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.

.8 seconds of profanity = the Word That Must Not Be Written = indecency/obscenity = no Constitutional protection outrage = accountability

183 waterboardings = "so-called torture" = "can't ... smugly ... say ... ph, it's torture, and therefore it's no good" = "absurd" to claim prohibited by Constitution

Tortured math, that, from Justice Scalia
4.28.2009 9:17pm
Duffy Pratt (mail):
I'm curious how this squares with Chevron. Courts give deference to agency interpretations of statutes. I thought a large part of that had to do with the agency getting the first shot at the interpretation, and the need for some stability in the law. But if the agencies can just change their interpretation willy-nilly, wouldn't that mean that there is less underlying reason for judicial deference in the first place? Also, in a case where the agency has altered its interpretation of the statute, to which interpretation should the court give deference?
4.28.2009 9:25pm
Fox News probably will get it soon. Day before yesterday, there was a panel debate on waterboarding, during which anchorman Shepard Smith yelled, "This is the United States! We do not f*****g torture!" Then he was silent for a couple of seconds, after which he said, "Oops."
Oops indeed.
4.28.2009 9:29pm
ll (mail):

I have thought it proper to require agencies to provide fuller explanations when changing course.

Obama: "I won."

What more is needed.
4.28.2009 10:37pm
Borealis (mail):
Everyone knows that agencies often flip on policy decisions after a change in party of the Executive Branch. If courts require an explanation for the policy change in addition to rationale for the new policy, then courts must accept that there are just new appointees with different views. To require more than that will just force many contorted rationales.
4.29.2009 1:44am
David Welker (www):
Mr. Adler,

One thing to consider why you are thinking about this is that the issue of status quo bias (making it marginally more difficult for agencies to change their decisions) is conceptually separate from the issue of construing delegations to administrative agencies narrowly.

Just because a past administrative decision is somewhat more challenging to change does not change the fact that the issue has been delegated to the agency.

It is possible that any added burdens here are just going to add to bureaucratic inefficiencies without any corresponding benefit in terms of narrowing delegations of authority to administrative agencies.
4.29.2009 5:18am
Re FCC v. Fox Television

Fuck that shit.
4.29.2009 5:28am
Johnn Ballard (mail) (www):
Then there's this.
4.29.2009 7:56am
A concurring opinion by Justice Kennedy blurs the holding somewhat

In other news, the sun rose in the east and set in the west.
4.29.2009 1:47pm
JohnRJ08 (www):
As a parent, I was OK with this ruling, especially because it was limited to the major networks and not cable. There are fewer and fewer programs on network television that I can watch with my daughter without having to explain some of the language being used. These words are put into scripts for one reason: shock value. They don't advance the plot or make the improbable stories any more realistic. They're just thrown in to compete with the salty language on HBO and Showtime. Even ABC Family is getting out of line with its routine use of various obscenities. I'm not personally offended by these words, but I don't really want the networks validating their regular use by my kids. How many parents want to hear their 10-year-old dropping the f-word on regular basis? Not I. There are plenty of entertainment outlets that provide all the obscene language any adults needs to hear. At the end of the day, shouldn't there be a place where a family can watch a TV show without having to hear this stuff? It's difficult enough to teach a child the concept of appropriate and respectful language without the television networks imposing their own brand on families for the sake of ratings.
4.29.2009 4:09pm

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