February 2009 Vol. 107 No. 4 THE REVIEW

Irrelevant Oversight: “Presidential Administration” from the Standpoint of Arbitrary and Capricious Review

Daniel P. Rathbun

The president is now regularly and heavily involved in the decision-making processes of administrative agencies. What began in the mid-twentieth century as macro-level oversight has evolved, since the Reagan Administration, into controlling case-level influence. Scholars have hotly debated the legality of this shift and have compellingly demonstrated the need to ensure that agencies remain accountable and that their decisions remain nonarbitrary in the face of presidential involvement. However, as this Note demonstrates, the existing scholarship has not provided an adequate solution to these twin problems.

This Note provides a novel and effective solution to the accountability and arbitrariness problems of presidential involvement by re-examining the doctrine of arbitrary and capricious review. Contrary to contemporary practice, this Note argues that while arbitrary and capricious review is never directly applicable to the president’s actions, it is always applicable to agency decisions that the president has influenced. It introduces a bifurcated framework for applying arbitrary and capricious review based on an initial determination of whether Congress has delegated directive authority to the president or the agency. It then demonstrates that arbitrary and capricious review is a better solution to the accountability and arbitrariness problems of presidential involvement than other suggestions in the existing literature.

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