Part I of this Article provides context for the debate over the Fox power by tracing the evolution of leading efforts over the last century to legitimize agency policymaking and close the “democracy deficit” that it purportedly creates. Part I focuses in particular on the courts’ development of arbitrariness review as a means of controlling agency policymaking, and it also pays particular attention to the “presidentialist” model that White House control of agency policymaking democratizes and legitimizes it. Part II takes a close look at the Fox litigation itself. This discussion reveals that Justice Scalia’s Fox power, like presidentialism, presupposes that extra-statutory political influences wielded by elected officials and their proxies can legitimize agency policy changes. Part III criticizes this framework for resting on an unrealistic understanding of democratic governance and electoral accountability, and it explains why Justice Breyer was right to insist that agencies should give (expert) answers to his “Why change?” query.
Richard W. Murphy,
Unfoxing Judicial Review of Agency Policy Reversals or “We Were Told to Like the New Policy Better” is Not a Good Reason to Change,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol54/iss4/5