Chief Justice Roberts’s Hard Look Review

March 5, 2021

The U.S. Supreme Court’s 1983 decision in Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co. announced a framework for judicial review of agency actions that are challenged as arbitrary and capricious. The decision, however, left two significant questions unresolved: How much political influence in agency decisionmaking is too much to fail judicial review? And may a reviewing court scrutinize the agency’s substantive policy choice or not? This Note argues that Department of Commerce v. New York and Department of Homeland Security v. Regents of the University of California—the Court’s most recent applications of State Farm—settle these questions.

This Note argues that Chief Justice Roberts’s answer to the question of how much political influence is “too much” under State Farm is that this is the wrong question to be asking. An agency’s “unstated reasons” for acting—such as political influences, motivations, presidential agendas, and the like—are excluded from the State Farm analysis. The only question for a court reviewing an agency decision pursuant to State Farm is whether the agency sufficiently engaged in reasoned decision-making.

Next, this Note maintains that Chief Justice Roberts’s answer to the question of whether judicial review pursuant to State Farm permits scrutiny of an agency’s substantive policy decision is a firm no, because it is the agency, and not the reviewing court, that must engage in substantive decision-making. The focus of judicial review pursuant to State Farm is not the substance of an agency’s decision but the reason-giving process that led the agency to its substantive decision.

Putting these two arguments together, this Note argues that the application of State Farm in Department of Commerce and Regents—referred to as Chief Justice Roberts’s “hard look review”—makes clear that it is an agency’s reasons for acting and its reasoning process that sit at the center of the Court’s review under State Farm.

March 2021

No. 4