Judicial Review in an Age of Hyper-Polarization and Alternative Facts

Hyper-polarization and tendency to embrace “alternative facts” on just one end of the political spectrum has implications for judicial review of administrative agencies. A principal rationale for deferential judicial review is that agencies are technocratic experts. Courts, as non-experts, defer to agencies in part because they trust the integrity of agencies’ technical analyses and judgment. But in an age of hyper-polarization – and at minimum a partial rejection of the scientific method in favor of alternative facts – deference based on agencies’ technical competence is less justified. Instead, courts cannot as readily assume that agencies’ technical, expert, “factual” analyses and conclusions are well-supported. Deference based on technocratic expertise is particularly questionable when an agency shifts its position after an election by rejecting the previous administration’s policy and adopting a dramatically different one. Such policy swings typically occur around focal points of partisan hyper-polarization – it is with respect to such focal point issues that the assumption of technocratic competence is least tenable. Building on this insight about the effects of hyper-polarization, we argue for a re-assessment of how courts review administrative agency changes in policy. While some precedent suggests that agencies face an especially “hard look” when they deviate from past practices or approaches, the United States Supreme Court’s decision in FCC v. Fox Television Stations, Inc. is generally read as establishing the same level of deferential review when an agency shifts course as when it stays the course or addresses an issue for the very first time. And, as a normative matter, scholars have argued for deferential review regarding agency shifts so as to avoid agency “ossification” and bureaucratic inertia – to give effect to the values of the party that just won power because, in a democracy, elections must matter. Nonetheless, we believe that Fox need not – and should not – be read to preclude courts from adopting the kind of judicial review our age of hyper-polarization justifies. In particular, Fox supports courts holding agencies to a high standard in explaining why the facts that a previous administration relied upon are no longer true or relevant or no longer weigh heavily in favor of conclusions reached by the previous administration. Notably, nothing in Fox prevents courts from either seriously questioning an agency about what new facts support its recent policy change, or from interrogating the basis for those newly claimed facts. A broad but fair reading of Fox also supports courts calling on agencies to meaningfully explain how their shifts will affect reliance interests, broadly understood, and how the agencies sought, if they did, to meaningfully take account of those reliance interests. One of our goals here is to rebut the claim recently made by Trump’s EPA that current case law allows an agency almost unlimited discretion to discard the rules adopted during a previous Presidential Administration.