Notice & Comment

What Does the Future Hold for Administrative Records after Department of Commerce v. New York?, by Aram A. Gavoor

Building on Chris Walker’s excellent day-of analysis of the Supreme Court’s decision in Department of Commerce v. New York, I write to provide insight on the Court’s treatment of administrative records in that case and to preview an essay that Steven Platt and I authored that analyzes the decision on that score and predicts consequences that will flow from it.

The headlines focused on the case’s political implications—whether the U.S. Census Bureau’s intended addition of a citizenship question to the 2020 census was lawful—but for administrative law, Department of Commerce is remarkable in part for what it said about the composition of the administrative record that a court reviews in Administrative Procedure Act (APA) challenges.

Writing for the majority, Chief Justice Roberts opined that the district court improperly ordered administrative record supplementation, but that such error was harmless because the judge’s order was justified upon later completion of the record, which demonstrated that additional documents had been properly added. Premised on its holding in Citizens to Preserve Overton Park, Inc. v. Volpe (1971) (reviewing courts can in some circumstances cross-examine agency decisionmakers and make use of other extra-record evidence), the Department of Commerce Court concluded that plaintiffs had made a “strong showing of bad faith or improper behavior,” which justified the addition of new materials to the record. The Court did not explicate what in the record, precisely, qualified as a “strong showing of bad faith or improper behavior.” Building on this resolution of the administrative record dispute, the Court affirmed the district court’s judgment that the Department of Commerce had improperly added a citizenship question to the census on grounds of pretext, and thus likely enlarged hard-look review.

In a partial concurrence and partial dissent authored by Justice Thomas and joined by Justices Gorsuch and Kavanaugh, the Justices admonished:

The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. 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, interest group 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).

(emphasis added). As part of their analysis on administrative records, the Justices cited to scholarship that I co-authored with Steven Platt on the topic and our criticism of the provenance of the Overton Park’s “bad faith” exception to the APA’s record rule (from footnote 5):

Insofar as Overton Park authorizes an exception to review on the administrative record, it has been criticized as having “no textual grounding in the APA” and as “created by the Court, without citation or explanation, to facilitate Article III review.” Gavoor & Platt, Administrative Records and the Courts, 67 U. Kan. L. Rev. 1, 44 (2018); see id., at 22 (further arguing that the exception was “neither presented by the facts of the case nor briefed by the parties”). The legitimacy and scope of the exception—which by its terms contemplates only “administrative officials who participated in the decision . . . giv[ing] testimony explaining their action,” Overton Park, 401 U.S., at 420—is an important question that may warrant future consideration. But because the Court’s holding is incorrect regardless of the validity of the Overton Park exception, I will apply it here.

Our 2018 article engaged on two questions that receive scant attention from the academy. First, what should qualify as the record for the purpose of judicial review of agency actions under the APA? Second, when, if ever, should a court consider extra-record evidence in the process of reviewing an agency action? We concluded that generally only record “completion” is lawful. Completion entails ordering the agency to add materials to the record presented to the court if the agency did indeed consider those materials. Conversely, our research led us to conclude that the common judicial practice of record “supplementation” is inappropriate. Supplementation entails the court, in deciding the lawfulness of the agency action, considering materials that the agency decisionmaker never considered, but that the court purportedly should nonetheless consider for various reasons. One form of “supplementation” that the Court utilized in Department of Commerce is when the challenger makes a “strong showing of bad faith or improper behavior.” The Court created this exception in Overton Park, but until Department of Commerce, had never applied it. As the concurring Justices observed, we think that such exception is unsound.

So what does the future hold for administrative records after Department of Commerce?

In our essay, Administrative Records after Department of Commerce v. New York, we delve deeper into our Overton Park criticism as part of a broader analysis of the administrative record holdings of the Court’s decision. We predict that unless the Court signals Department of Commerce is a one-off case, APA record supplementation by traditional discovery tools and will proliferate in a wide variety of cases. Plaintiffs, and especially agenda-driven plaintiffs, have significant incentives to do so. Extra-record issues adversely affect the executive branch’s ability to defend itself in APA litigation, divert resources from agencies’ core missions, distract senior officials, and cause long delays with more bet-the-agency litigation that will render impossible the government’s ability to fix its errors within a single presidential term. Department of Commerce’s broad language, omission in its analysis of what exactly constituted “bad faith or improper behavior,” and treatment of “harmless error” may exacerbate these problems going forward.

Unless abated by the Court, these disruptive phenomena will transcend the Trump Administration into future administrations as sophisticated and sovereign litigants avail themselves of any tool available to thwart the political objectives of the Executive. Because administrative record issues largely arise at the sub-merits stage, and some in the bench and bar may begin to view APA evidence to be more in alignment with traditional discovery, my co-author and I agree with the concurring Justices that this problem will grow. Further, improper application of administrative records law can evade appellate review, as with most discovery issues. That growth, in both the administrative record and merits holding contexts, can lead to the Court soon having a vehicle to moor its administrative records jurisprudence to the APA.


Aram Gavoor is a Visiting Associate Professor/Professorial Lecturer of Law at The George Washington University Law School, where he teaches courses in Administrative Law, Federal Courts, and National Security Law. Gavoor thanks his co-author, Steven Platt, for his valuable thoughts on this post.

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