The Regulatory Rule of Law and Reasoned Decision-Making

The Roberts Court should follow its own reasoned decision-making requirements to constrain regulatory demolition.

Richard J. Pierce, Jr., soundly reviews “reasoned decision-making” law, its salutary effects, and questions about its future with the U.S. Supreme Court under Chief Justice John G. Roberts, Jr. The doctrine of reasoned decision-making is central to the regulatory rule of law. Importantly, this body of law still stands while many other key precepts of administrative law have fallen or are going unenforced during the early months of the second Trump Administration.

Reminding the current Administration and the Supreme Court, as well as lower courts, of the firm doctrinal roots of the regulatory rule of law could prove essential in the face of unreasoned regulatory demolition undertaken by the Trump Administration. This essay assumes a perhaps naïve posture, focusing on apparently still-standing elements of reasoned decision-making law that should, if taken more seriously than political partisanship, serve to check executive branch illegality, arbitrariness, and unreasoned policy shifts.

In recent years, the Roberts Court has modified or overruled numerous fundamental aspects of administrative law. The front page news is the Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which overturned judicial deference to reasonable agency interpretations of statutes under Chevron v. Natural Resources Defense Council. In numerous emergency or shadow docket actions, the Court has allowed presidential actions to stand despite their apparent inconsistency with statutory requirements, as well as longstanding legal doctrine and understandings. In addition, the protections independent agencies have long enjoyed from current politics is likely to fall, with recent stay orders presaging the likely overruling in Trump v. Slaughter of 90 years of stable law that allows Congress to limit presidential removal of these agencies’ heads.

Without supportive legislative actions, President Trump has ordered agencies shuttered, ordered widespread agency employee layoffs, and, among other actions, tried to claw back past funding grants already made in accordance with statutes and regulations. In so doing, the Trump Administration has often eliminated regulatory capacity authorized through the constitutionally prescribed process of legislating, destroying agencies and abdicating regulatory roles assigned in still-standing statutes for work funded repeatedly by Congress.

If administrative law still matters—including the centrality of each statute’s particular textual choices about the nation’s law—and if the Supreme Court still takes seriously its own enduring regulatory rule of law precedents, then we should soon start to see a string of losses for the Trump Administration.

As Pierce correctly observes, the Court in Loper Bright may have shifted statutory interpretation deference doctrine, but the Court explicitly referenced and retained the body of “reasoned decision-making” law.

What does this body of law require? The first analytical step is for an agency to ground its action in what each statute chooses. Where an agency is granted discretion under a statute’s “single, best meaning,” as it often is, then reviewing courts must ensure that the agency’s action falls within the “boundaries” of that delegated discretion, reviewed for legality under reasoned decision-making law. Importantly, the presence of agency discretion does not mean that an agency wins, merely that room for multiple choices might exist. But such room for multiple choices does not mean unbounded or untethered choosing. The chosen action’s legality will often depend on facts and what the Loper Bright Court calls “factbound” determinations.

Hence, this body of law asks: Is an agency’s choice justifiable both in light of constraints imposed by statutory language and the statutorily salient facts—facts and other effects claims triggering or underpinning justifications for an agency action?

Under the Court’s foundational and still-standing decisions in Citizens to Preserve Overton Park v. Volpe and Motor Vehicle Manufacturers Association v. State Farm, courts ask whether an agency acted in conformity with the “relevant factors” set forth in the relevant statute. Courts must pay attention to each statute’s substantive criteria and procedural requirements, as well as an agency’s consideration of what has become central to contestation in the underlying regulatory process. Courts must also ask whether an agency adequately noted and responded to public criticism during the notice-and-comment process. Of special importance during times of regulatory and political upheaval is whether an agency fully acknowledged and grappled with its own past actions, policies, rationales, different fact claims and findings, and actions of others in reliance on the agency’s past policy, as the Supreme Court recently reaffirmed an agency must do in FDA v. Wages and White Lion Investments.

There are three key elements of these requirements that constrain illegality and arbitrariness that remain embraced by recent Roberts Court majorities.

First, all agency actions must find statutory justification. Perhaps of greatest importance is the statutory side of reasoned decision-making law. Each statute’s particular choices must guide every executive branch action concerning an agency or body of law and linked regulatory work delegated to that agency. This requirement has run consistently through the Court’s opinions—beginning with the Rehnquist court’s and continuing with the opinions of today’s strong six-justice conservative majority. Reason giving, responsiveness, and grappling with facts and science may often be the focus in reasoned decision-making litigation, but all such reasoning and grappling must be shaped by each statute’s particular choices. So, the analytical first step ends up much like Loper Bright in its focus: What does the statute authorize or require? Did the agency stay within the bounds of that statutorily constrained power?

The Court’s 1998 opinion in Clinton v. City of New York emphasized that Presidents must work within statutory constraints until amended through a new statutory enactment process. There, the Court stated that “there is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” It rejected presidential power to take “unilateral” actions that in effect seeks to repeal or amend “parts of duly enacted statutes.”

The Court’s 2007 opinion in Massachusetts v. EPA used language presaging the structure of Loper Bright: The statutory “use of the word ‘judgment’ is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits.” The Court rejected an agency “laundry list of reasons not to regulate” and stated that the agency had to “ground its reasons for action or inaction in the statute.”

Still more similar language appeared in the Court’s 2014 majority opinion in Utility Air Regulatory Group v. EPA, where Justice Antonin Scalia articulated that “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” The Roberts Court in 2022 again embraced the same point in West Virginia v. EPA, stating that “agencies have only those powers given to them by Congress” and that enabling acts are not an “open book” subject to agency additions.

More recently, in its 2023 opinion in Biden v. Nebraska, the Court majority repeated this refrain about Presidents and agencies as bound by statute. The Court rejected the Biden Administration’s expansive conferral of student loan forgiveness. The Department of Education could not claim “virtually unlimited power to rewrite” the underlying statute, and the executive branch could not seize “the power of the Legislature.” Actions in tension with the congressional “control of the purse”—a power the Court called “among Congress’s most important authorities”—were not subject to less demanding judicial review. The executive branch cannot rewrite a statute “from the ground up.”

These cases add up to a single consistent message: Every regulatory action must find legal justification within the boundaries of governing statutes. In none of these cases involving statutory compliance or disregard did presidential involvement save the action or even seem to strengthen claims of legality, as Jodi L. Short and Jed Handelsman Shugerman recently concluded.

The second key element of the requirements of recent Roberts Court opinions that constrain illegality and arbitrariness is that the agency’s contemporaneous explanation for each action is the focus. Going back to the Court’s foundational decision in SEC v. Chenery Corporation, agencies have one chance to explain their actions. Then, they must live with that action, explaining, justifying, and defending it with that contemporaneous explanation. Neither the executive branch, nor litigants, nor reviewing courts can later cure, supplement, or change that rationale.

So far, that law remains standing, even being the key issue driving recent Roberts Court majorities—although with some dissenters. Agencies cannot offer rationales for actions that are pretext for other, different motivations, as the Court concluded in Department of Commerce v. New York. There, the Court found a “mismatch” between the government’s stated reason for asking about citizenship in its census questionnaire and its actual reason for doing so. Similarly, as the Court concluded in DHS v. Regents of the University of California, when an agency’s rationale for an action reflects a major legal omission or error, then the agency action will be rejected and must be revisited. And when an agency fails to address a salient public comment on a proposed rule, later regulatory explanations in agency and court materials do not cure the oversight. In Ohio v. EPA, actions under the Environmental Protection Agency’s “Good Neighbor” rule, which sought to combat transboundary pollution, were stayed for the indefinite future because of the Court majority’s view that the agency had failed to respond adequately to a single critical, arguably elliptical, comment.

The third key element of still standing administrative law linked to reasoned decision-making law is that policy shifts are often possible but require analytical rigor. Despite surrounding doctrinal shifts, the law governing agency shifts in policy— called “consistency doctrine” or “change-in-position” or “policy change” doctrine—has been embraced, wielded, and arguably even strengthened in recent cases.

Justice Neil Gorsuch in particular has repeatedly expressed concern with unreasoned policy shifts, especially if occurring rapidly. He supported the overruling of Chevron in Loper Bright due to concerns with rapid agency policy shifts, and embraced heightened justification hurdles for agencies taking disruptive actions of large economic or political consequences under the major questions doctrine, as articulated and officially embraced in West Virginia v. EPA. Justice Gorsuch, with repeated strong Court majorities, has required thorough and analytically rigorous work by the executive branch if it is to surmount doctrinal hurdles of consistency doctrine. Under this doctrine, an agency must acknowledge its past policy, the legal and factual underpinnings of the past policy, changes in the world since the earlier action, and actions and shifts that have occurred in reliance on the old policy, and offer “good reasons” for the new policy. Some room for policy shifts will often remain possible, but combined with the hard look demands reflected in Ohio v. EPA—an opinion penned by Justice Gorsuch—hasty or sloppy regulatory demolition should flunk these legal demands.

These three linked elements of reasoned decision-making law create a basic analytical checklist that still stands as a scaffolding for the regulatory rule of law, despite other doctrinal upheavals:

What is the statutory language authorizing an agency’s procedural and substantive choices in a regulatory action? If agency action is rooted in an identified statutorily delegated discretionary conferral of authority, did the agency stay within the boundaries of that power conferral?
Did the agency, in its “contemporaneous explanation” at the time of the action, adequately explain the legal and factual grounds for its action?
Did the agency respond adequately to critical public comments?
When an agency changes the regulatory status quo, did it acknowledge the change, address reliance interests, and justify its actions with good reasons?
When executive-branch officials seek major changes in regulatory capacity and even threaten or shutter agencies, did they identify statutory support for their actions, or did they, in effect, unilaterally rewrite statutes or ignore funding choices under Congress’s power of the purse?

If these fundamental tenets of reasoned decision-making law still stand—and so far, they do, at least in the law as articulated in Supreme Court opinions—then the regulatory rule of law could still stand. These regulatory rule of law fundamentals could, and should, check executive branch regulatory demolition that lacks statutory authorization, is unaccompanied by legal justifications, fails to grapple with contrary past views or implicated facts and effects claims, or is unresponsive to critical opposition arguments.