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"Thin Rationality Review" by Jacob Gersen and Adrian Vermeule (2016)

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"Thin Rationality Review" (2016) is an article by American legal scholars Jacob Gersen and Adrian Vermeule arguing that courts reviewing the policy choices made by agencies ought to use a more lenient standard than hard look review, articulated by the U.S. Supreme Court in State Farm (1983).[1] Under a thin rationality standard, courts would uphold agency actions as long as they are based on reasons instead of policing whether those reasons are scientifically valid.[1]

HIGHLIGHTS
  • Source: Michigan Law Review, Volume 114, 2016
  • Abstract: Gersen and Vermeule provide the following summary of their argument in the paper's abstract:


    "Under the Administrative Procedure Act, courts review and set aside agency action that is “arbitrary [and] capricious.” In a common formulation of rationality review, courts must either take a “hard look” at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review—a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an appreciation of the limits of reason, especially in administrative policymaking. Agency decisionmaking is nonideal decisionmaking; what would be rational under ideal conditions is rarely a relevant question for agencies. Rather, agencies make decisions under constraints of scarce time, information, and resources. Those constraints imply that agencies will frequently have excellent reasons to depart from idealized first-order conceptions of administrative rationality.

    Thin rationality review describes the law in action. Administrative law textbooks typically suggest that the State Farm decision in 1983 inaugurated an era of stringent judicial review of agency decisionmaking for rationality. That is flatly wrong at the level of the Supreme Court, where agencies have won no less than 92 percent of the sixty-four arbitrariness challenges decided on the merits since the 1982 Term. The Court’s precedent embodies an approach to rationality review that is highly tolerant of the inescapable limits of agency rationality when making decisions under uncertainty. State Farm is not representative of the law; beloved of law professors, and frequently cited in rote fashion by judges, State Farm nonetheless lies well outside the mainstream of the Supreme Court’s precedent. To encapsulate the Court’s approach to rationality review, the best choice would be the powerfully deferential opinion in Baltimore Gas, decided in the same Term as State Farm. Plausibly, rather than living in the era of hard look review or the State Farm era, we live in the era of Baltimore Gas."[1]

    • Authors

    Jacob Gersen

    Jacob Gersen is an American lawyer and professor. As of August 2018, he was Sidley Austin Professor of Law at Harvard Law School, Affiliate Professor in the Department of Government, and Director of the Food Law Lab in Cambridge, Massachusetts. According to his faculty profile page on the Harvard Law School website, Gersen's areas of interest include administrative law, food and drug law, environmental law and policy, constitutional law, Congress, legislation and financial institutions. Below is a summary of Gersen's education and career:[2]

    • Academic degrees:
      • A.B. (1996), Brown University, Providence, Rhode Island
      • M.A. (1998), University of Chicago, Chicago, Illinois
      • Ph.D. (2001), University of Chicago, Chicago, Illinois
      • J.D. (2004), University of Chicago Law School, Chicago Illinois

    Adrian Vermeule

    Adrian Vermeule is an American lawyer and professor. As of December 2017, he was the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School in Cambridge, Massachusetts. According to his faculty profile page on the Harvard Law School website, Vermeule's areas of interest include administrative law, constitutional law, legislation, and national security law. Below is a summary of Vermuele's education and career:[3]

    • Academic degrees:
      • B.A. (1990), Harvard College, Cambridge, Massachusetts
      • J.D. (1993), Harvard Law School, Cambridge, Massachusetts
    • Law professor and legal scholar
    • 2012: Elected to the American Academy of Arts and Sciences

    "Thin Rationality Review"

    See also: Arbitrary-or-capricious test and Hard look review

    Identifying the problem

    Gersen and Vermeule begin by contrasting their proposed standard for judicial review with what became known as hard look review. The Supreme Court described a demanding, hard look, process in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company (1983). According to State Farm, reviewing courts must take a hard look at the rationality that went into agency decisionmaking or at least make sure agencies took a hard look at all of the relevant problems when they acted. Examining the rationality of agency decisionmaking allows courts to apply the arbitrary-or-capricious test mandated by the Administrative Procedure Act (APA). Gersen and Vermeule have a different idea:[1]

    “ We will propose a much less demanding and intrusive interpretation of the “arbitrary and capricious” standard in section 706(2)(A). The argument has both prescriptive and descriptive components. Prescriptively, we urge that rationality is a much thinner notion than some commentators seem to think, and that rational decisionmaking requires far less from agencies than lawyers tend to realize. Courts have sometimes adopted an excessively intrusive approach because, acting in the best of faith, they have misunderstood what rationality requires. In particular, they have failed to grasp a crucial twist: under a robust range of conditions, rational agencies may have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary.[1][4] ”

    Defending a different approach to judicial review

    Even though the APA forbids arbitrary agency action, Gersen and Vermeule defend their prescription by distinguishing legal arbitrariness from the technical definition of arbitrary. When agencies find it difficult to explain their choices among uncertain policy variables, the authors contend that courts should, and often do, defer to the expertise of administrators. They argue that courts should look to the deferential standard of review found in Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc. instead of State Farm, which was decided on the same day.[1]

    “ State Farm and Chevron are said to be two of the pillars of administrative law. Many others before us have noted that they are in some tension, with Chevron ushering in an era of deferential review of agency legal interpretation and State Farm ushering in an era of robust judicial review of agency policymaking. The historical reality, however, is actually quite the contrary. State Farm did not usher in an era of aggressive hard look review. In the Supreme Court, agencies virtually never lose so-called hard look cases, and while the lower-court practice is more heterogeneous, and includes highly intrusive outliers, State Farm review in practice is not systematically hard look. It is time for the academic commentary to update.


    As far as the law in action is concerned, we live in the era of Baltimore Gas review. Baltimore Gas made clear (1) that it is generally sufficient that an agency states the nature of its uncertainty—not that it resolve it; (2) that agencies are entitled to adopt any rational assumptions to cope with uncertainty, including highly optimistic assumptions, which are just as rational as highly pessimistic ones; and (3) that courts may not demand the impossible by requiring agencies to explain why they have chosen the assumptions they have, as opposed to other assumptions. Baltimore Gas review is in fact more consistent with Supreme Court practice in the past three decades than is State Farm (at least in its inflated form, as hard look review). When lower courts have strayed toward a thick form of rationality review, the Court has been quick to overrule.

    Rightly understood, arbitrary and capricious review is thin. It does not require agencies to use cost-benefit analysis; it does not require the resolution of scientific uncertainty; it does not require that agencies pick the optimal policy, or the most accurate policy, or the best feasible policy, or anything of that sort. It simply requires that agencies act based on reasons. (As we have noted, there is a separate question whether agencies should be obliged to give reasons for their actions). The set of admissible reasons includes second-order or higher-order reasons for acting nonrationally or arbitrarily, as opposed to fully specified first-order reasons. Does this mean the end of judicial review of agency decisionmaking? Not in the slightest. The Administrative Procedure Act says that agency action may not be arbitrary and capricious, and we have proposed a straightforward interpretation of that command, requiring reasoned decisionmaking—an interpretation that is not larded with all the fat of current doctrine, and is thus more faithful to the Act’s text.[1][4]

    		”

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 Michigan Law Review, "Thin Rationality Review" 2016
    2. ↑ Harvard Law School, "Jacob Gersen," accessed August 9, 2018
    3. ↑ Harvard Law School, "Adrian Vermeule," accessed December 13, 2017
    4. ↑ 4.0 4.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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