Mar 15, 2022
Delia Scoville
Since their inception, administrative agencies have played a critical role in setting the trajectory of national regulatory schemes. Over the last several decades, agencies have become increasingly responsive to executive policy positions. Though executive control of agency action has long been accepted as a desirable system of accountability, the increasingly partisan and politicized nature of executive policymaking has consequences, including a lack of transparency and a departure from the legislative purpose for agency regulation. These consequences are exacerbated by the super deferential standard employed by the courts when reviewing an agency’s nominally science-based decisions. Together, strong executive control and super deferential judicial review allow agencies to disguise their politically motivated decisions in deliberately ambiguous and evasive reasoning—“doublespeak.” The dangers of doublespeak were particularly notable in Environmental Protection Agency actions under the Trump administration, which engaged in starkly deregulatory behavior by abruptly reversing former, more protective Clean Air Act regulations. By moving away from super deferential review and towards a “fidelity model” that transparently interrogates the underlying motivations for agency action, courts can counteract the negative consequences of agency doublespeak.