*This is the fifth post in a symposium on William Araiza’s Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. All posts from this symposium can be found here.

I am grateful for the opportunity to share some thoughts on Bill Araiza’s wonderful new book, Rebuilding Expertise. The book makes many interesting and valuable contributions, but my comments focus on Professor Araiza’s discussion of how judicial review can be a tool for protecting and reinvigorating the role of expertise in agency decision making. 

As part of the book’s holistic approach to highlighting expertise in rulemaking, Professor Araiza advocates for “modulating judicial review based on the degree to which the agency’s decisional process involved experts and allowed the creation and dissemination of expert information.” Id. at 148. He goes on to explain that this approach is consistent with courts’ traditional focus on agency reason-giving, but that it “modulates review of that reason-giving by explicitly examining the process by which the agency generates its reasons.” Id. at 149 (emphasis in original). The ultimate purpose (paraphrased) is to use judicial review to promote reliance on agency expertise in rulemaking by evaluating agency reason-giving in terms of the agency’s utilization or incorporation of that expertise.

This form of modulated review is an intuitively appealing and generally sensible approach. I focus on the book’s treatment of judicial review here not because I think it is flawed, but rather because I think it raises—as quality scholarship often does—interesting questions about agency expertise worth exploring further. For instance, Professor Araiza incorporates recent scholarship on the nature of agency expertise to define “regulatory expertise”—the ability to perform rulemaking, which includes “reconciling and accounting for conflicting evidence and arguments, disciplinary perspectives, political demands, and legal commands.” Id. at 9. Modulated judicial review is thus designed to promote agencies’ use of their regulatory expertise, which is turn is distinguished from purely “politically based decisions” issued most frequently by agency heads accountable to the president.

Like modulated judicial review, this distinction between decisions reliant on regulatory expertise and those based on purely political considerations makes intuitive sense. It also raises questions about the boundaries between the two that have implications for the scope of agency expertise and its role in judicial review. The book’s account of regulatory expertise reflects the fact that agency officials have experience and knowledge of the rulemaking process that entitles them to institutional respect beyond that derived from substantive, technical knowledge of the subject matter being regulated. But when does that expertise run out, such that policymaking turns from an exercise of official skill and experience to one of “purely political” decision making? Put another way, can regulatory expertise be understood broadly enough to include specialized knowledge of the political environment and consequences of a rule, in addition to the relevant procedural and substantive inputs? If so, is there a reason for courts to defer to agency expertise on those “political” aspects of its policy making? 

For example, the book uses the Supreme Court’s decision in the landmark State Farm case to illustrate various aspects of modulated judicial review. Imagine if the agency’s decision to forego airbag requirements in new cars was not based on any technical data regarding safety or efficacy, but instead on the agency’s experience dealing with industry and consumer preferences, leading to a judgment that (even misguided) public fear about malfunctioning airbags will cause significant unrest among drivers and the members of the industry. Does the agency’s resultant decision not to regulate airbags merit judicial deference based on the agency’s “expert” view that it will cause an unacceptable amount of public unrest? An agency head will undoubtedly have more familiarity with the likely public response to agency action than the judiciary, so the question really comes down to whether the social ramifications of an agency decision are important enough to form the basis of an agency decision. If so, then courts should, at least under one understanding of Professor Araiza’s formulation, structure their review of the agency’s decision to promote agency reliance on such expertise, ostensibly by deferring to that expert judgment. 

So far so good, but this raises the question of limits. If agencies are (at least relative) experts in policy judgments and political consequences, does that definition of expertise threaten to subsume all aspects of agency decision making, such that courts will owe deference to every aspect of the administrative process? On one hand, perhaps. Defining agency expertise too broadly would shift the balance of power away from courts and leave agency action checked mainly by the president, who may have less incentive to constrain agencies within her own administration. 

On the other hand, we can attribute expertise in policy judgments and political consequences to the agency without identifying every decision an agency makes as an exercise in expertise. A purely partisan decision, for instance, is not a product of agency experience or expertise in the policy arena. It is instead an attempt to curry favor with prospective voters. The agency’s repeal of the airbag portion of the passive restraint rule in State Farm would not be a product of agency expertise if, for instance, it was adopted because it would appeal to Republican voters in advance of midterm elections. While the agency head may have a more acute sense of the partisan ramifications of an agency decision based on her position, expertise in partisan politics is not part of an agency’s mission. This unremarkable proposition can help explain how a broader—but not unlimited—definition of expertise may offer a vehicle for challenging some of the Supreme Court’s recent attacks on agency power. 

In Seila Law v. CFPB and West Virginia v EPA, the Court limited independent agencies and agency statutory authority, respectively. In both cases, the Court identified constitutional concerns about agency overreach as the basis for its decision and then assumed power to remedy the perceived problems itself, severing removal protections from a statute establishing an individual head of an independent agency and intentionally constricting the statutory text to avoid significant agency action that was not expressly authorized. In a world featuring modulated judicial review, agency expertise in political (as opposed to partisan) affairs may counsel against both decisions. By virtue of their relative political insulation from elected officials, independent agencies are less vulnerable to partisan influences than executive agencies. This partisan protection creates greater incentive for courts to facilitate use of agency political expertise by honoring Congress’s decision to empower the agency to employ that expertise, regardless of how many people lead the agency. Similarly, deferring to agency political expertise creates greater confidence in the agency’s ability to understand the impact and public reaction to its own exercises of its statutory authority. Rather than having the courts determine for themselves—under the major questions doctrine—if an agency action is too socially, economically, or politically consequential to have been endorsed by Congress, modulated judicial review may defer to the agency’s expertise on the matter, which is not only superior to that of the courts, but also responsive to changing political dynamics, as observed by the agency and Congress.

There is much to appreciate about Professor Araiza’s new book and, for present purposes, his suggestion of modulated judicial review. I am grateful to have had the chance to share some preliminary reactions and thoughts on the virtues of his approach and its potential applications for pressing issues in administrative law.

Louis J. Virelli III is a Professor of Law at the Stetson University College of Law.