The Administrative Record Is the Whole Case
Challenges to federal rules are usually decided on whether the agency explained itself, not on whether the policy was wise.
Coverage of a court striking down a regulation tends to describe it as a ruling against the policy. Usually it is not. It is a ruling that the agency failed to explain its reasoning adequately at the time it acted.
This is the core of arbitrary and capricious review. A court asks whether the agency considered the relevant factors, addressed the significant comments it received, and articulated a rational connection between the facts it found and the choice it made.
Agencies lose these cases most often on the third point, and specifically on the failure to grapple with an alternative that a commenter proposed. The remedy is to send it back, whereupon the agency frequently adopts the same policy with a better explanation, and wins.
This makes the comment process far more consequential than its reputation suggests. A well constructed comment does not persuade an agency. It creates an obligation to respond, and it builds the record on which the eventual case will be decided.
Ruth Okonkwo writes for The 13th Bell on law. This piece was edited and fact checked before publication.
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