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B. The Statutory and Theoretical Bases for the Record Rule
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The APA is clear on the evidentiary scope of judicial review of agency action: "[T]he court shall review the whole record or those parts of it cited by a party."45

This simple sentence suggests both a maximum ("the whole record") and a minimum ("those parts of it cited by a party") evidentiary standard for courts reviewing "agency action, findings, and conclusions."46
Overton Park.48

There, the Supreme Court considered a challenge, brought by Memphis residents, against the Secretary of Transportation's decision to build a highway through a popular park.49

The Court affirmed that judicial review of this decision should generally be limited to the "full administrative record that was before the Secretary at the time he made his decision."50

Two years later, in Camp v. Pitts,51 the Court reaffirmed the record rule, stating that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."52

Courts generally agree that the administrative record includes not just those materials considered directly by the agency decisionmaker but all materials considered by the agency as a whole in its decision-making process.53

The theoretical basis for the record rule is the fundamental notion that executive branch actions enjoy a "presumption of regularity" when reviewed by Article III courts.54 In other words, courts presume—absent a showing to the contrary—that agency officials have acted in good faith and have not misrepresented the facts.55

The Supreme Court first explicitly articulated the presumption of regularity in 192656 and has reiterated it many times since,57 though often without much explanation.58

The presumption of regularity reflects separation of powers concerns: courts should not frustrate congressional directives or executive discretion by "prob[ing] the mental processes" of agency decisionmakers.59

The presumption also reflects institutional competence concerns: administrative agencies operate in highly specialized spheres of expertise, and their decisions may rest on technical reasoning or analysis.60 In the administrative-record context, we may question the ability of a generalist judge to second-guess whether a record submitted by an agency sufficiently explains a specialized decision.

C. Exceptions to the Record Rule


The record rule is not without exceptions.

After all, the presumption of regularity is a rebuttable presumption.61 In the administrative-record context, APA plaintiffs can attempt to rebut the presumption by bringing either a "motion to complete" the record or a "motion to supplement" the record.62 This area of law has been the subject of extraordinary confusion among lower courts, primarily due to inconsistent terminology.63

Some judges have recently added clarity by explaining the distinction between completion and supplementation.64

When a plaintiff argues for completion, he is arguing that there are materials that should have been properly included in the administrative record but were excluded by the agency.65

In other words, the materials in question were actually considered by the agency during the decision-making process but were either unintentionally or intentionally left out of the record submitted to the court.

Given the presumption of regularity, courts generally require plaintiffs to show "clear evidence" that the materials in question were actually considered by the agency and, thus, should have been included.66

Even scholars who are otherwise skeptical of broad exceptions to the record rule are generally supportive of a plaintiff's ability to complete the record if the plaintiff can demonstrate that the agency actually considered other materials in the first place.67


When a plaintiff argues for supplementation, he is arguing that there are materials outside the proper scope of the administrative record—materials that the agency itself did not consider in making its decision—that courts should nonetheless consider when reviewing the agency action.69
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This category of extra-record evidence includes materials that were not before the agency during the decision-making process as well as internal materials that are only tangentially related to the questioned decision.70

This could include public statements by a government official,71 related emails exchanged by government officials,72 documents considered by the agency in similar decisions,73 or documents produced after the agency made the questioned decision.74

 Sometimes, plaintiffs simply ask for "discovery in general."75

Plaintiffs seeking record supplementation are generally trying to show that an agency's stated explanation for its decision was not the true motivating factor or that politics or animus improperly influenced the decision-making process.

Extra-record evidence can be used to bolster an arbitrary and capricious claim since it can indicate that the agency committed a "clear error of judgment," "relied on factors which Congress has not intended it to consider," or "failed to consider an important aspect of the problem."76

Scholars continue to debate the virtue of motions to supplement the record as well as the virtues of the record rule more broadly.77

When deciding whether a plaintiff may supplement the record, lower courts generally apply the "strong showing of bad faith or improper behavior" standard first articulated by the Supreme Court in
Overton Park.78

In this 1971 decision, the Court reversed and remanded an APA case after a lower court based its decision on affidavits presented by the Secretary after litigation had already begun.79

These affidavits, the Court held, were "merely 'post hoc' rationalizations" and thus "an inadequate basis for review."80

The Court remanded for the district court to decide the case on the full administrative record.81

It left open the possibility of requiring agency officials to give testimony explaining their decision but cautioned that such "inquiry into the mental processes of administrative decisionmakers is usually to be avoided."82

Only after a "strong showing of bad faith or improper behavior" may such an inquiry be made.83

Some scholars have criticized the Overton Park "bad faith" language as having no basis in the text of the APA and as confusing in application.84

Indeed, the Court has never fully explained what is required to make a strong showing of bad faith or improper behavior.85

In his partial concurrence in Department of Commerce, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Brett Kavanaugh, questioned the "legitimacy and scope" of the Overton Park exception and noted that it "may warrant future consideration."86

Moreover, lower courts rarely find the Overton Park exception satisfied.87

Nonetheless, a majority of the Court in Department of Commerce affirmed the Overton Park standard as a "narrow exception" to the rule against supplementing the record.88

Thus, the Overton Park exception still stands, despite the criticism.

Sokaogon Chippewa Community v. Babbitt,89 a Western District of Wisconsin decision, involves a rare example of a court holding that plaintiffs satisfied the Overton Park bad faith exception.

The case involved a group of Chippewa Indians who submitted applications to the Department of the Interior to convert a greyhound racing facility into a casino.90

The Department denied their application, citing opposition from the surrounding communities.91 Plaintiffs moved to supplement the administrative record, arguing there was "improper political influence" on the Department's decision.92

To substantiate this claim of bad faith, and push it over the "strong showing" line required by Overton Park, plaintiffs cited several suspicious communications between opposition tribes, legislators, lobbyists, and the Secretary of the Interior's staff, as well as procedural irregularities in the Department's actions.93

Ultimately, the court granted plaintiffs' motion to supplement the record, finding that the plaintiffs raised a "substantial suspicion" of bad faith or improper behavior.94

This case indicates that, in order to make a strong showing of bad faith, plaintiffs may be required to offer the court a preview of the evidence with which they hope to supplement the record.

If the Chippewa court had denied the plaintiffs' motion to supplement, their citations to the suspicious communications would not have been included in the record and, thus, would not have been considered by the court on the merits.

Though it has explicitly endorsed only the Overton Park exception, the Supreme Court has also implied that supplementation is appropriate where an agency gives such an inadequate explanation of administrative action that it frustrates judicial review.95

The exception can be traced back to Camp v. Pitts, where the Court vacated a circuit court's order for a trial de novo after a Comptroller offered an inadequate explanation for his denial of a bank charter.96


The Court explained that if "there was such failure to explain administrative action as to frustrate effective judicial review," the lower court should "obtain from the agency . . . such additional explanation of the reasons for the agency decision as may prove necessary."97

The Court may have been referring to record completion, but some lower courts have interpreted this language in the context of record supplementation.98

The Court did not mention the "failure to explain" exception in Department of Commerce, and some scholars have criticized it as "contrary to the APA."99

Moreover, an agency actively seeking to frustrate judicial review would necessarily be exhibiting bad faith as well.

But the Court has never explicitly foreclosed a "failure to explain" exception to the record rule.

While the Overton Park bad faith exception stands as the general rule for extra-record evidence, the circuits have applied the exception in varying and sometimes contradictory ways.100

The D.C. Circuit, for example, has recognized three "unusual circumstances" that will justify record supplementation:

    (1) the agency deliberately or negligently excluded documents that may have been adverse to its decision;

(2) the district court needed to supplement the record with background information in order to determine whether the agency considered all of the relevant factors; or

(3) the agency failed to explain administrative action so as to frustrate judicial review.101

The Ninth Circuit, on the other hand, has recognized four exceptions that overlap with the D.C. Circuit's three exceptions in varying ways.

First, extra-record evidence is permissible if it is "necessary to determine whether the agency has considered all relevant factors and has explained its decision."102

This overlaps with the D.C. Circuit's second and third exceptions.

Second, extra-record evidence is permissible if the agency "relied on documents not in the record."103

This is properly understood as completion of the record, not supplementation, yet another indication of the confusion that has garbled this area of law.

Third, extra-record evidence is permissible if it is "necessary to explain technical terms or complex subject matter,"104 an exception unique to the Ninth Circuit and with little basis in the Overton Park bad faith standard. Finally, extra-record evidence is permissible if the "plaintiffs make a showing of agency bad faith,"105 a clear homage to Overton Park.

Despite these varying approaches from the circuits, the Supreme Court's most recent statement is fairly clear: extra-record evidence is allowed only with a strong showing of bad faith or improper behavior.106

II. The Record Rule and Constitutional Challenges to Agency Action


This Part introduces the legal question at the heart of this Comment: whether the record rule applies to constitutional challenges to administrative agency action.

Part II.A discusses how constitutional claims differ from arbitrary and capricious claims and introduces the evidentiary question raised by constitutional claims.

Part II.B traces the Supreme Court's limited treatment of the question, concluding that the Court has never offered a clear answer.

Finally, Part II.C discusses the divergent approaches of the lower courts, dividing them into three buckets.