Administrative Records after Department of Commerce v. New York

Abstract

The Administrative Procedure Act of 1946 (APA) permits judicial review of agency action upon “the whole record” of the agency. What composes that term is not explicated by the text of the statute. Until recently, the Supreme Court had declined to lay down markers on the meaning of “the whole record,” leaving confusion among litigants and interdecisional inconsistency among the lower courts. In the seventy years since the APA’s enactment, courts have sewn a patchwork of jurisprudential principles elucidating what belongs in such a record, one negative effect of which was the continual relitigation of the same issues before separate judges. Our 2018 article, Administrative Records and the Courts, surveyed the law and concluded that the courts were improperly defining the administrative record and erroneously conflating records issues and merits issues. The landscape shifted in June 2019 when the Supreme Court decided Department of Commerce v. New York, which considered whether the U.S. Census Bureau lawfully added a question to the impending 2020 census that asked respondents whether they are U.S. citizens. The Court addressed the composition of “the whole record” in APA litigation for the first time in decades and held that the challengers had made a “strong showing of bad faith or improper behavior” that merited the supplementation of the record. The majority concluded that the trial court had improperly and prematurely ordered supplementation of the record, but held that the error was harmless and justified in hindsight. With the record’s contours so set, the Court then held that the Census Bureau had improperly added the citizenship question to the 2020 census. In partial concurrence and partial dissent, Justice Thomas, joined by Justice Gorsuch and Justice Kavanaugh, cited our scholarship and questioned the provenance of the “strong showing of bad faith or improper behavior” exception to the APA record rule. This essay is another entry in the sparse field of APA administrative record and judicial review scholarship. It further explicates our criticism of the bad faith exception to APA record review and explains how Department of Commerce perpetuated and invigorated this exception, which is inconsistent with the text, purpose, and history of the APA. It closes by hypothesizing the consequences of the Court’s two record rule holdings, primarily the ability of litigants to (improperly) supplement APA administrative records.