Recent cases involving controversial actions taken by federal agencies under the Trump Administration have highlighted a preliminary procedural nuance unique to litigation under the Administrative Procedure Act of 1946 (APA): the “administrative record.” The APA provides for liberal judicial review of federal agency actions, but limits that review to the “whole record, or those parts of it cited by a party.” This “record rule” limits judicial review to the “administrative record” before the agency when it made the decision at issue. The APA defines the administrative record for agency action subject to its formal procedural requirements, but leaves open the question of what an administrative record consists of for informal agency action not subject to those procedural requirements but nevertheless subject to judicial review.

Lower courts, without definitive statutory text, legislative history, or Supreme Court precedent for guidance, have developed a divergent and sometimes inconsistent body of case law addressing the proper scope of an administrative record for informal agency action. The traditional approach generally would focus on those materials directly considered by the agency decisionmaker alone while categorically excluding most, if not all, internal documents. But more recently, some lower courts have begun to apply an expansive construction of the record rule, requiring agencies subject to litigation to submit any material considered by agency personnel involved in the decision-making process, including an array of internal materials. Two recent cases, involving the Department of Homeland Security’s attempted revocation of the Deferred Action for Childhood Arrivals (DACA) program and Secretary of Commerce Wilbur Ross’s attempts to add a citizenship question to the 2020 Department of Commerce, illustrate the wider movement towards an expansive construction of the record rule for informal agency action.

In this Note, I argue that the expansive approach to the record rule for informal agency action becoming popular in some lower courts is correct, both in terms of the judicial review provisions of the APA it serves and the principles of administrative law the APA furthers. The broader adoption of an expansive approach to the record rule has implications for any area of law touched by federal agencies. Indeed, as the DACA and 2020 Census litigation demonstrate, the composition of an administrative record can have significant consequences for issues of national importance.



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