3d at 642 (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). This includes decisions to allocate lump-sum appropriations and decisions not to initiate enforcement proceedings. See id. or (2) the governing statute offers “no law to apply.”57×57. Id. The term “no law to apply” is used interchangeably with the term “meaningful stan-dards” — both look for statutes or regulations against which to judge the agency’s exercise of discretion. See, e.g., Lincoln, 508 U.S. at 191. In considering those exceptions, however, the court simply applied a “meaningful standards” test.58×58. Physicians, 956 F.3d at 643 (quoting Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002)). By searching solely for an applicable standard, the Physicians court rendered the “traditionally committed” exception superfluous. But rather than upset reviewability, this approach streamlines the doctrine.
Two cases form the foundation of § 701(a)(2)’s jurisprudence. The Supreme Court first considered the provision in Citizens to Preserve Overton Park, Inc. v. Volpe.59×59. 401 U.S. 402 (1971). By looking to legislative history, it held that the clause provided a “very narrow” exemption from judicial review when “statutes are drawn in such broad terms that in a given case there is no law to apply.”60×60. Id. at 410 (quoting S. Rep. No. 79-752, at 212 (1945)) (emphasis added). Fourteen years later, the Court held in Heckler v. Chaney61×61. 470 U.S. 821 (1985). that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).”62×62. Id. at 832. Such enforcement decisions were “traditionally” committed to agency discretion and thus “presumptively unreviewable.”63×63. Id. The Court, however, articulated a caveat: the presumption could be rebutted when “the substantive statute . . . provide[s] guidelines for the agency to follow.”64×64. Id. at 833.
Subsequent cases have read Overton Park and Chaney as establishing two exceptions under § 701(a)(2).65×65. See Physicians, 956 F.3d at 642; see also Lincoln v. Vigil, 508 U.S. 182, 191 (1993). Justice Scalia laid the groundwork for the two-exceptions approach. See Webster v. Doe, 486 U.S. 592, 606–10 (1988) (Scalia, J., dissenting) (criticizing the majority for applying only the Overton Park standard and failing to recognize other factors, like traditional commitment to agency discretion, that render agency action unreviewable). First, agency actions can be exempted from review under Overton Park if the agency’s governing statute is so vague as to provide “no law to apply.”66×66. See Physicians, 956 F.3d at 642. Second, when an agency action is one “traditionally committed” to agency discretion, there is a Chaney presumption of unreviewability that can only be overcome if there are “meaningful standards” to apply.67×67. See Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002). Federal agencies may invoke both to attempt to evade judicial review.68×68. See, e.g., Final Brief for Appellee at 19–21, Physicians, 956 F.3d 634 (No. 19-5104).
Recent Supreme Court cases have affirmed the contours of this approach. In 2019, the Court addressed the reviewability of the Secretary of Commerce’s decision to reinstate a census question concerning citizenship status.69×69. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2561, 2567 (2019). The Court began its APA analysis by acknowledging the narrow scope of § 701(a)(2): it applies only “where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”70×70. Id. at 2568 (quoting Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018)). A subset of these cases were those involving “certain categories of administrative decisions . . . traditionally . . . regarded as ‘committed to agency discretion.’”71×71. Id. (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). Because the “taking of the census [was] not one of those areas traditionally committed to agency discretion” and the relevant statute “furnishe[d]” a “meaningful standard,”72×72. Id. the action was reviewable.73×73. Id. at 2569.
Admittedly, the Court did not cleanly identify two discrete exceptions under § 701(a)(2). But by considering them separately, the Court treated the two as distinct. In a case challenging the U.S. Fish and Wildlife Service’s decision to designate land as a “critical habitat,”74×74. Weyerhaeuser, 139 S. Ct. at 364. the Court took a similar approach. It did not distinguish between the two exceptions but still expressly considered whether the decision was traditionally committed to agency discretion, saying that “this case involves the sort of routine dispute that federal courts regularly review.”75×75. Id. at 370. It then found a “meaningful standard” in the statute.76×76. Id. at 371 (quoting Lincoln, 508 U.S. at 191). While recognizing that the “traditionally committed” and “no law to apply” tests are closely related, these cases suggest that they still warrant independent analyses.77×77. The Court applied § 701(a)(2) in a case from the 2019 Term when it reviewed the Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals program. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1901–05 (2020). In holding that the decision was reviewable, the Court addressed only the “traditionally committed” exception, id. at 1905–07, as it was the thrust of the agency’s § 701(a)(2) argument. See Brief for the Petitioners at 17–21, Regents, 140 S. Ct. 1891 (Nos. 18-587, 18-588, 18-599).
The D.C. Circuit has followed this approach. In 2006, the Secretary of Labor sued the Federal Mine Safety and Health Review Commission, arguing that it improperly overturned a decision to cite two parties for safety violations.78×78. Sec’y of Lab. v. Twentymile Coal Co., 456 F.3d 151, 152 (D.C. Cir. 2006). The court ruled for the Secretary, holding that it lacked the authority to review decisions like the Secretary’s because the governing statute provided no “meaningful standards” against which to assess them.79×79. Id. To reach this conclusion, the court described § 701(a)(2)’s two exceptions80×80. Id. at 156 (“[W]e consider both the nature of the administrative action at issue and the language and structure of the statute that supplies the applicable legal standards . . . .” (quoting Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002))). and said that decisions to issue citations were “traditional[ly]” unreviewable.81×81. Id. But the court also stated that neither exception would “be dispositive” if the statute provided a “meaningful standard.”82×82. Id. at 157 (citing Drake, 291 F.3d at 72). Like the Supreme Court, the D.C. Circuit noted the supremacy of “meaningful standards” but still considered the “traditionally committed” exception, suggesting it remains necessary to the analysis.83×83. Id.; see also Drake, 291 F.3d at 71 (analyzing the Federal Aviation Administration’s dismissal of a complaint under the “traditionally committed” exception, even though “the statute at issue gives virtually unfettered discretion to the [agency] to act” and was thus unreviewable).
In Physicians, the D.C. Circuit charted a slightly different course, applying solely a “meaningful standards” test for unreviewability.84×84. Physicians, 956 F.3d at 643. The EPA had argued that the Directive qualified for both exceptions: first, decisions related to the “membership of [an agency’s] advisory committees”85×85. Final Brief for Appellee, supra note 68, at 19. were “traditionally committed” to agency discretion,86×86. Physicians, 956 F.3d at 643. and, second, there was “no law to apply” because “none of the statutes governing [the EPA’s] committees provides any basis for review.”87×87. Id. (first alteration in original) (quoting Final Brief for Appellee, supra note 68, at 22). While acknowledging both arguments, the court declined to consider the exceptions independently.88×88. See id. Instead, it held that, under either, judicial review was available “where there [were] ‘meaningful standards to cabin the agency’s otherwise plenary discretion.’”89×89. Id. (quoting Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002)). Even if the Directive fell within the “traditionally committed” exception, it would still be rebutted by the presence of a “meaningful standard.” Thus, a “meaningful standard” would both provide “law to apply” — precluding one exception — and rebut the Chaney presumption of unreviewability — foreclosing the other. By not analyzing the “traditionally committed” exception that the EPA claimed, the court rendered it unnecessary.90×90. See id.
Defenders of unreviewability argue that the “traditionally committed” exception is central to the doctrine. The Court has previously noted that the APA’s drafters intended to codify “the common law” of judicial review of agency action, which would exempt from review those actions “traditional[ly]” left to an agency’s discretion prior to the APA’s passage.91×91. See Heckler v. Chaney, 470 U.S. 821, 832 (1985) (citing Kenneth Culp Davis, Administrative Law Treatise § 28:5 (2d ed. 1984)); see also Webster v. Doe, 486 U.S. 592, 608–10 (1988) (Scalia, J., dissenting) (quoting Chaney, 470 U.S. at 832) (arguing that § 701(a)(2) was intended to preserve the “common law” of judicial review, which designates “certain issues and certain areas . . . beyond the range of review,” id. at 608). This proposition, however, cannot be easily gleaned from the legislative history. See Lovei, supra note 9, at 1052 (“[L]egislators on both sides of the debate inserted their interpretation of [§ 701(a)(2)] into the legislative history, rendering it contradictory and unreliable.”). One scholar, claiming that § 701(a)(2) “expresses a general presumption against review,”92×92. Harvey Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv. L. Rev. 367, 370 (1968) (emphasis added). argues that courts should consider extratextual factors in assessing reviewability.93×93. Id. at 371 (encouraging courts to consider the “basic interests the legislature would weigh”). Others have contended that a search solely for “meaningful standards” would make § 701(a)(2) redundant with § 706,94×94. See Levin, supra note 6, at 713. which requires reviewing courts to “set aside agency action[s]” that are “abuse[s] of discretion.”95×95. 5 U.S.C. § 706(2)(A). Under Physicians, § 701(a)(2) would designate actions as “unreviewable” only when there is no standard against which to assess them. But such agency actions would also survive a merits scrutiny for abuse of discretion: § 701(a)(2) would not exempt any actions from review that would otherwise be held unlawful under § 706(2)(A). Thus, a search solely for “meaningful standards” threatens to leave § 701(a)(2) meaningless.
Despite these justifiable concerns, the Physicians approach would have few, if any, practical consequences. Currently, only a narrow band of agency actions is deemed unreviewable — § 701(a)(2) is restricted to “rare circumstances.”96×96. See Lincoln v. Vigil, 508 U.S. 182, 191 (1993). But while these unreviewable actions may be “traditionally committed” to agency discretion, they also lack a “meaningful standard.”97×97. See, e.g., id. at 193–94; Drake v. FAA, 291 F.3d 59, 71–72 (D.C. Cir. 2002); Sec’y of Lab. v. Twentymile Coal Co., 456 F.3d 151, 152 (D.C. Cir. 2006). In these cases, reviewability rests on the “meaningful standards” inquiry; consideration of an agency’s traditional discretion does no work. Since the “traditionally committed” exception was largely toothless to begin with, the Physicians approach is unlikely to significantly expand judicial review.98×98. Even if a “meaningful standards” test were to expand judicial review of agency actions, courts could still afford deference to certain categories of agency action. See Heckler v. Chaney, 470 U.S. 821, 840–55 (1985) (Marshall, J., concurring) (challenging the majority’s “presumption of unreviewability,” id. at 843, and instead advocating that enforcement decisions should be reviewable but given “substantial deference,” id. at 842). But it still has significance. Because courts must know when to review an agency action before deciding how to review it, streamlining reviewability might make way for other evolutions in administrative law. The Physicians court did just that.