Delrahim: “Don’t Stop Believing” in the music decrees

Delrahim: “Don’t Stop Believing” in the music decrees

By Gus Hurwitz

Almost fifty years ago the Rolling Stones sang that iconic line: “you can’t always get what you want.” Mick Jagger probably wasn’t thinking of administrative law when writing the album “Let it Bleed.” However, fifteen years later the U.S. Supreme Court seemed to set out to prove Jagger wrong. In its Chevron decision, the Supreme Court directed federal courts to defer to agencies’ interpretations of statutes, giving agencies broad discretion to use those statutes to get whatever policies they may want. Today, agencies are able to get whatever statutory interpretation they want with the barest minimum of justification. Indeed, the doctrines of judicial deference even allow agencies to reverse course or flip-flop between policies for almost any reason, including “the election of a new President of a different political party.”

But you don’t get a reputation for “moves like Jagger” by being wrong. While agencies have very broad discretion to interpret adopt and change policies to get what they want, that discretion does have its limits. This is perhaps most strongly the case when a market has significantly relied on the current policy. Justice Scalia wisely stated that “it would be arbitrary or capricious to ignore” serious industry reliance interests. According to the Supreme Court’s FCC v. Fox decision, this means that an agency needs to engage in greater process