Politics and Policy Change in American Administrative Law

This essay uses Justice Scalia’s and Breyer’s dueling opinions in FCC v. Fox Television Stations, Inc., as a vehicle for exploring the contested relationship between politics and policy change in administrative law. In this case, a five-justice majority led by Justice Scalia insisted that an agency’s abandonment of an old policy position in favor of a new one should survive review for arbitrariness so long as the agency explains why its new position is reasonable. A different five-justice majority (yes – that adds up to ten) led by Justice Breyer expressed concern that Justice Scalia’s stance left too much room for politicization of policymaking. To curb such influence, Justice Breyer insisted that an agency, to justify abandoning an old policy, must do more than merely explain why its new policy, considered on its own, is reasonable. In addition, the agency must explain why it was reasonable to change from its old policy to the new one. Neither of these two approaches in Fox hits quite the right note regarding control of politics in policymaking. Justice Scalia’s view unduly minimizes the problem. Justice Breyer’s solution seems formalistic and easy to evade. A better way forward may lie in combining Justice Scalia’s simpler framework with Justice Breyer’s more suspicious attitude. We all know that strong preferences can distort judgment. Where a reviewing judge has reason to think that strong political preferences are affecting agency judgment, that judge should scrutinize the agency’s explanation with a sharper eye – or dare one say – a harder look. Taking a cue from Justice Frankfurter in Universal Camera, the courts should respond to the potential for excessive politicization of agency policymaking not with new doctrinal metaphysics but with suspicious “mood.”