The Uncertain Future of Hard Look Review

Scholars debate whether the duty to engage in reasoned decision-making should be reconsidered.

When federal courts review agency actions under the Administrative Procedure Act, they assess not only whether the agency complied with the law but also whether the agency engaged in reasoned decision-making. The U.S. Supreme Court defined this last requirement—also known as “hard look” review—in its 1983 decision in Motor Vehicle Manufacturers Association v. State Farm.

Under State Farm, an agency must examine relevant data, explain its reasoning, and demonstrate a rational link between the facts it found and the policy choices it made. An agency acts arbitrarily and capriciously if it relies on improper considerations, overlooks important aspects of the problem, contradicts the evidence before it, or offers an explanation that strains credulity. The Court also made clear that when an agency reverses an existing policy, it bears the same obligation to justify the change through a reasoned analysis.

According to legal scholar Richard J. Pierce, Jr., of The George Washington University Law School, the future of hard look review is uncertain. The consolidation of a conservative majority on the Roberts Court raises the possibility that the Court may soon reassess or overturn State Farm and the duty to engage in reasoned decision-making. Considering this possibility, Pierce argues that the Supreme Court should instead preserve and apply a strong duty of reasoned decision-making—rooted in State Farm—to both agencies and the President to prevent extreme policy oscillation and legal instability in an era of polarized, unilateral executive governance.

In this series, The Regulatory Review features Pierce’s essay “The Future of the Duty to Engage in Reasoned Decision-Making,” along with three responses to his essay. In the first response, Robert L. Glicksman of The George Washington University Law School argues that courts should preserve reasoned decision-making review but must carefully distinguish between procedural duties and substantive arbitrariness under the APA. In the second response, Eric R. Claeys of the George Mason University Antonin Scalia Law School argues that State Farm’s hard look review should be reconsidered because it often empowers courts to second-guess politically accountable policy choices and undermines democratic responsiveness. In the third response, William W. Buzbee of the Georgetown University Law Center argues that a robust reasoned decision-making doctrine remains a central, still-viable pillar of the regulatory rule of law and should be rigorously enforced.