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Unelected judges have become some of our nation's most powerful policy wonks. This past year, judges invalidated Bush Administration regulations on high-profile issues like global warming and the broadcast of indecent material. In the coming years, judges could just as easily invalidate Obama Administration regulations on issues like stem cell research, oil drilling, air and water quality standards, or fuel emission regulations. The Supreme Court's recent decision in FCC v. Fox Television Stations, Inc. might prevent judges from continuing to use their policy preferences to invalidate agency rules. However, to ensure that judges' policy preferences are not ossifying agency rules, courts need to craft a doctrine for reviewing agency rulemaking that goes beyond setting fact-specific examples of how courts should conduct APA arbitrary and capricious review. This doctrine also needs to give appropriate deference to expert agencies that are charged with setting our nation's policies. It should have a theoretical limitation grounded in the precedents for reviewing legislation, which have been developed over the past century. This Article proposes the rational basis with bite doctrine because it is a heightened standard of review that accounts for the differences between agencies and legislatures. Moreover, rational basis with bite would effectively prevent judges from using their policy preferences to invalidate agency rules, and it fits most closely with Supreme Court precedent on APA arbitrary and capricious review.
DEPOLITICIZING JUDICIAL REVIEW OF AGENCY RULEMAKING Scott A Keller Washington Law Review; Aug 2009; 84,
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