Hard Look Review, Policy Change, and Fox Television
23 Pages Posted: 15 May 2011
Date Written: January 10, 2011
In FCC v. Fox Television Stations, Inc., the Supreme Court declared that when an agency alters preexisting policy in an adjudication, it does not necessarily need to make a case that its new policy is better than the old one. The Court acknowledged some exceptions to this proposition, but the overall effect was to relax prior understandings of the scope of judicial review of agency discretion. This short article examines the majority and dissenting opinions in Fox and concludes that the majority had the better of this argument. A relatively lenient judicial attitude toward changes in agency policy facilitates the ability of an incoming administration to alter policies with which it disagrees and also counteracts inherent tendencies toward inertia in the administrative process. This article does not defend all aspects of the Fox decision, nor does it offer any overall critique of hard look review of agency actions. It does, however, contend that stare decisis principles apply with less force to agencies than to courts.
The article concludes with a brief response to commentators who argue that small variations in standards for judicial review of agency actions (e.g., Chevron versus Skidmore) have little impact on the outcomes of cases. The suggestion here is that these claims, even if correct, do not necessarily discredit studies like the present one, which are less concerned with the intensity of review than with the question of what issues an agency needs to address in reaching a decision.
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