Responding to Alternatives

This article is the first to comprehensively analyze administrative agencies’ obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court’s decision in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm, and it has mattered in important cases. Just recently, for example, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the D.C. Circuit in particular. But courts lack a consistent framework for analyzing the obligation, providing agencies with little guidance on what alternatives require analysis as part of their decisionmaking process. And to the extent that the obligation allows courts a backdoor opportunity to flyspeck agencies’ policy analysis, it runs the risk of displacing agencies’ expert judgments for the courts’ own, often informed only by the parties’ briefing.<br><br> This article interrogates the obligation to respond to alternatives and proposes a more stable framework for its implementation. After rooting the obligation in agencies’ general obligation to give reasons for their actions and in the values associated with agency reason-giving, the article turns to two questions. First, to which alternatives must agencies respond? And second, what counts as a response? In answering these questions, the article draws on broader goals associated with administrative law, which include not only promoting the values associated with reason-giving but also respecting the need for agencies to perform their tasks effectively within a relatively stable system of judicial review that recognizes their comparative expertise advantage over the courts. In addition, it seeks a framework that fits with and helps to explain the results in most cases invoking the obligation to respond to alternatives. At the same time, the framework allows us to more clearly identify occasions on which courts have reached incorrect results or been overbroad in their framing of the obligation to respond to alternatives.