Arbitrary-and-Capricious Review: The Colonial Roots of Administrative Discrimination by Carrie Rosenbaum

Abstract

Despite the Supreme Court’s watershed decision in Loper Bright Enterprises v. Raimondo, deference to the administrative state will endure in part via arbitrary-and-capricious review. Seemingly benign, arbitrary-and-capricious review has evaded definition, led to controversial and surprising results, and has been characterized as antidemocratic, obscuring judicial bias. It has also done work seemingly meant for other doctrines, like equal protection. However, even if arbitrariness review may be doing work meant for equal protection, it not inherently a doctrine of anti-discrimination. This article will reveal the formative and invisiziblized role of racialized subordination that implicitly colors arbitrariness review by historicizing the doctrine through the lens of its colonial and Gilded Age origins, and plenary power, an overt doctrine of discrimination. This exploration will help set expectations regarding the limits and possibilities of this highly consequential but seemingly benign administrative law doctrine.

KJ