Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking

In a refreshingly candid article, Chief Judge Wald of the D.C. Circuit noted in 1986: The flow of membership in the D.C. Circuit . . . is more like what one would expect in Congress with elections every few years, or in the Executive, shifting its key policymakers with each administration. 1 Eleven of the twelve D.C. Circuit judges were appointed by President Reagan or President Carter within the last nine years. Most served previously in policymaking positions in either the legislative or executive branches of government. Based on their record of decisionmaking with respect to judicial review of agency actions, the new members of the D.C. Circuit seem to be experiencing a difficult, and as yet incomplete, transition from their prior active role in the partisan political process. Two problems have emerged in the D.C. Circuit\u27s review of agency decisions. First, the democratic and republican judges on the D.C. Circuit see agency policy decisions through dramatically different prisms. Deeply ingrained differences in political perspective become particularly apparent when the D.C. Circuit reviews agency policy decisions with significant ideological implications: the fate of a major agency policy decision reviewed by the D.C. Circuit will vary with the composition of the panel that reviews the agency action. 2 Second, policymaking through agency rulemaking has declined significantly at some agencies during the past decade. 3 While other factors have contributed to this trend, 4 the approach taken by appellate courts when they review agency rules dominates the list ..