That agency decision-makers in enforcement actions must be objective, fair, and impartial is hardly debatable. It is equally obvious that a challenge to objectivity must be supported by actual evidence, not assumptions of prejudgment or bias. This essay criticizes Zen Magnets v. Consumer Product Safety Commission, a judicial review of an enforcement action that failed to follow the well-worn path that requires a presumption of honesty, integrity, and good faith when assessing the objectivity of administrative decisionmakers. The Zen court focused on one comment made by Consumer Product Safety Commission Chairman Robert Adler in a rulemaking, not even the enforcement action under review. That one comment, the court found, required a remand to the CPSC, nullified a product recall, and excluded Chairman Adler from further participation in that case. The decision may have put the public at risk by delaying any action by the CPSC on an allegedly dangerous product and denied Chairman Adler, a fair-minded and distinguished agency official, the right and responsibility to participate in an important case. Zen is predicated on an assumption of mistrust, the exact opposite assumption mandated by the Supreme Court. Were this approach to become the norm, it would chill the essential discourse between agency officials and the public, unnecessarily formalize agency process, and increase the likelihood of uninformed enforcement or regulation.
Andrew F. Popper, An Irrevocably Tainted Opinion: Zen's Threat to Public Discourse, 61 B.C.L. Rev. (2019), https://lawdigitalcommons.bc.edu/bclr/vol61/iss9/1