Standard of review (administrative state) (2024)

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Standard of review, in the context of administrative law, refers to the level of deference that a federal court affords to a lower court ruling or a determination from an administrative agency when reviewing a case on appeal. Courts reviewing an administrative action will consider whether the agency’s action was arbitrary or capricious, an abuse of discretion, or contrary to law. In applying a standard a review, the reviewing court may either uphold, alter, or overturn the action under review.^[1][2][3][4]

For more information about deference doctrines in administrative law, click here.

Background

Federal appellate courts apply standards of review when examining lower court rulings or determinations from a federal agencies. There are three general standards of review: questions of law, questions of fact, and matters of procedure or discretion. There are varying sub-levels of review within each standard of review.^[1][2]

The following list provides a selection of standards of review:^[1][2]

Questions of law:

• De novo review: The reviewing court views the case from the same position as the lower court or agency—meaning that the reviewing court examines the case as if no prior ruling had been issued. Under this standard of review, no deference is afforded to the lower court or agency. Questions of constitutionality are generally reviewed de novo.^[1][2][5]
• Reasonableness: The reasonableness standard of review requires a reviewing court to determine whether a federal agency's action demonstrates a reasonable exercise of agency discretion as supported by the record.^[1]

Questions of fact:

• Clearly erroneous: The reviewing court examines the lower court's fact findings to determine whether a mistake has been committed.^[1]
• Arbitrary or capricious: Under the arbitrary or capricious standard of review, a federal court determines whether a federal agency's interpretation of a statute that the agency administers is arbitrary, capricious, not in accordance with the law, or implemented without following proper procedures. Arbitrary or capricious is one of two standards of review established by the Administrative Procedure Act (APA) for federal courts to evaluate the actions of federal agencies.^[1][6]
  • Hard look review: Hard look review is an application of the arbitrary-or-capricious test. Under Chevron deference, federal courts defer to reasonable interpretations of statutes by federal agencies. Hard look review seeks to determine what constitutes a reasonable interpretation. Using this standard, a court reviewing an agency action ensures that the agency takes all of the relevant facts into account as part of its decision-making process.^[7][8]
• Substantial evidence: The reviewing court examines the findings within a federal agency's record in order to determine whether an agency's action is backed by enough evidence to support the agency's conclusion. Substantial evidence is one of two standards of review established by the APA for federal courts to evaluate the actions of federal agencies.^[1][6]

Matters of procedure or discretion:

• Abuse of discretion: The reviewing court finds that the lower court reached a conclusion in error upon weighing the relevant factors in the case. The reviewing court must uphold the lower court's conclusion if the decision falls within a range of permissible determinations.^[1]
• Plain error: The plain error standard of review applies to cases in which an error in prior proceedings necessitates a review on appeal in order to prevent a miscarriage of justice.^[9][10]

See also

• Administrative Procedure Act
• Rulemaking
• De novo
• Deference

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Footnotes

v•e The Administrative State
Main	The Administrative State Project main page • Administrative State Project Index • Glossary of administrative state terms • Quotes about the administrative state • Administrative state • Rulemaking • Deference • Adjudication • Nondelegation doctrine
Reporting	Changes to the Federal Register • Completed OIRA review of federal administrative agency rules • Federal agency rules repealed under the Congressional Review Act • Historical additions to the Federal Register, 1936-2016 • Pages added monthly to the Federal Register, 1995-2017
Laws	Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
Cases	Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
Terms	Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography	"Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008)
Agencies	Administrative Conference of the United States • United States Civil Service Commission • U.S. Government Accountability Office • U.S. Office of Information and Regulatory Affairs • U.S. Office of Management and Budget