Supreme Court Limits Court Review of Government’s Change of Policy

By John R. Fleder –

On April 28, 2009, the United States Supreme Court issued an important ruling on an administrative law issue.  In FCC v. Fox Television Stations, the Court by a 5-4 vote ruled that the FCC had properly explained its decision that Fox had allowed "indecent" language to appear on two live broadcast incidents where performers (Cher, Nicole Richie, and Paris Hilton) uttered alleged obscenities.  The Second Circuit Court of Appeals had earlier reversed the FCC's decision when that court concluded that when an agency changes its policy on a matter, the agency must give a "more substantial explanation" for its new policy.  The Supreme Court reversed and concluded: "[w]e find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review."  Instead, the Court stated that an agency should ordinarily acknowledge that it is changing its position and that there are good reasons for the new policy.  However, according to the Supreme Court, the agency need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one. 

One can safely assume that the new Obama Administration will cite this ruling whenever it chooses to alter a policy developed in the prior Administrations.