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When reviewing agency action, the Administrative Procedure Act (APA) instructs courts to “review the whole record or those parts of it cited by a party.” The Supreme Court has interpreted this brief statement as a restriction on the evidentiary scope of judicial review under the APA. Courts may consider only the administrative record compiled by the agency, which includes all materials before the decisionmaker at the time he or she made the decision. The Supreme Court has recognized one exception: plaintiffs may supplement the administrative record if they make a strong showing of bad faith or improper behavior on the part of the agency.

Courts consistently apply the record rule to arbitrary and capricious claims. It is less clear whether the rule applies to constitutional claims. This issue crept into two recent, high-profile Supreme Court cases—Department of Commerce v. New York and Regents of the University of California v. Department of Homeland Security—but the Court has yet to definitively resolve the issue. In the meantime, lower courts have developed three alternative approaches. This Comment argues that the record rule, though one with a robust bad faith exception, should apply to all constitutional challenges to agency action. It analyzes the APA’s text, legislative history, pre- and post-APA precedent, and policy considerations to argue for a record rule approach.

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