AGENCY REASONS AT THE INTERSECTION OF EXPERTISE AND PRESIDENTIAL PREFERENCES

• Published in: Administrative law review 2019-07, Vol.71 (3), p.491-554
• Main Author: Roesler, Shannon
• Format: Article
• Language: English
• Subjects: Analysis; Expertise; Judicial process; Judicial review of administrative acts; Methods; Politics; Preferences; Presidential elections
• ISSN: 0001-8368; 2326-9154

Today, no one seriously challenges the descriptive premise that presidential preferences influence the decisions of administrative agencies. But this view of agency decisionmaking departs significantly from historical views. As the administrative state expanded in the early twentieth century, its proponents viewed agencies as bureaucratic experts capable of applying technical and scientific knowledge to pressing social problems. The expertise model of agency decisionmaking continues to inform contemporary judicial doctrine, even as some legal scholars have embraced the presidential-control model. This Article contributes to the debate regarding these two models of agency decisionmaking by analyzing the potential effects of each model on agencies’ evaluation of scientific knowledge and judicial review of agency reasoning regarding science. The Article begins with an overview of the history of the reason-giving requirement in judicial doctrine and a discussion of the role of “rationality” in reason giving. Both the expertise and the presidential-control models attempt to draw lines between rational (expert) judgment and political reasons. Line drawing is a futile exercise given the contingent nature of scientific knowledge, the value judgments inherent in policy science, and the post-positivist critique of knowledge generally. In addition, when agencies are subject to strong presidential control, they are likely to engage in “motivated reasoning” toward political ends. The Article concludes by proposing an approach to judicial review that recognizes the reality of agencies’ motivated reasoning about scientific knowledge, as well as the impossibility of drawing lines between scientific rationality and presidential preferences. By identifying the “danger signals” associated with motivated reasoning, judicial review can ensure that an agency’s role as presidential policymaker does not interfere with the agency’s statutory responsibilities to use expert judgment. Contrary to what some scholars have argued, when an agency is acting pursuant to a presidential directive, its decisions require more, not less, scrutiny.