ADMINISTRATIVE RECORDS AFTER DEPARTMENT OF COMMERCE V. NEW YORK
成果类型：
Article
署名作者：
Gavoor, Aram A.; Platt, Steven A.
署名单位：
George Washington University; University of Minnesota System; University of Minnesota Twin Cities
刊物名称：
ADMINISTRATIVE LAW REVIEW
ISSN/ISSBN：
0001-8368
发表日期：
2020
页码：
87-101
关键词：
摘要：
The Administrative Procedure Act of 1946 (APA) permits judicial review of agency action upon the whole record of the agency. What composes that term is not explicated by the text of the statute. The Supreme Court recently addressed the composition of the whole record in APA litigation for the first time in decades in Department of Commerce v. New York. In that case, which considered whether the US. Census Bureau lawfully added a question regarding U.S. citizenship to the impending 2020 U.S. Census, the Court held that the challengers had made a strong showing of bad faith or improper behavior that merited record supplementation and concluded that although the initial supplementation order was premature, the error was harmless and justified in hindsight. Building on our 2018 article, Administrative Records and the Courts-cited in Department of Commerce by Justice Thomas-this piece further explicates our criticism of the bad faith exception to APA record review and explains how the Department of Commerce case perpetuated and invigorated this exception, which is inconsistent with the text, purpose, and history of the APA. It closes by hypothesizing the consequences of the Court's two record rule holdings, primarily the ability of litigants to (improperly) supplement APA records.