The Limits of Legislative Control over the "Hard-Look"

This essay was prepared for a symposium where the price of admission was to propose an amendment to the Administrative Procedure Act. In partial compliance, this essay explored the constitutional implications that might flow from legislative elimination of the courts' controversial "hard look" gloss on the APA's arbitrary-and-capricious standard of review. The idea that the hard-look might have a constitutional dimension is not new. Not long after State Farm was handed down, Professors Shapiro and Levy contended that the hard-look is best understood as a manifestation of a separation-of-powers principle that requires courts to review executive action to preserve the rule-of-law values enshrined in the Constitution. This essay points out two other potential connections between the hard-look and constitutional doctrine. First, even if the hard-look is not itself a constitutional doctrine, its elimination could affect how courts interpret other means of judicial control which are rooted in the Constitution - e.g., might killing the hard-look even manage to breathe a little life into the Nondelegation Doctrine? Second, it may be the case that separation of powers demands that courts decide for themselves how to assess the rationality of agency action and that congressional elimination of the hard-look would violate this principle.