Regulatory Moratoria

Reason giving is central to U.S. administrative law and practice. Traditionally, courts and scholars alike have located both the constraining and the legitimating force of reasons in the constraining and legitimating force of Reason, or rationality, but several recent developments signal a political turn in understandings of administrative justification. First, in upholding the decision of the Federal Communications Commission (FCC) to penalize broadcasters for televising fleeting expletives in the Fox Television case, the U.S. Supreme Court signaled the diminished importance of reasoned administrative justification and a broadened acceptance of political justifications for changes in agency policy. Second, motivated by a gathering movement to reconceptualize the legitimacy of administrative agencies in terms of their political—and specifically, their presidential—accountability, prominent administrative-law scholars advocate approaches to arbitrary-and-capricious review that would encourage or require agencies to articulate explicitly the political reasons for their actions. This Article takes seriously the challenges to the rationalist reason giving paradigm posed by political reason-giving models, but it categorically rejects their urge to renovate administrative law\u27s fundamental commitment to reasoned justification. Instead, it develops a new theoretical framework that sees reasoned justification as a constraint embodied not in doctrine or politics, but in the way that law and political control structure the organizational characteristics and social interactions of agencies. Drawing on this framework, the Article critiques models of political reason giving for undermining the social and organizational structures that shape and constrain what agencies do and for failing to offer a coherent alternative theory of administrative reason giving. The Article concludes by arguing more broadly that reform projects must consider the institutional dimensions of agency constraint and think more deeply about what kinds of agencies they would create