Is Scalia's "F-Word" Opinion Good News for Obama?

While the headlines focus on the subject matter of today's 5-4 Supreme Court ruling rejecting the broadcaster's challenge to the FCC's decision to sanction the broadcast of "fleeting expletives," the real significance of FCC v. Fox Television Stations could be the decision's impact on administrative law. As Eugene notes below, the Court avoided the underlying First Amendment question. As a consequence, the decision turned on whether the FCC's adoption of a more restrictive policy with regard to expletives during prime time telecasts was "arbitrary and capricious."

In upholding the FCC's decision, the Court appeared to reject the principle that the burden on a federal agency to justify its policy choice is greater when the agency is altering a prior policy. One effect of this decision could be that it will be easier for the Obama Administration to reverse Bush Administration policies and revise regulations adopted in the past eight years. As Dan Farber explains:

One issue in today's case was whether the FCC needed to give a fuller explanation of its action because it was modifying existing policy. Some courts have read a prior Supreme Court case to require more evidence and explanation when an agency is shifting policy. The Court rejected this view. Justice Scalia did say that the agency must acknowledge the change of policy and must take into account any evidence that was relied on to support the previous rule. But, according to the Scalia opinion, the fact that an agency is changing course does not require a harder look at its decision by a reviewing court. A concurring opinion by Justice Kennedy blurs the holding somewhat but Kennedy did join the majority opinion as well.

Particularly given the Kennedy concurrence, today's ruling may not be a stark change from the approach taken by lower courts in reviewing agency policy shifts. But Justice Scalia's opinion does make such shifts by agencies easier and at least at the margins should improve the agency's chances of surviving judicial review. Today's decision may or may not be good administrative law doctrine. But there's no doubt that it will make life easier for the Obama administration.

While I need to digest the opinion a bit more, I think Professor Farber is correct on both points: This decision should make things easier for the Obama Administration even if the underlying doctrine is problematic. For a variety reasons, including my belief that delegations to agencies should be cosntrued narrowly, I have thought it proper to require agencies to provide fuller explanations when changing course. In particular, I think it is reasonable to require an agency to provide a reasoned explanation for the policy change, in addition to an explanation for the new policy itself. Of course this is not necessarily all that much of an added burden, but I am inclined to believe it is the proper approach. Perhaps I'll have more to say once I've had more time to think about it.