Abstention — a federal court’s decision to avoid interfering with an ongoing state proceeding — offers a snapshot into the foundations of our constitutional arrangement. In addition to notions of equity and comity, abstention conjures issues of federalism, the separation of powers, and democratic legitimacy. When abstention intersects with state administrative law, these issues take on new force and, in some instances, new meaning. Unlike state courts, administrative agencies occupy a tenuous position in a tripartite democracy and are tasked with making often difficult and controversial policy decisions. A federal court’s decision to interfere with that policymaking process has consequences for state government far beyond the interruption of a purely judicial proceeding. Yet despite the different stakes raised by administrative abstention, the Supreme Court and the academic literature have largely overlooked the unique interplay between abstention and administrative law. This Article recasts administrative abstention as a distinct species of abstention and evaluates it in terms of the principles of democratic legitimacy and good government that provide the foundation for the administrative state. Only by thinking of abstention in distinctly administrative terms can we fashion a relationship between federal courts and state agencies that protects the legitimacy of state administrative governance while maintaining a robust forum for the vindication of federal rights.

Arbitrary and capricious — or “hard look” — review is a critical and legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It employs principles of judicial deference to balance the authority of courts and agencies in pursuit of rational, transparent administrative policymaking. It is thus no surprise that arbitrary and capricious review is a favorite topic of both courts and commentators. Despite this active focus on hard look review, however, a crucial point has been overlooked. Existing scholarship overwhelmingly portrays arbitrary and capricious review as one-dimensional — as applying the same standard in the same way across all manner of agency conduct. This Article rejects this one-dimensional approach and offers a new perspective that represents a potentially transformative view of arbitrary and capricious review. It reconceptualizes hard look review as a multi-dimensional expression of judicial deference and argues that arbitrariness review is both more effective and more easily justified when it is “deconstructed” — when it first divides administrative policymaking into its constituent parts, such as record building, reason giving, input scope and quality, and rationality. This shift exposes arbitrary and capricious review for what I contend it should be: a collection of more particularized inquiries into specific components of agency decision making. The deconstruction model is useful for several reasons. It provides a new and coherent theoretical framework for arbitrary and capricious review. This framework may then be used to evaluate each of the deconstructed components of agency conduct against the underlying principles of judicial deference and goals of hard look review to develop a new, dynamic view of arbitrariness review that tailors judicial deference to discreet aspects of agency decision making. Deconstruction also reveals institutional and systemic benefits to viewing hard look review as a multidimensional exercise. These in turn increase our understanding of how hard look review should be utilized in different contexts and of when courts should defer to the political branches more generally.

Science and politics often interact successfully in administrative law. Potential problems arise, however, when agencies make “counter-scientific” policy decisions — decisions that overlook otherwise uncontroverted scientific evidence in favor of political rationales. This short essay draws new attention to these counter-scientific policy determinations by asking if and under what circumstances they may be considered illegitimate in a constitutional democracy. More specifically, it asks how counter-scientific decisions impact three of the animating principles of administrative legitimacy — agency expertise, accountability and transparency, and efficiency — and identifies some additional variables that are useful to that analysis. Part II offers recent examples of three different forms of counter-scientific policy decisions. Part III outlines the three principles of legitimacy to be applied to those decisions. Part IV then evaluates counter-scientific policy decisions in light of each of those three principles, arguing that variables such as the scope of a particular agency’s expertise, the nature of that agency and its role in government, and the agency’s own claims as to how it is exercising its policymaking authority are critical to understanding the democratic viability of counter-scientific policy decisions. This insight is not only valuable in its own right, but also as a useful starting point in a more rigorous evaluation of counter-scientific agency decisions that could have powerful implications for policymaking as well as for administrative legitimacy in general.