Politics, Rule-Making, and Judicial Review: A Response to Professor Watts

8 Pages Posted: 12 Jul 2013 Last revised: 26 Jul 2013

Date Written: Spring 2010

Abstract

In an article recently published by The Yale Law Journal titled Proposing a Place for Politics in Arbitrary and Capricious Review, Professor Kathryn A. Watts argues for a more robust role for politics in agencies' informal rule-making procedures under the Administrative Procedure Act (APA), as well as in arbitrary and capricious judicial review of those rules. However, her proposal ignores the primary function the APA envisions for the views of regulated entities in notice-and-comment rule-making. She also minimizes the ways in which politics sets regulatory policy before an agency commences the process of adopting, rescinding, or defending a rule. In so doing, she overvalues and undervalues the effect of politics on the agency rule-making process at the same time. In Part I of this Recent Development, I discuss why the APA intentionally insulated agency rule-making from the political branches, show that this insulation predated “hard look” review, and demonstrate why, from the perspective of regulated entities, this needs to be so. In Part II, I consider how politics sets the regulatory agenda for the Federal Communications Commission (FCC), the agency I am most familiar with as a practitioner. In Part III, I examine the Supreme Court's decision last Term in FCC v. Fox Television Stations, Inc. and find the case is less of an invitation for agencies and courts to rely on political influence than Professor Watts believes.

Keywords: administrative law, Federal Communications Commission

Suggested Citation

Armijo, Enrique, Politics, Rule-Making, and Judicial Review: A Response to Professor Watts (Spring 2010). Administrative Law Review, Vol. 62, No. 573, 2010, Elon University Law Legal Studies Research Paper No. 2013-10, Available at SSRN: https://ssrn.com/abstract=2292750

Enrique Armijo (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States
3362799327 (Phone)

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