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Thursday, July 04, 2019

Must agencies be sincere?

I think that the answer must be “yes.” It is reversible error for an agency to justify a decision with a reason that the agency does not really believe. This rule against pretextual agency reasons is implied by 1) the rule against upholding agencies’ decisions based on post hoc rationalizations, 2) the analogy between agencies and juries in Chenery I, and 3) the role of political accountability and expertise in justifying agency authority.

But Justice Thomas’ dissent in Dep’t of Commerce v. New York gives me a chance to ask (both of) my readers whether or not I am correct. Is Justice Thomas really rejecting my intuition about agencies and pretext? Or is he simply making a much less controversial point about administrative procedure and evidence that the majority does not really question? Your thoughts are especially appreciated, as I am trying to throw together a memo on Dep’t of Commerce for my Leg-Reg students for next spring.

In Dep’t of Commerce, Justice Thomas decried the majority for “an unprecedented departure from our deferential review of discretionary agency decisions” that would, “if taken seriously as a rule of decision, … transform administrative law.” The alleged novelty? “For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” On Justice Thomas’ view, so long as agencies give “a reasoned explanation for his decision” in the administrative process that has sufficient support in the administrative record, the courts ought to uphold the agency, regardless of the agency’s sincerity. Nothing in Arbitrary and Capricious review under section 706(2)(A), according to Justice Thomas, “instructs the court to inquire into pretext.”

I cannot see how these statements, taken literally, could possibly be correct. My intuition is that agency officials’ findings must be sincere in order to sustain their decisions, meaning that those officials must really, actually believe the statutorily appropriate reasons that they cite for their decisions.

Here are three reasons — maybe just my own post hoc rationalizations — for this intuition.

First, consider Chenery I’s rule against courts’ upholding agency decisions on the basis of reasons that were not articulated in the administrative record. Justice Thomas quotes the relevant language from Chenery I: “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Requiring agencies to articulate reasons in the administrative process, however, makes sense only if the agency really, actually believes those reasons. Otherwise, post hoc rationalization in a brief written up by DOJ lawyers ought to serve as well as the agency’s own “pre hoc rationalizations” in internal agency documents. The problem, in either case, after all, is rationalization — i.e., insincere reasons that are not truly motivations causing a decision.

Second, consider Chenery I’s analogy between agencies and juries. “Where the correctness of the lower court's decision depends upon a determination of fact which only a jury could make but which has not been made,” Frankfurter observed, “the appellate court cannot take the place of the jury.” Likewise, “[i]f an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.” This analogy suggests the insufficiency of pretextual reasons as justifications for agencies’ decisions, because juries cannot support verdicts with pretextual reasons, even if those verdicts are supported by substantial evidence in the trial record. Imagine, for instance, that a jury were to deliver a verdict against a defendant because they learned (say, by way of cell phone Google searches) that the defendant was an unpleasant, disagreeable person. Assuming that unpleasantness and disagreeability were legally irrelevant to the question being tried, the jury’s basing their verdict on such improper considerations would be reversible error, even if there were ample grounds in the trial record allowing the jury to rule against the defendant for other, legally relevant reasons.

Third, consider the justification for agency power in either or both expertise or political accountability. Neither expertise nor political accountability can be advanced by insincere reasons. An expert that offers an opinion that the expert does not really believe cannot confer any authority on that opinion by virtue of his or her endorsement of it. Consider a homely analogy: Suppose that some doctor tells you that you do not need to lose weight in order to avoid a heart attack, citing some study suggesting that people with your body-mass index are not at higher risk of coronary problems. If that doctor then later informed you that she did not really believe the study, then the value of the doctor’s endorsement would evaporate. Of course, the doctor’s insincerity would not undermine the value of the study itself, but you could read the study yourself without paying the doctor’s fee. To the extent that the doctor’s opinion was supposed to confer additional weight on the study, that opinion becomes weightless the moment that doctor herself states that she does not actually believe it. The same goes for political accountability. If the point of reason-giving is to give voters the opportunity to evaluate the real reasons for an agency’s decision, then pretextual reasons undermine such political accountability, because voters cannot see the real reasons hidden behind the pretexts.

The case against upholding agency actions based on pretextual reasons, in short, seems to me overwhelming. I am inclined, therefore, to give a charitable reading to Justice Thomas’ dissent. He cannot really be arguing that pretextual reasons suffice to justify an agency action. He is instead arguing that courts must adopt a super-strong presumption against inferring that agencies’ stated reasons are pretextual.

It is hard to disagree with this basic evidentiary assertion — so difficult, in fact, that I do not think that the majority disputes it at all. Chief Justice Roberts simply states that there must be some limit to even the strongest presumption of sincerity. The analogy to juries, again, is helpful. Ordinarily, lawyers cannot challenge a jury’s verdict by demanding discovery on the jury’s internal deliberative processes, because there is a super-strong presumption that the jury bases its verdict on the judge’s instructions on the law and the trial record. If, however, jurors’ misconduct (say, decision-making based on legally irrelevant facts discovered through Google searches) comes to light through, say, post-trial interviews of individual jurors, then that misconduct can be the basis for further inquiry. If further inquiry reveals that, yes indeed, the jurors all relied on a Google search of irrelevant matter to reach their verdict, then the court can order a new trial based on such misconduct.

Likewise, courts do not ordinarily allow extra-record discovery into an agency official’s thought processes when reviewing agency action. But if the record itself indicates that the stated reasons were not the agency’s real reasons, then the court cannot shut its eyes to record evidence of pretextual reasoning that is staring the court in the face.

The majority opinion, so far as I can tell, accepts the super-strong presumption that Justice Thomas’ (charitably reconstructed) dissent demands. So I am at a loss as to how the majority opinion “transforms administrative law” as Justice Thomas alleges. But I am counting on you, gentle reader, to set me straight by explaining to me (and my students) what I am missing.

Posted by Rick Hills on July 4, 2019 at 03:49 PM | Permalink


I would think that legal arguments, as arguments, in addition to committing any number of formal or informal logical fallacies, can be weak, incoherent, ambiguous, vague, irrelevant, strongly indeterminate, not on point, expedient, more or less ad hoc (or ‘contrived,’ as Justice Roberts said), arbitrary, capricious, false, and so forth (e.g., unconstitutional), but I think it would be prudent to avoid characterizing them in terms of sincerity or the lack thereof. Sincerity speaks to questions of motive, character, or virtue, not the relative merits, plausibility or soundness of legal arguments. Officials can of course act in “bad faith” or be disingenuous in gathering the requisite materials in support of legal arguments. And agency action (i.e., that of an official or officials acting in concert) that appears “arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law” is of course subject to judicial review, and so in this case the majority stated “Our scope of review is ‘narrow:’ we determine only whether the Secretary examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for his decision, ‘including a rational connection between the facts found and the choice made.’ We … must confine ourselves to ensuring that he remained ‘within the bounds of reasoned decision-making.’” That judicial determination has nothing whatsoever to do with sincerity.

Sincerity is a property, attribute, or characteristic of individuals as individual persons, not of institutions or organizations or collective entities, like agencies (but can be a virtue of officials speaking on behalf of such agencies). Ethically construed (in the West, as far back as Aristotle’s Nicomachean Ethics), it is classed as a virtue, “the virtue of one who communicates and acts in accordance with their feelings, beliefs, thoughts, and desires,” and the determination as to whether someone is sincere or not (in word and/or deed) is ideally based on more or less intimate knowledge of the person in question who, in turn, possesses an idiosyncratic and causal mix of thoughts, beliefs, desires and emotions as these relate to a particular situation, history, what have you; although of course we may make intuitive assessments of sincerity based on need, circumstances and so forth that are far from ideal. Judgments of sincerity get far too close to full-fledged ascertainment of motive(s), and outside the criminal law, it’s perhaps best to avoid such attempts.

While some philosophers and psychologists have expressed skepticism with regard to this virtue (at times tied to somewhat vague conceptions of ‘authenticity’), I think it is fair to conclude that Harry Frankfurt was wrong to argue that categorically speaking, “sincerity itself is bullshit,” even if most of us are often, in fact, rather adept at cultivating sincerity as merely a pose or posture that is, as something fake or false (one reason we have developed heuristic ‘tests’ for sincerity). In other words, human animals have proven quite capable of “faking it,” in the apt words of the title to a brilliant book by William Ian Miller. Indeed, Miller provides us with a nice analytical treatment and phenomenological description of sincerity with regard to apologies in his work, noting, for example, that “[o]ur sincerest apologies come for the harms that we did not mean to inflict”! “Maimonides,” writes Miller,

“defines a perfect repentance to require the monitoring of one’s future behavior to see whether one truly means the I’m sorry now. The test of sincerity is that it will alter future behavior. ‘If a man had sinful intercourse with a woman, and after a time was alone with her, his passion for her persisting, his physical powers unabated while he continued to live in the same district where he had sinned and yet he refrains and does not transgress, he is a sincere penitent.”

In some instances, the playing or acting, if properly done, is thought to be sincere in itself (this has to do with what Miller terms the ‘paradox’ of sincerity), as with, it seems, the notion of li in Confucius’ Analects: “To play being a polite person is to be a polite person. The mask is all that is asked for. There is truth there. Sincerity supposes, in contrast, masklessness…. One can play a role sincerely. I sincerely act out my role as a teacher. Playing the role of the sincere person sincerely, however, rightly raises suspicions.”

Rather than seeking to proffer an elusive, unrealistic and inappropriate norm or standard of sincerity, we should content ourselves with existing standards ensconced in Chief Justice Roberts remarks regarding the “contrived” enforcement rationale associated with the Voting Rights Act, “the disconnect between the decision made and the explanation given,” and the failure to meet “the reasoned explanation requirement of administrative law.” These are in the spirit of if not rather similar to a legal “argument” characterized, in Justice Breyer’s words, as “arbitrary, capricious, and an abuse of discretion.” In brief, as Justice Roberts said, a “distraction” was proffered in lieu of a reasoned explanation. That the reasons might be described as “insincere” in a manner of speaking, is true enough, but I think it’s best upholding existing models and standards of “reasoned explanation,” models and standards one finds in the law, in argumentation theory and studies, and of course philosophy. Sincerity as such adds nothing to these norms, although it does serve to remind us of the frequent causal links between individual character, obdurate ideology, and a tenuously democratic and capitalist legal order.

Posted by: Patrick S. O'Donnell | Jul 7, 2019 9:57:20 AM

On the jury analogy, my vague understanding is that while juror reliance on extraneous evidence is reversible error, you absolutely *cannot* reverse a jury verdict because of evidence that the jury convicted someone because they didn't like him (except for reasons of racial bias, after Pena-Rodriguez) so long as their dislike isn't based on extraneous evidence, and that in fact you cannot even introduce such evidence of juror dislike in a court. That so long as a reasonable jury could find guilt on the basis of the evidence, claims that the jury didn't really believe the defendant was guilty and pretextually found he was for some irrational reason (again, with the exception of race) are just noncognizable. So I'm not sure Frankfurter's analogy to juries helps your argument.

On your arguments from expertise and accountability, eh. Suppose the EPA wants to do something because it will make some group of constituents happy, not because it is particularly interested in achieving the benefits it predicts its rule will yield. Nevertheless, to adopt the rule, it must make some expert prediction that its rule will yield Benefit X. While political appointees may well have knocked on career scientists' doors at the agency until it found some who would predict some benefit or another, that does not diminish the expertise of their prediction; it just means that prediction wasn't what motivated the agency to act. To erode the expertise rationale, you need evidence that the prediction was contrived, not merely evidence that the prediction was not a motivating factor. Of course, the latter might make you suspicious about the former. But, for example, the fact, if it were a fact, that Commerce isn't interested in VRA enforcement tells us nothing about Commerce's sincerity in predicting that a citizenship question would do better at measuring citizenship than a citizenship model. In fact, it seems to me that that prediction is likely sincere, given that Commerce clearly is interested in obtaining citizenship data for some reason or another.

As to accountability, it seems incredibly fanciful to me say that accountability runs in any significant measure from reason-giving. Voters hold agencies accountable, if at all, for what they do, not why they say they do it. For example, the Mexico City policy is an issue that motivates some voters in presidential elections. It matters not a whit to those voters that the stated reasons the Reagan administration gave in the rule upheld in Rust v. Sullivan sounded, if you actually read the rule, in statutory interpretation, not in policy. People (including me) have argued that it would be nice if agencies gave policy reasons for their interpretations of ambiguous statutes instead of passing the buck to Congress so that they could be held accountable, and it would be nice if they did so so that courts could review those reasons for arbitrariness. But as far as accountability goes, voters don't have the faintest idea that the Mexico City policy and its rescissions and reinstatements have been grounded in textual exegesis rather than pro-life/pro-choice sentiment, and of course, their understanding of what's going on is far more accurate than an understanding shaped by a credulous reading of the relevant documents that virtually no voter undertakes, either literally or even by way of reporting on agency reasoning.

As far as what Thomas is saying, I think he plainly *does* mean to question that pretext is a ground to set aside an otherwise rational agency decision, but that in any event he disagrees with the majority on what it takes for pretext to be shown.

Posted by: Asher | Jul 5, 2019 6:14:51 PM

I agree Rick but only on this point: "expertise in justifying agency authority". To me that the only reason why an agency must be sincere. I don't find any of the other reasons persuasive.

As for Thomas vs the majority I do not see a disagreement on substance but a disagreement on judgment. Thomas sees the presumption of regularity as a more decisive factor in the analysis than the majority does.

Posted by: James | Jul 5, 2019 11:01:38 AM

Just corrections to my comment:

Should be " shall get lost " of course , instead of:" shall gel lost ".


" in their calculations " over:" in its calculation".


Posted by: El roam | Jul 4, 2019 6:04:36 PM

Important post indeed. Of course sincerity is an obligation of one agency ( although what is sincerity in legal terms, is bit more complicated ). But, the main reason for it, in philosophical terms, is rather based on functioning and transparency and finally, public trust:

Justice Thomas indeed, insists on that terminology of " presumption of regularity" which is fundamental and basic in administrative law. That presumption, grants priority for the agency. Means, That unless otherwise proven, its actions are presumed as correct and legal. Without it, every state or administration would be doomed to complete chaos and mess indeed. For, every bill issued, every act, every arrest, every decision or order, would factually and legally be challenged from scratch, sowing chaos, endless chaos. Yet:

The agency, should earn it, and honestly so. It does grant it priority, but, such priority is based on complete blind trust ( almost ). So, once agencies would abuse it, take advantage of it, it would sow in fact, the same level of chaos and mistrust, that violation of it, would cause ( in functioning terms ). And that's where Justice Thomas is wrong to claim that:

It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interestgroup pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA).

End of quotation:

For, it would be disastrous, if such confidence and basic trust, shall gel lost. In its turn, would cause greater chaos. Finally, it would force agencies, to exercise more prudence in its calculation and its conduct.


Posted by: El roam | Jul 4, 2019 6:00:13 PM

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