Are political reasons inherently arbitrary or, in fact, legitimate??? (2009) FCC v. Fox FCC changed its policy regarding used on T.V. “offensive language” and did not enforce the policy retroactively. Challenged as arb.&cap. SCOTUS says it is not. Rule: An agency that is changing its position must at least and the new position on the acknowledge the change justify merits. BUT it apparently directly compare the old and need not new policies and explain why the latter is preferable. Breyer/Scalia divide dissent argue that a heightened standard of review Breyer’s doesn’t is nec. for changes in agency policy, but does highlight relevant factors agency might have failed to consider and contends that this is a situation where agency has burden to explain what factors justify its change. SCALIA, writing for the majority, concedes that there will be specific circumstances where such a justification is nec. (see case brief), but thinks that here the agency has accounted for reliance interests and the change is not based on new data which must be explained. Rather, a justified change in what the it’s agency believes to be the best standard, given the current environment. The debate over what exactly an agency must account for in terms of changed knowledge, law, circumstances to justify its change in policy speaks to a dispute over what role politics/value judgements should play in agency decisionmaking. Requiring the greater level of explanation Breyer seeks suggests a position that politics should play less of a role. But this a reason we like agencies? isn’t However, if we take the more relaxed Scalia position, then is there to invalidate an agency action that clearly in no way isn’t factual error? Significance of Agency Independence In his dissent, Breyer suggests that an independence agency’s indicates that Congress wanted its decisions to be influenced less by the policy preferences of the current administration, more expertise-driven (Mass. move, again). dissent v. EPA Stevens’s alludes to this idea as well. however, that N.B., State Farm involved a purely executive agency, and there the court found the rescission arb.&cap., probably due to some skepticism as to the political responsiveness as well. agency’s
Are political reasons inherently arbitrary or, in fact, legitimate??? FCC v. Fox (2009) FCC changed its policy regarding “offensive language” used on T.V. and did not enforce the policy retroactively. Challenged as arb.&cap. SCOTUS says it is not. Rule: An agency that is changing its position must at least acknowledge the change and justify the new position on the merits. BUT it apparently need not directly compare the old and new policies and explain why the latter is preferable. Breyer/Scalia divide Breyer’s dissent doesn’t argue that a heightened standard of review is nec. for changes in agency policy, but does highlight relevant factors agency might have failed to consider and contends that this is a situation where agency has burden to explain what factors justify its change. SCALIA, writing for the majority, concedes that there will be specific circumstances where such a justification is nec. (see case brief), but thinks that here the agency has accounted for reliance interests and the change is not based on new data which must be explained. Rather, it’s a justified change in what the agency believes to be the best standard, given the current environment. The debate over what exactly an agency must account for in terms of changed knowledge, law, circumstances to justify its change in policy speaks to a dispute over what role politics/value judgements should play in agency decisionmaking. Requiring the greater level of explanation Breyer seeks suggests a position that politics should play less of a role. But isn’t this a reason we like agencies? However, if we take the more relaxed Scalia position, then is there no way to invalidate an agency action that isn’t clearly in factual error? Significance of Agency Independence In his dissent, Breyer suggests that an agency’s independence indicates that Congress wanted its decisions to be less influenced by the policy preferences of the current administration, more expertise-driven (Mass. v. EPA move, again). Stevens’s dissent alludes to this idea as well. N.B., however, that State Farm involved a purely executive agency, and there the court found the rescission arb.&cap., probably due to some skepticism as to the agency’s political responsiveness as well.