Amicus Curiae Brief — Dep't of Commerce v. New York, 139 S. Ct. 1249 (2019) (No. 18-966)
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No. 18-966
IN THE
Supreme Court of the Anited States
UNITED STATES DEPARTMENT OF COMMERCE, et ai.,
Petitioners,
Vv.
STATE OF NEW YORK, et al.,
Respondents.
On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the Second Circuit
BRIEF OF RONALD A. CASS AND
CHRISTOPHER C. DEMUTH, SR., AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
RONALD A. CASS
Counsel of Record
Cass & ASSOCIATES, PC
10560 Fox Forest Drive
Great Falls, VA 22066-1743
(703) 438-7590
roncass@cassassociates.net
Counsel for Amici Curiae
March 6, 2019
a
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002
TABLE OF CONTENTS
I. Judicial Review Should Not Intrude on
Discretion Granted to Administrators by
De ccscinndcntiiatstisminneissmmmeniamieatiedeiieia
Il.
A.
Judicial Review of Actions Based on
Policy Considerations Implementing
Statutory Directives Should Be Dis-
tinguished from Statutory Interpreta-
GEG cenccneneconnerveresvssseonueviensionsilnsglaaiaanin
. Courts’ Role in Reviewing Discretion-
ary Agency Action under the APA Is
Strictly Limited ..................cccceeeeeeeeeeees
Courts Should Not Seek Extrinsic Evi-
dence of Administrators’ Motives for
Actions Challenged Under the APA..........
A.
Review of Agency Actions under the
APA Focuses on Lawfulness, Inc}nd-
ing Basis in Administrative Rev:d,
ft fe
. Concerns about Administrative Bias
and Prejudgment Apply in Other
Contexts and Are Best Addressed
through Other Means.......................06
(i)
13
17
17
22
ii
TABLE OF CONTENTS—Continued
Page
C. Intrusive Inquiries into Official Motives
Impair Perceived Legitimacy of Judi-
cial Processes and Separation of
iii
TABLE OF AUTHORITIES
CASES Page(s)
Action for Children’s Television v. Federal
Communications Commission,
564 F.2d 458 (D.C. Cir. 1977)................... 23
Air Transport Association of America, Inc.
v. National Mediation Board,
663 F.3d 476 (D.C. Cir. 2011)................... 23
American Trucking Associations v.
United States,
Ce 14, 15
Association of National Advertisers, Inc. v.
Federal Trade Commission,
627 F.2d 1151 (D.C. Cir. 1979), cert.
denied, 447 U.S. 921 (1980)...................... 23
Baltimore Gas & Electric Co. v. Natural
Resources Defense Council, Inc.,
I I iiaciiicieseaniiininieccinadinitlnacs 5
Barnhart v. Walton,
EE RSI ae 4,9
Camp v. Pitts,
ee ee a cretcesiennctrentsinstimensiinncen 19
Caperton v. A.T. Massey Coal Co., Inc.,
Christensen v. Harris County,
i ee 10
Christopher v. SmithKline Beecham Corp..,
TSB B.C’. BIBS (BOD) ...ccccccrecesosvecessccvesssese 4,9
Citizens to Preserve Overton Park v. Volpe,
— 9) |. |. eee 16
iv
TABLE OF AUTHORITIES—Continued
Page(s)
City of Arlington v. Federal
Communications Commission,
133 S.Ct. 1863 (BOIS) ............00.0..00.ccecceeeees 4,9
Department of Agriculture v. Moreno,
ee i cestccnccccssticccanteasiseececsses 20
Federal Communications Commission v.
Fox Television Stations, Inc.,
| 8 passim
Federal Communications Commission v.
National Citizens Committee for
Broadcasting,
Ey SIE ccctnnettntesscbdinietecsastotnsntecs 14, 15
Fiallo v. Bell,
A le 16
Gibson v. Berryhill,
411 U.S. G64 (10738)...........0.00.c0cccccccceeceeeees. 22
Gregoire v. Biddle,
177 F.2d 579 (2d Cir. 1949) ................00000. 21
Heckler v. Chaney,
470 U.S. 821 (19885)....................00. 3, 13, 14, 16
Kisor v. Wilkie,
No. 18-15, cert. granted, Dec. 11, 2018.... 4
Loving v. United States,
TS aoa 10
Marshall v. Jerrico, Inc.,
I ces innncecennnniicneditigininniite 23
MCI Telecommunications Corp. v. AT&T Co.,
I 3
v
TABLE OF AUTHORITIES—Continued
Page(s)
Michigan v. Environmental
Protection Agency,
136 S.Ct. BEBO (BO1S)..........cccccccccccccseesoeees 11
Morgan v. United States,
Ls ET CE Cees 6, 18, 19
National Cable & Telecommunications
Association v. Brand X Internet Services,
545 U.S. 967 (2005).........................022..... 5, 9,13
New York v. Department of Commerce,
No. 18-CV-2921 (S.D.N.Y., Jan. 15,
ri csitcstiadiintsiaGiecheinidiiniinndipedndiaianimecnndsaponest passim
Pacific States Box & Basket Co. v. White,
4! 0 ee 15
Romer v. Evans,
Be es CI i ccccneciosiscvesnndntssanesensones 20
Smiley v. Citibank (South Dakota), N.A.,
517 U.S. 735 (1996) (Smiley) ................00 passim
Trump v. Hawaii,
No. 17-956 (U.S. Jun. 26, 2018)............... passim
Tumey v. Ohio,
ES eee 22
United States v. American Trucking
Associations,
i I ons ccncitcseussasetpnesboesnesee 3
United States v. Morgan,
| a ae passim
United States v. Mead Corp..,
ee 4,9
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Utility Air Regulatory Group v.
Environmental Protection Agency,
134 S.Ct. 2427 (2014)...........ccccceeeeccceeeseeees 11
Ward v. Village of Monroeville,
I i ceeeigcttnnnnne 22
Wayman v. Southard,
23 U.S. (10 Wheat.) 1 (1825) .................... 10
Webster v. Doe,
486 U.S. 592 (1988)...............ccccccceeeeees 13, 14, 16
Withrow v. Larkin,
ee i II viccccnacnrccuntscesssncuesemessones 23
Ziglar v. Abbasi,
4 es 20
CONSTITUTION
US. Comat., art. I, sec. 8, of. B.........ccccccc00000. 14
ns I eesmimtiolegion 22
i fl d*=, Se 22
STATUTES
Administrative Procedure Act, 5 U.S.C.
> 8 EE ae en 3,13
I i ia 5,11, 14
ER Ee ce ee ee 3,11
STITT iss iesiiabiniicaiitcnteinthaiiceaninnnbeindgbadin passim
i a 17
ne a ee ee 17
Vii
TABLE OF AUTHORITIES—Continued
Page(s)
RENTER TENG fe eeN ye IS Nt 17
2, RSE EEA aa Spee eee ae 17
Census Act of 1790, 1 Stat. 101................... 14
Census Act of 1954, 68 Stat. 1012, 13 U.S.C.
ITN sidiniscaoactetsinaisiteacicibiabittnniientiecte aa 14
1 ESSENDON AR Aa A Sa Mn 14
CF ER ESRI Rats Seah Se a ee 14
OTHER AUTHORITIES
Larry Alexander & Saikrishna Prakash,
Delegation Really Running Riot, 93 Va.
L. Rev. 1035 (2007) .......cccccccccceccceeccocoeeees.
Jack M. Beermann, End the Failed
Chevron Experiment Now: How Chevron
Has Failed and Why It Can and Should
Be Overruled, 42 Conn. L. Rev. 779
10
Saat ieshpushthenibsiisnihnsiedidbetntanindaacinancicinds 9, 10, 17
Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction, 131
Harv. L. Rev. 417 (2017).....ccccccccccccccsceeeee.
Clark Byse, Judicial Review of Administra-
tive Interpretation of Statutes: An Analysis
of Chevron Step Two, 2 Admin. L.J. 255
“SRR a a Nob Nec nreh sa eI
Ronald A. Cass, Auer Deference: Doubling
Down on Delegation’s Defects, 87 Fordham
L. Rev. 531 (2018)............cccccccococessesesees 4, 12,17
Vili
TABLE OF AUTHORITIES—Continued
Page(s)
Ronald A. Cass, Delegation Reconsidered:
A Delegation Doctrine for the Modern
Administrative State, 40 Harv. J.L. &
Pub. Pol’y 147 (2016).............cccccccceseeeeseeeeees
Ronald A. Cass, Nationwide Injunctions’
Governance Problems: Forum-Shopping,
Politicizing Courts, and Eroding Consti-
tutional Structure, Geo. Mason Legal Stud.
Research Paper No. LS 18-22, Nov. 7,
2018, available at https://www.usgovern
10
mentspending.com/recent_spending... 24, 25, 26
Ronald A. Cass, The Rule of Law in
PMATEI CBG E) oneecscnsccsscccececcrscccccsosccscceceses
Ronald A. Cass, Vive La Deference?: Rethink-
ing the Balance Between Administrative
and Judicial Discretion, 83 Geo. Wash. L.
25
Rev. 1294 (2015)..........cccccseseeeeeeeeee 4, 10, 13, 16
Ronald A. Cass, Colin S. Diver, Jack M.
Beermann & Jody Freeman, Administra-
tive Law: Cases and Materials (7th ed.
Christopher DeMuth, OJRA at Thirty, 63
Admin. L. Rev. 101 (2011) .............cccccccee
Albert Venn Dicey, Introduction to the
Study of the Law of the Constitution
CBR GIB Cri cnnsinccesnscsesocsscnennstsevvesensons
Michael Dorf, Prediction and the Rule of
Law, 42 UCLA L. Rev. 651 (1995)............
25
ix
TABLE OF AUTHORITIES—Continued
Page(s)
John F. Duffy, Administrative Common Law
in Judicial Review, 77 Tex. L. Rev. 113
Cap aiiictiventchanpestiiasadichiantvohindendejuaediiomaenn
William N. Eskridge, Jr. & Lauren E. Baer,
The Continuum of Deference: Supreme
Court Treatment of Agency Statutory
Interpretation from Chevron to Hamdan,
96 Geo. L.J. 1083 (2008) ..............csseeeereeees
Cynthia R. Farina, Statutory Interpretation
and the Balance of Power in the Admin-
istrative State, 89 Colum. L. Rev. 452
4, 10
(RD cvnccencccrcccnsecscesessecsnecneescasesssesssonacees 4, 10,17
Lon L, Fuller, The Morality of Law (rev. ed.
Michael Herz, Deference Running Riot:
Separating Interpretation and Lawmaking
Under Chevron, 6 Admin. L.J. Am. U.
SE Ce nitticntasttnesitidnideiidiciassenstaldetitienions
Gary Lawson, Delegation and Original
Meaning, 88 Va. L. Rev. 327 (2002)..........
Gary S. Lawson, Reconceptualizing Chevron
and Discretion: A Comment on Levin and
Rubin, 72 Chi.-Kent L. Rev. 1377 (1997).
Gary Lawson & Stephen Kam, Making Law
out of Nothing at All: The Origins of the
Chevron Doctrine, 65 Admin. L. Rev. 1
FE iihientcncsyuskennecideknansncnhtquadindgionicncionceennces
25
10
10
17
x
TABLE OF AUTHORITIES—Continued
Page(s)
Elbert Lin, States Suing the Federal Gov-
ernment: Protecting Liberty or Playing Pol-
itics?, 52 U. Rich. L. Rev. 633 (2018) ... 8, 24, 26
Sarah N. Lynch, “Attorney General Vows to
Fight Nationwide Injunctions,” Reuters,
Sep. 13, 2018, available at https:/Awww.
reuters.com/article/us-usa-justice-courts/
attorney-general-vows-to-fight-nationwide-
court-injunctions-id USKCN 1LT34<A ..........
Thomas W. Merrill, Justice Stevens and the
Chevron Puzzle, 106 Nw. U. L. Rev. 551
ERE Ns Li ca Rete
Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 Geo. LJ. 833
Alan Neuhaus, “State Attorney Generals
Lead the Charge Against President
Donald Trump,” U.S. News & World
Rep., Oct. 27, 2017, available at https://
www.usnews.com/news/best-states/artic]
es/2017-10-27/state-attorneys-general-le
ad-the-charge-against-president-donald-tr
Paul Nolette, “State Attorneys General
Have Taken Off as a Partisan Force in
National Politics,” Wash. Post, Oct. 23,
2017, available at https://*www.washing
tonpost.com/news/monkey-cage/wp/20 17/
10/23/state-attorneys-general-have-taken-
off-as-a-partisan-force-in-national-politic
s/utm_term=.e5530ca3babb ....................
24
24
xi
TABLE OF AUTHORITIES—Continued
Page(s)
Neomi Rao, Administrative Collusion: How
Delegation Diminishes the Collective Con-
gress, 90 N.Y.U. L. Rev. 1463 (2015)........ 10-11
Antonin Scalia, A Matter of Interpretation:
Federal Courts and the Law (Amy
| nn 25
Antonin Scalia, The Rule of Law as a Law
of Rules, 56 U. Chi. L. Rev. 1175 (1989) .. 25
George B. Shepherd, Fierce Compromise:
The Administrative Procedure Act Emerges
from New Deal Politics, 90 Nw. U. L. Rev.
SEE Cte icrichetuibusidsacsbncensipnencssbiateenniesionss 12
Peter L. Strauss, “Deference” Is Too
Confusing—Let’s Call Them “Chevron
Space” and “Skidmore Weight,” 112
Colum. L. Rev. 1143 (2012) ........eeeeee 10, 13
U.S. Department of Justice, Attorney
General’s Manual on the Administrative
Procedure Act 108 (1947) ..........cccccceeeeeeeees 12, 15
IN THE
Supreme Court of the Anited States
No. 18-966
UNITED STATES DEPARTMENT OF COMMERCE, et al.,
Petitioners,
Vv.
STATE OF NEW YORK, et al.,
Respondents.
On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the Second Circuit
BRIEF OF RONALD A. CASS AND
CHRISTOPHER C. DEMUTH, SR., AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
INTEREST OF AMICI CURIAE'
Amici are teachers, scholars, and former govern-
ment officials who each have had extensive engagement
with administrative law over a period of more than 40
‘ The parties have consented in writing to the filing of this
brief, and their letters of consent have been filed with the Clerk.
No party’s counsel authored this brief in whole or in part, and no
person or entity other than amici or their counsel made a mone-
tary contribution intended to fund its preparation or submission.
2
years. Amici have served in a variety of positions in
the United States government, including positions
in the Executive Office of the President, executive
departments, independent agencies, and the judicial
branch. Amici have been responsible for making deci-
sions in official capacities and for reviewing agency
decisions. They also have been deeply involved with
organizations devoted to administrative law and have
taught classes and written numerous articles and books
on matters implicated in the questions presented in
this case. This brief reflects amici’s long-standing
interests in the subject of administrative law and
particularly in standards for judicial review of
administrative action.
SUMMARY OF ARGUMENT
The questions presented in this case address (1) the
manner in which courts decide whether an admin-
istrative action is “arbitrary” or “capricious” or “an
abuse of discretion” and (2) the degree to which courts
are permitted to inquire into the particular considera-
tions in the mind of an administrator, seeking to
obtain information outside the administrative record
to determine an administrator’s motivation. Both
matters are critical to the dividing line between
judicial authority and the authority reposed in other
branches of government. These are vital aspects of
assuring that distinct governmental powers remain
committed to the branches to which they are constitu-
tionally assigned.
The decision below is unusual in the degree to which
it substitutes judicial determinations for administra-
tive ones on matters committed to agency discretion,
see New York v. Department of Commerce, No. 18-CV-
2921, at 194-253 (S.D.N.Y., Jan. 15, 2019) (SDNY
Decision) and for its intrusive inquiry into (and
3
reliance on) the motives of official decision-makers, see
id., at 31-102, 245-53.
These aspects of the SDNY Decision, however, also
are emblematic of broader misunderstandings of the
review provisions embodied in the Administrative
Procedure Act (APA), 5 U.S.C. §§ 701-706. The errors
made in the decision below illustrate the need for this
Court to clarify both (1) the appropriate standard for
review of action that is committed to agency discretion
and (2) limitations on judicial inquiry into bases for
administrative decisions focused on official motive,
especially inquiries that delve into matters outside the
administrative record presented in court.
First, there is a stark difference between the appro-
priate standards for judicial review of questions of
statutory interpretation and judicial review of admin-
istrative implementation of statutory provisions. Under
the APA, as well as prior law, courts decide matters of
legal interpretation. See, e.g., 5 U.S.C. § 706; United
States v. American Trucking Associations, 310 U.S.
534, 544 (1940). Agencies decide matters of imple-
mentation subject to review that may be searching
on some questions but is deferential on matters within
an agency’s policy discretion. Compare, e.g., MCI
Telecommunications Corp. v. AT&T Co., 512 U.S. 218,
228-32 (1994), with Heckler v. Chaney, 470 U.S. 821,
831-35 (1985) (Chaney). The distinction between these
subjects and review standards has been misunder-
stood, with courts at times deferring to administrative
decisions on core matters of legal interpretation and
other times inserting themselves into matters of
implementation committed to agency authority. See,
e.g., Clark Byse, Judicial Review of Administrative
Interpretation of Statutes: An Analysis of Chevron Step
Two, 2 Admin. L.J. 255, 262-63, 266-67 (1988);
4
Ronald A. Cass, Auer Deference: Doubling Down on
Delegation’s Defects, 87 Fordham L. Rev. 531, 537-39,
542-47 (2018) (Auer Deference); Ronald A. Cass,
Vive La Deference?: Rethinking the Balance Between
Administrative and Judicial Discretion, 83 Geo. Wash.
L. Rev. 1294, 1311-19 (2015) (Rethinking); John F.
Duffy, Administrative Common Law in Judicial Review,
77 Tex. L. Rev. 113, 115, 120 (1998); William N.
Eskridge, Jr. & Lauren E. Baer, The Continuum of
Deference: Supreme Court Treatment of Agency Statutory
Interpretation from Chevron to Hamdan, 96 Geo. L.J.
1083, 1087-89 (2008); Cynthia R. Farina, Statutory
Interpretation and the Balance of Power in the Admin-
istrative State, 89 Colum. L. Rev. 452, 453-56, 472-75
(1989).
Recognition of confusion over the proper standards
for review, as well as their importance, has prompted
this Court to revisit questions respecting their contours
repeatedly. See, e.g., City of Arlington v. Federal
Communications Commission, 133 S.Ct. 1863 (2013)
(City of Arlington); Christopher v. SmithKline Beecham
Corp., 132 S.Ct. 2156 (2012) (Christopher); Barnhart
v. Walton, 535 U.S. 212 (2002) (Barnhart), United
States v. Mead Corp., 533 U.S. 218 (2001) (Mead). The
Court is again addressing limits on deference to agency
interpretations of law—specifically, the meaning of an
agency regulation—this Term in Kisor v. Wilkie, No.
18-15, cert. granted, Dec. 11, 2018.
The instant case focuses attention not on the limits
to deference but on the limits for judicial review, under
APA § 706(2)(A), of an exercise of policy discretion
committed to an agency by law. Many statutes commit
some measure of discretion to administrators while
setting boundaries around that discretion. The law’s
directives may tightly constrain the administrative
5
decision or may give considerable leeway. But the
reviewing court’s task is to interpret the limits set by
law and to review exercises of discretion only for the
sorts of unreasonable action that the APA proscribes:
action that is arbitrary, capricious, or an abuse of
discretion. See APA, 5 U.S.C. § 706(2)(A). This does
not include review to determine if an action is less
well-reasoned than a judge would like, or weighs
evidence and considerations differently than the judge
would have, or is associated with political considera-
tions that the judge would not embrace. See, e.g.,
Baltimore Gas & Electric Co. v. Natural Resources
Defense Council, Inc., 462 U.S. 87, 103 (1983).
Although the aspect of a decision that is committed
to agency discretion is excepted from review, § 701(a)(2),
review of other aspects of the exercise of discretion
is generally available to check abuses of discretionary
authority. That review should assess whether a decision
is so far outside the bounds of reasoned decision-
making as to constitute action that is arbitrary (i.e.,
unreasoned), capricious (based on whim), or abuses
discretion (based on reasons that cannot possibly be
credited as appropriate grounds for the action being
reviewed). Federal Communications Commission v.
Fox Television Stations, Inc., 556 U.S. 502, 511-14
(2009) (Fox Television Stations); National Cable &
Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967, 981, 989 (2005) (Brand X);
Smiley v. Citibank (South Dakota), N.A.,517 U.S. 735,
740-47 (1996) (Smiley).
The SDNY Decision evidences a striking disregard
for limitations associated with review of matters com-
mitted to the discretion of administrative officers. The
sort of searching inquiry engaged in below goes beyond
careful review to assure that none of the grounds for
6
overturning discretionary actions applies. It amounts
to judicial revision of the task committed to the
administrator, substituting judicial for administrative
judgment on every significant aspect of the decision.
Indeed, the decision below would overstep the bounds
of the sort of internal evaluation typically done by
executive branch officials reviewing major decisions of
other officials—even though executive branch review,
which takes place within the same branch authorized
to implement the law, is naturally in keeping with a
more searching inquiry into the grounds for decision.
See, e.g., Christopher DeMuth, OJRA at Thirty, 63
Admin. L. Rev. 101, 106 (2011). (One of this brief’s
amici oversaw this process as Administrator of the
Office of Information and Regulatory Affairs. See id.)
Second, the SDNY Decision makes a mistake that is
both contrary to law and dangerous in its potential
effects on governance by seeking to plumb the motiva-
tion of administrative decision-makers, rather than
evaluating the consistency of their actions with legal
standards. See SDNY Decision, at 31—102, 245-53.
This Court has made clear that, in general, for a court
reviewing agency action, it is “not the function of the
court to probe the mental processes” of the administra-
tor. Morgan v. United States, 304 U.S. 1, 18 (1938)
(Morgan II). The Court has warned that delving into
the motives and thought processes of a decision-maker
in a co-equal branch of government would be “destruc-
tive” of the responsibility of administrators and would
undermine “the integrity of the administrative process.”
United States v. Morgan, 313 U.S. 409, 422 (1941)
(Morgan IV).
Last term, in Trump v. Hawaii, No. 17-956 (U.S.
Jun. 26, 2018) (Trump v. Hawaii), this Court exam-
ined another challenge to an administrative action
7
predicated in part on the assertion that claimed bases
for the action were pretextual and that the actual
bases were constitutionally proscribed (so that the
action assertedly violated plaintiffs’ legal rights). The
Court stated that there are exceptions to the general
rule that courts will not look behind the stated reasons
for administrative action, but those exceptions are
narrow and reserved for highly unusual circum-
stances. See Trump v. Hawaii, maj. op., slip op. at 32—
33. The Court concluded that the exceptions did not
apply, see id., maj. op., slip op. at 32-34, and pro-
ceeded to review the challenged action to see if it was
supported by a merely rational basis, see id., maj. op.,
slip op. at 33-37.
Amici strongly support the Court’s traditional reluc-
tance to examine the motives of administrative
decision-makers exercising legally granted authority.
Having been government decision-makers as well as
academic critics of government decisions, amici under-
score the threat to constitutionally separated powers
if reviewing judges seek to divine the motives of
officials in another branch of government, investigat-
ing their intentions rather than checking the legality
of their decisions.
Amici recognize that answers to the question when
courts may undertake an examination of administra-
tive motivation are contested. Compare id., maj. op.,
slip op. at 32—33, with id., slip op. at 3-8 (Breyer, J.,
dissenting) (making an “as applied” assessment of the
bona fides of the asserted bases for the administrative
action); id., slip op. at 1-23 (Sotomayor, J., dissenting)
(assessing purpose of administrative action based on
extrinsic evidence). In amici’s view, however, except
in extraordinary circumstances, that inquiry is not
appropriate. It is especially inappropriate if it relies on
8
extrinsic evidence, and most emphatically if it is basea
on queries to or examination of decision-makers. Such
inquiries will chill discussion of potential government
actions among a wider circle of officials—even though
discussion among a broader set of officials frequently
improves decisions. Pursuit of extra-record evidence of
official motives in court should not be countenanced
for the same reason that calling judges before the dock
to answer questions about the motives behind their
decisions is not permitted. See, e.g., Morgan IV, 313
U.S. at 422.
Finally, changing the traditional, APA-based stand-
ard of review to accommodate inquiries into official
motives encourages use of judicial review not strictly
as a means for keeping official actions within legal
bounds but as extensions of political disputes into the
judicial domain. This undermines the perceived legiti-
macy of the courts and intrudes on decisions committed
to other branches. Those concerns have been voiced in
connection with discussion of the scope of judicial
remedies and their implications for forum-shopping.
See, e.g., Trump v. Hawaii, slip op. at 5-10 (Thomas,
J., dissenting). The use of judicial challenges as
political weapons has been observed by others, includ-
ing politically-selected officials who have participated
in them. See, e.g., Elbert Lin, States Suing the Federal
Government: Protecting Liberty or Playing Politics? , 52
U. Rich. L. Rev. 633 (2018) (describing coordination
among politically-allied state attorneys general and
other groups in legal challenges). Changing the rules
of judicial review to accommodate concerns about
motives exacerbates problems associated with the
political use of judicial fora.
9
ARGUMENT
I. Judicial Review Should Not Intrude on
Discretion Granted to Administrators by
Law.
A. Judicial Review of Actions Based
on Policy Considerations Implementing
Statutory Directives Should Be Distin-
guished from Statutory Interpretation.
The appropriate standards for judicial review of
administrative actions have been the most discussed
questions in administrative law—and among the most
discussed questions in all of American law—for the
past 35 years. See, e.g., Jack M. Beermann, End the
Failed Chevron Experiment Now: How Chevron Has
Failed and Why It Can and Should Be Overruled, 42
Conn. L. Rev. 779, 782 (2010); Gary Lawson & Stephen
Kam, Making Law out of Nothing at All: The Origins
of the Chevron Doctrine, 65 Admin. L. Rev. 1, 2 (2013);
Thomas W. Merrill, Justice Stevens and the Chevron
Puzzle, 106 Nw. U. L. Rev. 551, 552-53 (2012). This
reflects both the standards’ importance and the lack
of clarity respecting them. Standards of review are
critical to the dividing line between judicial authority
and the authority reposed in other branches of gov-
ernment. They are central to assuring that distinct
governmental powers given to different branches of
government remain committed to the branches to
which they are constitutionally assigned. To that end,
this Court has repeatedly endeavored to clarify the
contours of the standards for judicial review of admin-
istrative action. See, e.g., City of Arlington, supra, 133
S.Ct. at 1868-73; Christopher, supra, 132 S.Ct. at
2165-69; Fox Television Stations, supra, 556 U.S. at
511-14; Brand X, 545 U.S. at 981-989; Barnhart,
supra, 532 U.S. at 518-22; Mead, supra, 533 US. at
10
530-34; Christensen v. Harris County, 529 U.S. 576,
587 (2000); Smiley, supra, 517 U.S. at 740-47.
Much academic commentary has focused on the
distinction between standards for review of statutory
interpretation by administrators and review of policy
decisions that often are framed in the same terms as
statutory grants of administrative authority. See, e.g.,
Beermann, supra at 788-91, 797-99, 805-07; Byse,
supra at 261-67; Cass, Rethinking, supra at 1311-15;
Eskridge & Baer, supra at 1123-35; Farina, supra at
466-67, 476-79, 499-502; Michael Herz, Deference
Running Riot: Separating Interpretation and Lawmaking
Under Chevron, 6 Admin. L.J. Am. U. 187, 198-200
(1992); Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 Geo. L.J. 833, 863-64, 870—72
(2001); Peter L. Strauss, “Deference” Is Too Confusing—
Let’s Call Them “Chevron Space” and “Skidmore
Weight,” 112 Colum. L. Rev. 1143, 1145-50 (2012).
Statutory interpretation is the province of the courts;
but decisions necessary to implement the laws
commonly rest with administrative officials, who fre-
quently invoke statutory terminology to explain their
policy choices. So long as the delegation of discretion
is consistent with the Constitution’s commitment of
the law-making power to Congress,’ and the action of
* The evidence of legislative commitment of discretion does not,
of course, resolve the question whether the degree and nature of
the discretion accorded violate strictures on delegation of
legislative power. See, e.g., Loving v. United States, 517 U.S. 748,
757-58 (1996); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42—
43 (1825); Larry Alexander & Saikrishna Prakash, Delegation
Really Running Riot, 93 Va. L. Rev. 1035, 1042-43 (2007); Ronald
A. Cass, Delegation Reconsidered: A Delegation Doctrine for the
Modern Administrative State, 40 Harv. J.L. & Pub. Pol’y 147,
151-61, 177 (2016); Gary Lawson, Delegation and Original Meaning,
88 Va. L. Rev. 327, 335-53 (2002); Neomi Rao, Administrative
11
the administrators does not exceed the scope of
statutorily-granted discretion, the choice of discretion-
ary actions is decidedly the province of other branches,
not the courts.
Although this distinction between interpretation
and implementation has been a source of confusion,
the standards applicable to the two distinct sorts of
decision are spelled out in the APA. The APA directs
reviewing courts to “decide all relevant questions of
law [and] interpret constitutional and statutory provi-
sions...” 5 U.S.C. § 706. It excepts agency action from
review “to the extent that .. . agency action is commit-
ted to agency discretion by law.” 5 U.S.C. § 701(a)(2).
It also directs that courts are to “hold unlawful and set
aside agency actions . . . found to be. . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
Decisions on questions of law, such as the meaning
of a statutory provision, plainly are committed to the
courts. Reviewing judges are instructed to decide legal
questions and to interpret legal provisions. Courts’
authority over legal questions includes interpretation
of the scope of discretion granted by law. See, e.g.,
Michigan v. Environmental Protection Agency, 135
S.Ct. 2699, 2706-07 (2015); Utility Air Regulatory
Group v. Environmental Protection Agency, 134 S.Ct.
2427, 2439-49 (2014). Policy authority is exercised in
the space permitted for discretionary decisions within
the bounds of law. Unlike review of questions of law,
once the scope of policy authority is defined, review of
its exercise focuses on finding whether actions are
arbitrary, capricious, or an abuse of discretion. These
Collusion: How Delegation Diminishes the Collective Congress,
90 N.Y.U. L. Rev. 1463 (2015).
12
are narrowly tailored standards prohibiting actions
that are without reason (arbitrary), that respond to
considerations that are inexplicable, transient, and
unrelated to the merits of the matter (capricious), or
that turn on considerations that cannot be credited
as appropriate bases for decision (abuse of discretion,
such as, for example, if the Federal Communications
Commission decided to grant broadcast licenses only
to Commissioners’ relatives). See, e.g., Cass, Auer
Deference, supra at 539. The concluding phrase of
§ 706(2)(A), telling courts to set aside decisions “other-
wise not in accordance with law” cannot be read as
authorizing significant further review without violat-
ing basic rules of statutory construction and making
the rest of the section redundant.
The standards set forth in § 706(2)(A) do not contem-
plate reconsideration of the merits of policy choices,
only their fit with basic criteria for reasoned decision.
See, e.g., U.S. Department of Justice, Attorney General’s
Manual on the Administrative Procedure Act 108
(1947) (Attorney General’s Manual) (explaining APA’s
consistency with prior law; APA provision for judicial
review “does not empower a court to substitute its
discretion for that of an administrative agency”).
Commentary on behalf of the Attorney General at the
time of APA’s enactment emphasized that substitut-
ing judicial for administrative discretion would depart
from prior law, result in the courts exercising execu-
tive authority, and violate the constitutional allocation
of powers. See id., at 105-08. Even writings expressing
skepticism of the Attorney General’s Manual as a neutral
presentation of the law, see, e.g., George B. Shepherd,
Fierce Compromise: The Administrative Procedure Act
Emerges from New Deal Politics, 90 Nw. U. L. Rev.
1557, 1682-83 (1996), do not provide reason to believe
13
that the APA approved substitution of judicial for
administrative discretion on policy matters.
Thus, under the APA (and similar statutes), judicial
review of policy decisions should not be subject either
to the de novo review appropriate for issues of law that
are in the courts’ domain or to review that is so
intensive that it effectively becomes de novo review.
See, e.g., Cass, Rethinking, supra at 1314-15; Merrill
& Hickman, supra at 836; Strauss, supra at 1145-50.
Indeed, past decisions suggest a line of demarcation
for judicial review far short of that result. See, e.g., Fox
Television Stations, 556 U.S. at 511-14; Brand X, 545
U.S. at 981, 989; Smiley, 517 U.S. at 740-47; Webster
v. Doe, 486 U.S. 592, 600-01 (1988) (Webster); Chaney,
470 U.S. at 831-35.
B. Courts’ Role in Reviewing Discretion-
ary Agency Action under the APA Is
Strictly Limited.
The decision below purports to apply the review
provisions embodied in the APA, 5 U.S.C. §§ 701-706.
See SDNY Decision, at 194-253. The SDNY Decision
describes the course of events that led to the chal-
lenged administrative action in great detail. It recites
extensively the various considerations advanced by
interested parties and by public officials. Yet the tenor
of the court’s recitation of these considerations, and
its subsequent disposition of parties’ claims, indicates
that the court substituted judicial judgment for admin-
istrative judgment.
The question presented here, however, is whether
§ 706(2)(A) can be read to provide for the sort of
searching review evident in the SDNY Decision, and,
if so, whether that can co-exist with accepted legal and
constitutional standards. In the view of amici, the
14
lower court’s decision seriously misapplies § 706(2)(A)
of the APA, contravening limitations on judicial review
contained in the APA and long recognized by this
Court. See, e.g., Fox Television Stations, 556 U.S. at
511-14; Smiley, 517 U.S. at 740-47 (1996); Webster,
486 U.S. at 600-01; Chaney, 470 U.S. at 831-35;
Federal Communications Commission v. National
Citizens Committee for Broadcasting, 436 U.S. 775,
813—14 (1978) (Citizens Committee); American Trucking
Associations v. United States, 344 U.S. 298, 314-15
(1953) (Trucking Associations).
There is no question that the action challenged in
this litigation is properly subject to review under APA
§ 706(2)(A), as it is action for which the Secretary of
Commerce exercises discretionary authority under stat-
utory instructions. Responsibility for the decennial
census is constitutionally assigned to Congress, see
U.S. Const., art. I, sec. 2, cl. 3, and responsibility for
conducting the census is delegated to administrators
by law. Congress first assigned that function to mar-
shals. See Census Act of 1790, 1 Stat. 101. Currently,
the responsibility for conducting the census and mak-
ing decisions in support of that task resides with the
Department of Commerce. See Census Act of 1954, 68
Stat. 1012, 13 U.S.C. §§ 1 et seq. The law provides
broad discretion to the Secretary of Commerce. See,
e.g., id. at §§ 4, 141. That discretion undoubtedly
includes authority to select the questions asked in the
decennial census. The Secretary’s discretion is not so
broad as to bar any review under the APA’s declara-
tion that its review provisions do not apply “to the
extent that” matters are “committed to agency discre-
tion by law.” 5 U.S.C. § 701(a)(2). But the discretion
granted to the Secretary of Commerce plainly is broad
enough that his action is appropriately reviewed
under APA § 706(2)(A).
15
Section 706(2)(A) was designed as a check on misuse
of administrative discretion, see, e.g., Ronald A. Cass,
Colin S. Diver, Jack M. Beermann & Jody Freeman,
Administrative Law: Cases and Materials 126-27 (7th
ed. 2016); Trucking Associations, 344 U.S. at 314—15.
The limited nature of such review was clearly under-
stood in cases that preceded the APA and many decided
following the APA’s enactment. See, e.g., Citizens
Committee, 436 U.S. at 813-14; Trucking Associations,
344 U.S. at 314-15; Pacific States Box & Basket Co. v.
White, 296 U.S. 176, 185-86 (1935); Attorney General’s
Manual, supra at 105-08. That understanding has
been reaffirmed more recently as well. See, e.g., Fox
Television Stations, 556 U.S. at 511-14.
However, the court below condurted the | »(icial
review function in a manner more akin to de novo
review than to the review provided for under that APA
section. The district court effectively compares the
administrator’s judgments leading to and supporting
the action taken to the court’s own view of better
judgments, ones more sensitive to concerns that reso-
nate with the district judge and that balance costs and
benefits in a manner more congenial to the judge. See
SDNY Decision, at 225-45.
Despite the care taken in delineating reasons for
preferring a different set of evaluations to those made
by the Secretary of Commerce, the district court’s
approach seriously misunderstands the standard for
review in APA § 706(2)(A). See, e.g., Fox Television
Stations, 556 U.S. at 511-14; Smiley, 517 U.S. at 740-
47 (1996). The skepticism of the court below respecting
all aspects of the administrative decision permeates
the court’s discussion, including discussion of the
administrative action’s consistency with APA § 706(2)(A),
underscoring the intrusive nature of the court’s review.
16
Perhaps, the court below was misled by statements
in decisions such as Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 416 (1971) (Overton Park),
respecting the need for an inquiry that is “searching
and careful,” to support review that goes well beyond
assuring that exercises of discretionary authority are
not arbitrary or capricious or an abuse of discretion.
See, e.g., SDNY Decision, at 197. The decision below
seems to give weight to that statement, even though
Overton Park also cautioned that the “standard of
review is a narrow one.” Overton Park, 401 U.S. at 416.
Even if the decision below is not entirely guided by this
Court’s decision in Overton Park, the special circum-
stances in that case merit emphasis along with
instruction that the appropriate standard of review for
arbitrariness, capriciousness, or abuse of discretion
insists on congruence with standards of reason that
are within the bounds of statutory command, not on
consistency with reviewers’ preferences.
The lower court’s misunderstanding presents a
special difficulty when applied to a matter of great
public import; even more relevant to the interests of
amici, it threatens to undermine the division between
courts’ role and the role constitutionally assigned to
the political branches. Cf. Trump v. Hawaii, slip op. at
5-10 (Thomas, J., concurring) (discussing threat to
constitutional structure from judicial remedies that
unduly intrude into decisions committed to political
branches). Sensitivity to the importance of this divid-
ing line—to the separation of powers that is central to
constitutional structures—is visible in numerous cau-
tions from this Court respecting the limits of judicial
review. See, e.g., Trump v. Hawaii, maj. op., slip op. at
30-32; Webster, 486 U.S. at 600-01; Chaney, 470 U.S.
at 830-35; Fiallo v. Bell, 430 U.S. 787, 792, 799 (1977);
Morgan IV, 313 U.S. at 422. The same can be said of
17
standards, such as those in 5 U.S.C. §§ 706(2)(B)4D),
(F), which are less deferential but address matters
within the core competence (and legal assignment) of
the judiciary. See, e.g., Cass, Rethinking, supra at
1313-14. See also Beermann, supra at 788; Farina,
supra at 472-75; Gary S. Lawson, Reconceptualizing
Civevron and Discretion: A Comment on Levin and
Rubin, 72 Chi.-Kent L. Rev. 1377, 1877—78 (1997).
The APA standards of review encompassed in 5
U.S.C. § 706(2)(A)—review to identify “arbitrary” or
“capricious” actions or actions that constitute an “abuse
of discretion”—are narrow, focused, and specific. In
contrast to review for administrative decisions that
contravene constitutional or statutory commands, 5
U.S.C. §§ 706(2)(B), 706(2)(C), the specific instructions
in § 706(2)(A) identify actions that violate basic
requirements of reasoned decision-making. That stand-
ard is plainly consistent with the assignment of
discretion to administrators and with the division of
responsibilities among the branches. See, e.g., Cass,
Auer Deference, supra at 538-39. The decision of the
court below exceeds the scope authorized by APA
§ 706(2)(A).
II. Courts Should Not Seek Extrinsic Evi-
dence of Administrators’ Motives for
Actions Challenged under the APA.
A. Review of Agency Actions under the
APA Focuses on Lawfulness, Including
Basis in Administrative Record, Not on
Motives.
The second question presented—whether the court
below improperly sought and based its decision on
extrinsic information respecting (or from which the
court inferred) the motivations behind the action by
18
the Secretary of Commerce—also presents a matter of
both considerable and increasing importance. The
answer to this question, however, should be entirely
clear: courts should not inquire into official motives,
only into the consistency of official decisions with legal
requirements.
The starting point for evaluation of the issue, as this
Court has stated repeatedly over the past three-
quarters of a century, is the longstanding rule that, in
general, when reviewing agency action, it is “not the
function of the court to probe the mental processes” of
the administrator. Morgan II, 304 U.S. at 18. Three
years after this Court’s decision in Morgan II, in a
continuation of the litigation that first elicited Chief
Justice Hughes’ memorable phrase, this Court repeated
that remonstrance. Justice Frankfurter, writing for
the Court in Morgan IV, observed that seeking to
examine the motivations of an administrator—like
seeking to examine the motivations of a judge—would
be “destructive” of the “responsibility” of the official
whose motivations are the subject of inquiry and
would undermine “the integrity of the administrative
process.” Morgan IV, 313 U.S. at 422.
In particular, this Court has made plain that use of
judicial processes such as hearings and depositions to
inquire directly into the thinking of administrative
decision-makers is inappropriate. That was the focus
of the second of the four Morgan cases decided by this
Court. See Morgan II, 304 U.S. at 18. That is also an
error made by the court below in the instant case. Yet,
this case also presents an opportunity to identify broader
limits on judicial inquiries into official motives.
Justice Frankfurter’s analogy to probing the actual
motivation behind a judicial decision is apt. See
Morgan IV, 313 U.S. at 422. Disappointed litigants
19
and other critics of judicial decisions may be so certain
of the correctness of their position that they greet any
contrary decision with suspicion. Every judge is famil-
iar with speculation that something in the judge’s
background, personal life, religion, or past political
associations explains the real basis for a decision. Yet
appellate courts routinely review lower court decisions
for consistency with the law and do not permit counsel
directly to question a judge about his or her thought
processes leading to a decision or to subpoena law
clerks for similar inquiries.
This Court has stated that the role of a court review-
ing administrative actions is comparably circumscribed.
Courts properly look at the administrative record and
base a judgment on that; they do not hold hearings on
the decision-maker’s thinking about the action taken
or try to deduce that from other extrinsic evidence.
See, e.g., Trump v. Hawaii, maj. op., slip op. at 32—33;
Camp v. Pitts, 411 U.S. 138, 142—43 (1973); Morgan
IV, 313 U.S. at 422; Morgan II, 304 U.S. at 18.
In general, the appropriate judicial inquiry asks
whether the official who has taken the challenged
administrative action can offer an explanation stating
considerations that either plausibly or rationally
support the action taken. See, e.g., Trump v. Hawaii,
maj. op., slip op. at 32—34. As a rule, a contention that
an official has offered reasons in support of an action
as mere pretexts to obscure an inappropriate basis for
action, such as bias in favor of one party or against
another party, will not be entertained. That is true
both in the context of APA challenges to decisions that
are largely within the deciding official’s discretion and
in the context of challenges under other auspices, such
as claims predicated on constitutional violations for
which plaintiffs assert a cause of action implied in the
20
constitutional right. See, e.g., Ziglar v. Abbasi, 137
S.Ct. 1843 (2017).
This Court has recognized exceptional cases in
which claims have been accepted that “it is impossible
to ‘discern a relationship to legitimate state interests,’
or that the policy is inexplicable by anything but
animus.” Trump v. Hawaii, maj. op., slip op. at 33
(quoting Romer v. Evans, 517 U.S. 620, 632, 635 (1996)
(Romer)). Those are cases involving actions that this
Court said “lack any purpose other than a ‘bare...
desire to harm a politically unpopular group.” Trump
v. Hawaii, maj. op., slip op. at 33 (quoting Department
of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)
(Moreno)).
This is an extremely narrow category of cases and
an exception not applicable here. Yet, even in these
cases, the sort of inquiries conducted by the court
below—seeking evidence that the explanations given
were in fact pretextual—would be unacceptable.
Expanding this narrow category of cases such as
Romer and Moreno to cases such as the instant case
would threaten to convert routine disputes over gov-
ernment policy into debates over the bona fides of the
decision-makers.
As Justice Frankfurter’s analogy to judicial deci-
sions illustrates, the distinction between reviewing a
decision and seeking to divine the motivation of the
decision-maker is essential to maintaining proper
respect for government. Amici, as former government
officials who have been privy to administrative decision-
making in many different contexts, underscore the
destructive nature of inquiries into official motives.
Such inquiries would discourage discussion of poten-
tial acticns among broader groups of officials. Among
other experiences, we have seen first-hand the effects
21
of rules that reduce the privacy of official communica-
tions among principal officers in multi-member agencies:
these rules deter collegial discourse on the most
important agency decisions. Chilling honest dialogue
on important issues among decision-makers impairs
the quality of official decisions and increases the
frictions in and costs of agency operation.
Similar concerns informed the judgment of the
United States Court of Appeals for the Second Circuit,
announced by Chief Judge Learned Hand some 70
years ago, in Gregoire v. Biddle, 177 F.2d 579 (2d Cir.
1949) (Gregoire). Gregoire sued five federal officials,
including two Attorneys General of the United States,
asserting that his arrest and incarceration were based
on pretext and were in fact motivated by malice. The
circuit decision upheld the suit’s dismissal. Judge
Hand’s opinion sympathized with concerns that officials
not act willfully and maliciously to violate the law and
harm individuals, but explained that those concerns
did not justify burdening the far broader class of
officials who might be called on to justify their motives
in court. See Gregoire, 177 F.2d at 580-81. After
reviewing the precedents, Hand concluded that “it has
been thought in the end better to leave unredressed
the wrongs done by dishonest officers than to subject
those who do their duty to the constant dread of
retaliation.” Jd., at 581.
This case does not involve an assertion of individual
harm of the sort addressed in Gregoire or of personal
malice, nor do plaintiffs seek monetary damages, but
Judge Hand’s concern that subjecting officers to prob-
ing and potentially invasive judicial process would
undermine official functions applies equally in this
case. Based on our decades of experience in govern-
ment, studying government, and teaching and writing
22
about government, amici firmly believe that permit-
ting intrusive judicial inquiries into matters of official
motive would be far more likely to damage effective
government than to promote it.
B. Concerns about Administrative Bias
and Prejudgment Apply in Other Con-
texts and Are Best Addressed through
Other Means.
To be sure, there are legitimate concerns over
prevention of biased or prejudiced decision-making,
which can deprive litigants of rights under the Due
Process clauses of the Fifth and Fourteenth Amend-
ments, as this Court has held in various contexts. See,
e.g., Caperton v. A.T. Massey Coal Co., Inc., 556 U.S.
868 (2009); Gibson v. Berryhill, 411 U.S. 564 (1973);
Ward v. Village of Monroeville, 409 U.S. 57 (1972); Tumey
v. Ohio, 273 U.S. 510 (1927). These cases, however,
differ from the present case in several critical respects.
First, the cases in which due process guarantees
were found to be infringed concern individual deter-
minations with direct, immediate impact on the party
advancing the due process objection.’ Second, the
contexts in which this Court has accepted such claims
almost invariably involve bias from personal financial
gain for the decision-maker. Third, the decisions at
issue are individuated adjudications or licensing deci-
sions that effectively constitute such adjudications.
® Gibson v. Berryhill, 411 U.S. 564 (1973), arguably differs in
being a rule-based determination on licensing. However, the
peculiar context of the rule being reviewed, its focus on excluding
practitioners in a single business entity, and its effect on exclud-
ing from the continued practice of optometry the individuals who
brought the challenge makes that case tantamount to the sort of
individual determination at issue in other cases.
23
Where the decisions challenged have been more in
the nature of broader policy determinations, this
Court has rejected due process claims based on a
decision-maker’s policy inclinations, announcements,
and connections. See, e.g., Withrow v. Larkin, 421 U.S.
35 (1975). Similarly, this Court has rejected chal-
lenges based on bias and self-interest where the
financial gain at issue was institutional rather than
personal and a direct personal gain was not shown.
See, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238 (1980).
To the same effect, lower courts typically have rejected
such challenges to administrative proceedings where
the proceeding is not in the nature of an adjudication
or where the asserted ground of bias or prejudgment
comes from extra-record statements and more tenuous
connections. See, e.g., Association of National Advertisers,
Inc. v. Federal Trade Commission, 627 F.2d 1151 (D.C.
Cir. 1979), cert. denied, 447 U.S. 921 (1980) (prejudg-
ment claim in rulemaking rejected); Action for Children’s
Television v. Federal Communications Commission,
564 F.2d 458 (D.C. Cir. 1977) (claim of improper ex
parte contacts in rulemaking rejected).
Most important, courts in these cases did not engage
in direct inquiries into the mental state or motivations
of decision-makers. Concerns over the propriety of
officials’ participation in policy decisions have been
resolved by reference to publicly available information.
See, e.g., Air Transport Association of America, Inc. v.
National Mediation Board, 663 F.3d 476, 488 (D.C.
Cir. 2011) (denying discovery request).
C. Intrusive Inquiries into Official Motives
Impair Perceived Legitimacy of Judi-
cial Processes and Separation of Powers.
Finally, special caution is required before inquiring
into officials’ motives, as that inquiry invites greater
24
intrusion of political considerations into litigation
respecting government actions. In recent years, litiga-
tion has been used as an extension of political conflicts,
with litigants who are politically-selected among the
parties seeking judicial review of administrative actions
presenting legal questions closely related to or identi-
cal to politically-contested issues. This development,
and problems associated with it, have been noted by
judges, scholars, public officials, and news media. See,
e.g., Trump v. Hawaii, slip op. at 5-10 (Thomas, J.,
dissenting); Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction, 131 Harv. L. Rev.
417, 457—61 (2017); Ronald A. Cass, Nationwide
Injunctions’ Governance Problems: Forum-Shopping,
Politicizing Courts, and Eroding Constitutional Struc-
ture, Geo. Mason Legal Stud. Research Paper No. LS
18-22, Nov. 7, 2018, at 20-32, available at https://www.
usgovernmentspending.com/recent_spending (Nation-
wide Injunctions); Lin, supra, at 634-46; Sarah N.
Lynch, “Attorney General Vows to Fight Nationwide
Injunctions,” Reuters, Sep. 13, 2018, available at
https://www.reuters.com/article/us-usa-justice-courts/
attorney-general-vows-to-fight-nationwide-court-injun
ctions-id USKCN1LT34A; Alan Neuhaus, “State Attorney
Generals Lead the Charge Against President Donald
Trump,” U.S. News & World Rep., Oct. 27, 2017, avail-
able at https://www.usnews.com/news/best-states/arti
cles/2017-10-27/state-attorneys-general-lead-the-char
ge-against-president-donald-trump; Paul Nolette, “State
Attorneys General Have Taken Off as a Partisan Force
in National Politics,” Wash. Post, Oct. 23, 2017,
available at https://)www.washingtonpost.com/news/
monkey-cage/wp/2017/10/23/state-attorneys-general-ha
ve-taken-off-as-a-partisan-force-in-national-politics/?u
tm_term=.e5530ca3bab5b.
25
Lower court inquiries into matters such as officials’
motives for the actions being reviewed exacerbate
problems associated with complaints about politiciza-
tion of judicial process. Questions respecting unstated
motives for official action necessarily require far more
subjective inquiries than does asking whether there is
evidence of arbitrariness or capriciousness or other
grounds specified in the APA. Legal tests that turn on
more subjective judgments at times are appr )priate,
but in general such tests reduce the clarity of decisions
and provide increased scope for considerations apart
from those readily identified with the merits of the
legal dispute. Similar observations underlie calls for
narrower, more certain legal tests and more narrowly
confined sources of decision; these have come from
scholars and jurists of widely divergent views in an
array of disparate contexts. See, e.g., Ronald A. Cass,
The Rule of Law in America 4—20, 28—29 (2001); Albert
Venn Dicey, Introduction to the Study of the Law of the
Constitution 110 (1915 ed.) (1885); Lon L. Fuller, The
Morality of Law 46—94, 209-13 (rev. ed. 1969); Michael
Dorf, Prediction and the Rule of Law, 42 UCLA L. Rev.
651, 689-90 (1995); Antonin Scalia, The Rule of Law
as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1176, 1178—
83 (1989).
Less clarity in the tests applied and a wider set of
materials relevant to decision increases the dispersion
of potential outcomes across decision-makers, reduc-
ing reliability and increasing incentives to seek out
decision-makers who are predicted to be more inclined
toward specific (favored) outcomes. See, e.g., Antonin
Scalia, A Matter of Interpretation: Federal Courts and
the Law 14-41 (Amy Guttman ed., 1997); Cass,
Nationwide Injunctions, supra at 20-27. When the
issues presented for decision or the settings in which
they are presented overlap with political disputes, the
26
incentives for forum-shopping can have especially
pernicious effects. These include changes in the
perceived legitimacy of judicial decisions and their
potential intrusion into responsibilities committed to
other branches of government.
The overlap between concerns about political char-
acterization of decisions and the use of legal tests that
permit inquiry into decision-makers’ motivations is
starkly illustrated by the decision below. The district
court went through the administrative record and
extrinsic evidence adduced in lower court proceedings
to discern whether political considerations played a
part in the Secretary of Commerce’s decision to add a
question to the 2020 decennial census. See SDNY
Decision, at 26-102, 204-07. The decision suggests
that they did, finding that the real reasons for the
Secretary's action were hidden from the court, were
unrelated to his stated rationale, and produced a bias
so strong that he could not rationally consider the
effects of his decision. id. at 245-53. Yet, even a
sincere effort to deduce the motivations of a decision-
maker is an exercise in guesswork. Different reviewers
of the same record easily can reach different
conclusions.
Uneven application of less-constraining legal tests,
the potential for application of such tests to vary across
courts, and the potential for politically-connected
litigants to seek out specific courts to decide legal
questions that have political significance, together
threaten to undermine confidence in our courts. See,
ec. , Bray, supra at 457-61; Cass, Nationwide Injunc-
tions, supra at 20-32; Lin, supra at 634—46; Nolette,
supra. Those concerns provide an additional reason to
restate the understanding that inquiries into decision-
makers’ motives are strongly disfavored, especially if
27
accomplished through trial proceedings designed to
adduce information not in the written record. Inquiry
into motives leads to unnecessary friction with other
branches of government and to questions about the
role of the courts. Those inquiries are not only contrary
to law but at odds with fundamental precepts of
constitutional structure as well.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted,
RONALD A, CASS
Counsel of Record
CASS & ASSOCIATES, PC
10560 Fox Forest Drive
Great Falls, VA 22066-1743
(703) 438-7590
roncass@cassassociates.net
Counsel for Amici Curiae
March 6, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.