The Future of the Duty to Engage in Reasoned Decision-Making

The Supreme Court should continue to apply a strong version of the duty to engage in reasoned decision-making

The duty of an agency to engage in reasoned decision-making is a hardy perennial that courts have applied for over a century. The U.S. Supreme Court famously announced a demanding version of the duty in its landmark 1983 opinion in Motor Vehicle Manufacturers Association v. State Farm, holding that an agency action is arbitrary and capricious unless the agency examines relevant data, articulates a rational connection between facts and decisions, and provides a satisfactory explanation.

In State Farm, the Supreme Court stressed that a rule is invalid if the agency relies on improper factors, ignores important aspects of a problem, offers an explanation contrary to the evidence, or presents one so implausible that it cannot be ascribed to expertise.

Justice William Rehnquist, concurring in part and dissenting in part, took a different view. He argued that a change in administration through a presidential election can justify a shift in regulatory policy, so long as the agency remains within the limits established by Congress.

The Supreme Court has also long applied a logical corollary to the duty of reasoned decision-making—the duty to explain a change in direction. State Farm itself embodies both—an agency must acknowledge when it changes course and justify that change with coherent reasoning.

Federal courts of appeals have since developed multiple procedural mechanisms to enforce these duties. An agency’s notice of proposed rulemaking must adequately foreshadow the final rule and disclose the data on which the agency relies, and the final statement of basis and purpose must respond meaningfully to significant critical comments. The Supreme Court’s recent opinions—including its 2024 opinion in Loper Bright Enterprises v. Raimondo and its 2025 opinion in FDA v. Wages & White Lion Investments—reaffirm these doctrines.

There have been two recent developments, however, that threaten to eliminate or weaken the duty to engage in reasoned decision-making and the duty to explain changes in direction in favor of the view urged by Justice Rehnquist’s partial dissent in State Farm. First, the Court’s current conservative majority embraces textualism. It is hard to reconcile the current strong versions of the duty to engage in reasoned decision-making and the duty to explain changes in direction with the text of the Administrative Procedure Act (APA).

Second, President Donald J. Trump’s second Administration has undertaken most major initiatives through direct presidential action rather than through agencies. Future Presidents are likely to follow suit. It is not at all clear that the duty to engage in reasoned decision-making or the duty to explain changes in direction apply to the President.

Another recent change in circumstances has the opposite effect, however. Today’s conditions of extreme political polarity have the potential to create a legal environment in which the only certain and predictable characteristic of the legal system is that many of the most important policies and rules will change dramatically with each new presidential administration. If the courts allow this to happen, the social and economic results will be terrible. The Supreme Court can avoid that result by continuing to apply the current, powerful version of the duty to engage in reasoned decision-making and the duty to explain changes in direction both to agencies and to the President.

The collapse of bipartisan lawmaking has transformed the policymaking process. In the mid-20th century, Presidents could identify problems, meet and negotiate with leaders of both parties in Congress, and produce bipartisan legislation—such as President Richard Nixon’s Clean Air Act, passed with near-unanimous congressional support.

But over the past quarter-century, Congress has lost the capacity to compromise. Gerrymandering and closed primaries have ensured that legislators who seek bipartisanship risk being primaried out of office. Consequently, Presidents no longer expect to achieve major legislative success beyond the first two years of their terms, when their party may still control both chambers.

Unable to rely on legislation, Presidents increasingly pursue unilateral means. Until the second Trump Administration, Presidents typically did so through administrative agencies, relying on broad statutory delegations and judicial deference under Chevron v. Natural Resources Defense Council.

In his second Administration, however, President Trump has taken unprecedented direct action. He has issued hundreds of executive orders based on often-strained interpretations of statutory presidential powers.

This trend accelerates partisan oscillation—each new administration seeks to dismantle its predecessor’s policies completely rather than adjust them incrementally. When Presidents of opposing parties alternately enact and revoke sweeping regulations every four to eight years, society and the economy suffer from instability, unpredictability, and loss of institutional credibility.

I believe that the United States can function under a government dominated by either conservative or liberal values. But I do not believe that the United States can endure a system in which every change in administration results in wholesale policy reversal.

To prevent such flip-flopping, courts must require that both agencies and the President justify major policy changes with reasons and evidence. That is the pragmatic case for preserving the current aggressive version of the duty to engage in reasoned decision-making and the duty to explain changes in direction and to impose those duties on the President.

Yet this pragmatic argument collides with textualism. The APA prescribes a minimal procedural framework for issuing, amending, or rescinding a rule—agencies must provide notice, allow comment, and issue a concise statement of basis and purpose accompanying a final rule. The APA then instructs courts to uphold the rule if it is not “arbitrary and capricious,” but it does not define that phrase or demand the elaborate procedural obligations courts have since imposed.

In a concurring opinion when he was then a member of the U.S. Court of Appeals for the D.C. Circuit, then-Judge Brett Kavanaugh articulated this textualist critique. He observed that the D.C. Circuit’s Portland Cement doctrine, which require agencies to disclose technical data underlying proposed rules, lacks textual support in the APA and conflicts with the Supreme Court’s decision in Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, which forbids courts from imposing procedural requirements beyond those specified in the statute. Judge Kavanaugh concluded that although Portland Cement might make sense as policy, it rests on “a shaky legal foundation.”

Judge Kavanaugh’s reasoning could apply equally to State Farm. The statutory basis for the Supreme Court’s decision in State Farm is the provision of the APA that instructs courts to overturn agency actions that are arbitrary and capricious. Courts have attributed many meanings to the undefined phrase “arbitrary and capricious.” At the time that Congress enacted the APA, the most recent Supreme Court opinion that defined and applied the arbitrary and capricious test upheld an agency rule solely on the ground that the agency might have had a plausible theoretical justification for its action, without any formal findings or evidence. By that measure, the modern State Farm test is far more demanding than the statutory text supports.

A textualist Supreme Court could therefore overrule State Farm and drastically narrow the duty of reasoned decision-making. It would be even easier for the Court to decline to apply any such duty to the President, who the Court has consistently excluded from the APA’s definition of “agency.” No statute imposes any duty to engage in reasoned decision-making on the President.

The conservative majority might also overrule State Farm because of a realistic expectation that its action would produce results that would please most conservatives. Overruling State Farm would provide Republican Presidents with a much easier and faster path to widespread deregulation, while the predominantly Republican-appointed judges of the U.S. Court of Appeals for the Fifth Circuit could be reasonably relied on to stop any future Democratic President from implementing any significant new regulations. The Fifth Circuit issued 14 injunctions that stopped the Biden Administration from implementing most of its major initiatives.

I hope that the Court does not overrule State Farm. I believe that the Court needs to apply a strong version of the duty to engage in reasoned decision-making both to agencies and to the President to avoid a chaotic and unpredictable legal environment that would have terrible economic and social consequences for the nation.