abstract. In the past two years, the Supreme Court has invalidated two major executive-branch initiatives—the termination of the Deferred Action for Childhood Arrivals (DACA) policy and the addition of a citizenship question to the census—as arbitrary and capricious. Many have cast Chief Justice Roberts’s decisive votes and opinions in these cases as efforts to protect the Court’s public standing by skirting political controversy. Taken on their own terms, however, the opinions seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. And that use of arbitrariness review as a judicial backstop for political accountability is an important jurisprudential development in its own right. For decades, the Court has understood arbitrariness review mainly as a check against bureaucratic blunders, lawlessness, and political interference with agency expertise. But in the DACA and census cases, a narrow majority refashioned this form of review as a tool for forcing an administration to pay the appropriate political price for its discretionary choices.

Through close and context-laden readings of these back-to-back opinions, I surface the “accountability-forcing” form of arbitrariness review that they employ and draw out its significance. Between the two cases, the Roberts-led majority identified three kinds of agency explanations that should be rejected or disfavored on political-accountability grounds: post hoc explanations, buck-passing explanations, and pretextual explanations. Standing alone, these new rules (and new justifications for old ones) have important consequences. But if the shift toward an accountability-centric vision of arbitrariness review continues, it could also lead to renovations of several other administrative-law doctrines—including narrowing the carve-outs from judicial review, undermining the remedy of “remand without vacatur,” and empowering courts to discount agencies’ fallback justifications for their choices.

After laying out the accountability-forcing turn in the Court’s recent cases and sketching its possible ramifications, I consider several grounds for doubt about its propriety and efficacy. Some of these objections, I conclude, have real force. Still, none debunks the core insight that I take to underlie Roberts’s approach: The reasoned explanation requirement can sometimes be deployed not only to ensure rationality and legality in the workings of the administrative state, but to vindicate democratic, political checks on the executive branch as well.

author. Assistant Professor of Law, Harvard Law School. The author served as co-counsel for some respondents in Department of Homeland Security v. Regents of the University of California, which is discussed here; the views expressed here are solely those of the author. For very helpful comments and discussion, I thank Nikolas Bowie, Molly Brady, Richard Fallon, John Goldberg, Lindsay Harrison, Chris Havasy, Daniel Hemel, Howell Jackson, Michael Klarman, Anna Lvovsky, Daphna Renan, Tim Scanlon, Nicholas Stephanopoulos, Matthew Stephenson, David Strauss, workshop participants at the University of Minnesota Law School and Harvard Law School, and the editors of the Yale Law Journal, including Jonathan Liebman, Bianca Herlitz-Ferguson, and Alexander Nabavi-Noori. Abe Kanter, Maura Smyles, and the Harvard Law School Library provided valuable research assistance. This project was supported by the Harvard Law School Summer Research Fund.

Introduction

According to a familiar picture, the President and his administration are held accountable in two parallel ways: legally and politically. Legal accountability comes largely from judicial review under the Administrative Procedure Act (APA), which authorizes courts to set aside agency actions that are “arbitrary” or otherwise unlawful.1 Political accountability operates through a much more diffuse set of mechanisms—the risk of the President’s ouster at the next election, the sting of public criticism, the loss of political capital, the burdens of congressional oversight, and more.2 Unlike arbitrariness review, these political checks impose no defined “test.” But they ensure that agency actions are publicly acceptable, not just legally permissible, or at least that the decisionmakers bear consequences if their decisions are not.

Courts engaged in arbitrariness review under the APA have always been aware of the parallel channel of political accountability, but they have not traditionally viewed it as their concern. Under the classic conception, the court’s job is to ensure that an agency’s decision was “based on a consideration of the relevant factors” and did not involve a “clear error of judgment.”3 Such review protects the public from bureaucratic blunders, legal violations, and (more controversially) political interference with agency expertise.4 No doubt the mechanisms of political accountability loom in the background of this process, just as judicial review looms in the background of politics.5 And if the APA requires an agency to facilitate or entertain public input on the front end of its decisionmaking process, courts will enforce those procedural requirements.6 But when it comes to reviewing the agency’s ultimate policy choice, under this classic conception, a court need not concern itself with any parallel, political process that the same agency action might (or might not) also have set in motion.

I argue here that the Supreme Court’s recent decisions have begun to turn away from this “parallel lines” understanding of political accountability and arbitrariness review and toward a markedly different one. Under the emerging model, ensuring robust political accountability is itself a central concern of arbitrariness review, alongside (or perhaps ahead of) ensuring the substantive soundness or political neutrality of agency decisions. Accordingly, courts can and should use arbitrariness review to force an administration into explaining itself in ways that facilitate, rather than frustrate, the natural political repercussions of its choices. Borrowing a page from “political process theory” in constitutional law, courts applying this approach will give agencies relatively broad substantive deference—deference based, in part, on the executive branch’s greater political accountability—but they will guard against efforts to clog and manipulate the very channels of political accountability themselves.7

My argument rests on two cases, both decided in the Court’s past two Terms, that suggest a new embrace of this “accountability-forcing” conception of arbitrariness review.8 The first and more central is Department of Homeland Security v. Regents of the University of California, in which the Court invalidated the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) policy.9 Read closely and in context, I will argue, Regents reflects an overriding concern to ensure that the Trump Administration could not rescind DACA without paying the appropriate political price. That is why the Court stressed that the administration had rested its decision on a mistaken claim of legal compulsion, rather than an avowed exercise of discretion. And that is why, when the administration did offer grounds for rescinding DACA based on immigration policy, the Court refused to entertain them. Unless the administration was forced to start over, the Court worried, “the public” would be denied the opportunity to “respond fully and in a timely manner to [the administration’s] exercise of authority.”10 While the Court sought to ground that concern in “foundational principle[s] of administrative law,”11 its explicit use of arbitrariness review as a tool for enforcing political accountability is nearly unprecedented.

And the Court’s express appeal to that value is “nearly” unprecedented—rather than completely so—only because it had pointed in the same direction in Department of Commerce v. New York the year before.12 There the Courtrebuffed the Secretary of Commerce’s attempt to add a citizenship question to the 2020 census, reasoning that his only avowed rationale for that choice (better enforcement of the Voting Rights Act) was pretextual. An obvious problem with pretextual justifications is that they can frustrate judicial review. But the Court framed the problem more broadly than that: “The reasoned explanation requirement of administrative law,” it said, “is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”13 By disabling the agency from relying on a pretext for purposes of judicial review, therefore, the Court was also protecting the distinct, political channel of accountability that runs from the agency to the public at large. Again, no prior case had construed the office of the “reasoned explanation requirement”—an implied corollary of a court’s obligation to review for arbitrariness—to extend so far.

I have referred to “the Court” throughout the last two paragraphs, but of course the pivotal figure in this turn is actually its Chief Justice, John Roberts. Roberts authored the 5-4 opinions in both cases; he was the only member of the majority to rely solely on his pretext theory in Department of Commerce; and he was the least obvious member of the majority in Regents as well.14 Many have cast Roberts’s aisle-crossing votes in these high-stakes cases as essentially political—as marks of his “institutionalism,” meaning roughly his concern to protect the public reputation and perceived neutrality of the Court.15 It is certainly possible that Roberts’s approach to these cases was motivated by a desire to skirt political controversy and burnish the reputation of the institution he leads. But taking his opinions in Regents and Department of Commerce on their own terms, they seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. They reflect a vision of courts as political ombudsmen—one might even say umpires—who will rarely second-guess the executive branch’s policy judgments themselves, but who will police the reason-giving process to ensure that the public has a fair opportunity to evaluate and respond to those same decisions.16

And one need not be naïve about Roberts’s possible motivations in these cases to think that this vision, taken at face value, matters. For one thing, it now has a significant foothold in the law.17 Whatever brought them about, the Court’s opinions in Regents and Department of Commerce will require lower courts to reckon with the role of political accountability in arbitrariness review in new ways. By the same token, they also lend new weight to arguments of the same kind in future cases before the Court itself. And even assuming a good bit of motivated reasoning on Roberts’s part, it is always revealing how a person, once motivated to reach some result, goes about convincing himself or herself of its soundness. Here, Roberts zeroed in on political accountability as a central concern of arbitrariness review. With a majority of the Court keen to rein in perceived excesses of the administrative state, and Roberts continuing to wield the assignment power (albeit not necessarily the swing vote), there is good reason to think that the infrastructure he built could be put to work again sooner rather than later.18

Placing this development in its larger jurisprudential context, moreover, suggests that it is not a deus ex machina but a logical next step. As many have observed, the arc of prevailing understandings of judicial review and the administrative state is defined by a tension between politics and expertise.19 In stylized form, the story starts with the emergence of “hard-look review,” exemplified by Motor Vehicles Association v. State Farm,20 as a demand that agencies bring a kind of neutral expertise to bear on even politically charged problems.21 In a later era epitomized by Chevron deference,22 the Court shifted toward understanding political responsiveness as a virtue in agency decisionmaking, one with which courts ought not interfere.23 Then, a little over a decade ago, Massachusetts v. EPA24 suggested that the pendulum had swung back toward the older, “expertise-forcing” vision of judicial review.25

But it is now clear that, thanks to developments within and beyond the Court, this throwback to technocracy was short-lived—and that some vision more tolerant of political control will take its place. For one thing, the Court’s conservatives have never subscribed to the expertise-forcing agenda.26 And more fundamentally, the last few presidencies leave little doubt that, as Kathryn Watts recently observed, “presidential control over the regulatory state is here to stay.”27 As she rightly says, the real question now is how “administrative law doctrines can and should respond to the new status quo.”28 The “accountability-forcing” form of arbitrariness review represents a natural answer to that question emerging at a natural time.29 It takes the political nature of many significant executive-branch decisions entirely for granted, then uses the main lever at the courts’ disposal—the power to invalidate agency actions as inadequately reasoned—to try to ensure that those political choices are justified in a manner that facilitates political accountability for them.30

I do not want to overstate the point: Any emerging development can turn out, in retrospect, to have been a false start. And predicting the trajectory of the Court’s jurisprudence would be especially unwise when the Court’s membership has been changing rapidly and the Court itself has been under unusual political pressures.31 Suffice it to say, then, that the Court’s most recent cases point toward a substantial and intriguing vision of arbitrariness review as a servant of political accountability and that, for practical and intellectual reasons alike, this vision well warrants explication and critique.

I will undertake that project over three Parts. Part I identifies three kinds of explanations that the Roberts-led majority treated as threats to political accountability in Regents and Department of Commerce and unpacks the opinions’ responses to each. Part II then identifies three further directions in which the law of APA review could plausibly move, spurred by the same concern. Finally, Part III identifies and tentatively evaluates several objections to the propriety and efficacy of using arbitrariness review to promote political accountability. The objections make clear that the accountability-forcing brand of arbitrariness review has both limits and drawbacks. But, I conclude, they do not negate the idea’s core appeal: Under the right circumstances, the reasoned explanation requirement can be deployed not only to ensure rationality and legality in the workings of the administrative state, but to vindicate democratic, political checks on the executive branch as well.