Recent Articles of Interest

Biden should of course lead federal administrative agencies to take lawful action on the major issues of the day, from the pandemic, to climate change, to social inequality. [...]these and other actions should be taken in ways that recalibrate executive power, amplify and leverage the talents and resources of any number of competent actors outside of the West Wing and Cabinet, and remain mindful of the dangers of presidential unilateralism. For the last decade, the leading precedent on this point has been FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), in which Justice Scalia, writing for five justices, held that, within a zone of reason, an agency can abandon an old policy for a new one based upon unspoken political preferences. According to Justice Scalia, what we might call the "Fox power" is proper because it enables agencies to shift policies to fit the preferences of elected officials, enhancing political accountability.