Arguments in favor of judicial deference
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| What is deference in the context of the administrative state? Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here. |
| Five Pillars of the Administrative State |
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| Judicial deference |
| •Judicial deference •Timeline •Court cases •Executive orders •Legislation •Arguments for and against •Reform proposals •Scholarly work |
| More pillars |
| • Nondelegation • Executive control of agencies • Procedural rights • Agency dynamics |
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Judicial deference as a doctrine faces an uncertain future. The U.S. Supreme Court has signaled a willingness to reexamine the scope of deference, and numerous states have narrowed deference or prohibited it altogether.
This page captures the main arguments that have been advanced in favor of judicial deference as a doctrine.
There are six main types of argument in favor of judicial deference:
Deference respects expertise
This argument says that judicial deference to administrative agencies keeps judges from interfering with agencies using their experts to solve policy problems.
The following claims elaborate the defense of deference based on agency expertise.
Claim: Deference allows for expertise
This claim means that administrative agencies have expert staffs who are better-equipped than judges to handle the technical and specialized questions that come up during the regulatory process. Under a system of judicial deference, these experts would be able to solve difficult problems without the interference of non-specialist judges.
- Law professor Jonathan R. Siegel writes, “In addition to the main 'delegation' theory discussed in the text, Chevron also hinted that courts should defer to agency interpretations of statutes they administer because of agencies’ superior expertise and because agencies are more politically accountable than courts. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984).”[1] Chevron is a U.S. Supreme Court decision that said courts must yield when agencies make reasonable interpretations of ambiguous laws they are empowered to administer.[2]
- Law professors Jacob Gersen and Adrian Vermeule argue that courts should defer to the scientific expertise of agencies.[3] They write, “[A] reviewing court must remember that the [agency] is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”[3]
- Law professor Aditya Bamzai cited James Landis’s argument from The Administrative Process saying that agencies would be better than courts at answering specialized questions of law.[4] He writes, “But as to questions of law, Landis seemed to part ways with the prevailing approach. In a revealing statement, Landis observed that ‘[t]he interesting problem as to the future of judicial review over administrative action is the extent to which judges will withdraw, not from reviewing findings of fact, but conclusions upon law . . . due to the belief that’ legal issues (like factual ones) ‘are best handled by experts.’ Landis contended that ‘the same considerations of expertness’ that prompted deference on factual issues ‘have validity in the field of law.’ Indeed, the commonplace ‘desire to have courts determine questions of law is related to a belief in their possession of expertness with regard to such questions.’ Questions of law, however, should be ‘decided by those best equipped for the task’ due to their expertise, which would in certain specialized circumstances be administrative agencies rather than courts. The message from The Administrative Process was clear: judicial deference to executive interpretation was not the law, circa 1938, but some form of the doctrine should be in the future.”[4]
Claim: Agencies have the discretion to consider relevant factors during decision making
This claim focuses on the requirements of Chevron deference, which instructs courts to uphold reasonable agency interpretations of ambiguous statutes, in the context of the regulatory process. When an agency is deciding how to regulate in a particular area, this claim argues that courts should defer to the agencies' choices about which factors to consider during their deliberations.
- Jacob Gersen and Adrian Vermeule argue that agencies should consider relevant factors as established by Congress in statutes. They write, “Given that the relevant factors inquiry is really one of statutory interpretation, it is subject to the rules of statutory interpretation that always govern in administrative law. One of those is the Chevron doctrine, under which agencies, rather than courts, enjoy the authority to fill in statutory gaps and ambiguities. The Court has made it plain that Chevron applies to the interpretive question about what factors the statute makes relevant. And, three terms ago, the Court also explained that Chevron applies to agency interpretations of their own jurisdiction as well. In particular, where statutes are silent or ambiguous, agencies—rather than courts—enjoy discretion to decide what the relevant factors may be and whether to consider those factors.”[3]
Deference produces better outcomes
This argument says that judicial deference to administrative agencies leads to better outcomes than if courts reviewed all agency decisions on a de novo basis. Beyond better outcomes, some proponents of this argument say agencies have more flexibility to solve problems when judges defer to them and that chaos would follow if courts were less deferential. Most claims involve Chevron v. Natural Resources Defense Council, a 1984 U.S. Supreme Court decision that said courts must yield when agencies make reasonable interpretations of ambiguous laws they are empowered to administer.[2]
Claim: Chevron deference is better than a case-by-case approach
This claim means that when judges follow the deference rules outlined in the Chevron decision, there will be more stability, accountability, and political participation than if judges follow a less-precise rule about when to defer to agency decisions. Some who advance this claim also argue that the Chevron decision brought clarity to conflicting historical precedents regarding how judges were supposed to treat agency interpretations of the law or specific facts.
- Justice Antonin Scalia argued in a lecture that Chevron is better than the previous case-by-case approach because Congress can anticipate how ambiguity will be resolved by agencies better than how judges will rule.[5] He says, “If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known. The legislative process becomes less of a sporting event when those supporting and opposing a particular disposition do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer will be provided by the courts or rather by the Department of Labor.”[5]
- Scalia argued that even if Chevron doesn’t line up with congressional intent for agency power, the previous practice of case-by-case evaluation didn’t either.[5] He says, “If the Chevron rule is not a 100% accurate estimation of modem congressional intent, the prior case-by-case evaluation was not so either-and was becoming less and less so, as the sheer volume of modem dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the 'genuine' legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.”[5]
- Scalia argued that Chevron is better than the case-by-case approach because it promotes flexibility and political participation.[5] He says, “one of [Chevron’s] major advantages from the standpoint of governmental theory, [is] to permit needed flexibility, and appropriate political participation, in the administrative process. One of the major disadvantages of having the courts resolve ambiguities is that they resolve them for ever and ever; only statutory amendment can produce a change.” And, “If Congress is to delegate broadly, as modem times are thought to demand, it seems to me desirable that the delegee be able to suit its actions to the times, and that continuing political accountability be assured, through direct political pressures upon the Executive and through the indirect political pressure of congressional oversight. All this is lost if 'new' or 'changing' agency interpretations are somehow suspect.”[5]
- Scalia continued: “[T]he capacity of the Chevron approach to accept changes in agency interpretation ungrudgingly seems to me one of the strongest indications that the Chevron approach is correct. It has always seemed to me utterly unrealistic to believe that when an agency revises one of its interpretative regulations, or one of the legal rules that it applies in its adjudications-when the NLRB, for example, decides that employer action previously held to be an 'unfair labor practice' is no longer so, or when the Federal Trade Commission amends one of its regulations to declare action previously permitted an ‘unfair or deceptive trade practice’-the agency was admitting that it had ‘got the law wrong.’ And it has thus seemed to me inappropriate to look askance at such changes, as though we were dealing with a judge who cannot make up his mind whether the rule in Shelley's Case applies or not. Rather, the agency was simply ‘changing the law,’ in light of new information or even new social attitudes impressed upon it through the political process-all within the limited range of discretion to 'change the law' conferred by the governing statute. Chevron, as I say, permits recognition of this reality.”[5]
- Aditya Bamzai cited Antonin Scalia’s 1989 lecture on deference saying that Chevron resolved a problem in the law.[4] He writes, “Indeed, on one view, Chevron—if it had no other beneficial aspects—at the very least cleared up the intellectual and jurisprudential disarray that had existed for over a century prior to 1984.”[4]
- Attorney T.J. McCarrick writes in a law review article, “Moreover, efforts to rein in Chevron are fraught with risk.[6] Aside from line-drawing problems, sorting agency action into substantial, insubstantial, jurisdictional, and non-jurisdictional buckets would 'transfer any number of interpretive decisions . . . about how best to construe an ambiguous [statute] in light of competing policy interests' from executive agencies to federal courts. It would also invite chaos, replacing Chevron’s blanket presumption with an ad hoc, totality-of-the-circumstances test that would replicate the incoherence of pre-Chevron case law.”[6]
Claim: Chevron allows for agency flexibility
This claim refers to the idea that deference frees agencies to change their minds about policy when circumstances change, which allows them to adapt to new problems without roadblocks from judges.
- T. J. McCarrick writes, “Chevron offers agencies flexibility to pursue different—and yes, opposite—policy goals than their predecessors. Put differently, it prevents ossification of federal law.”[6]
Deference is constitutional
This argument says that the U.S. Constitution allows for judicial deference to administrative agencies and that such deference does not violate the nondelegation doctrine. The nondelegation doctrine is a legal principle that says legislatures may not give away legislative power to other branches of government or to private entities. The argument is developed by the following claims.
Claim: Chevron deference does not create judicial bias in favor of agencies
This claim argues that Congress empowers agencies to make decisions and that courts deferring to those decisions does not mean that courts are biased in favor of agencies. According to this claim, courts that defer to congressional will to empower agencies are following the law.
- Jonathan R. Siegel writes, “There is no bias when a judge enforces a statute that expressly delegates authority to an administrative agency. Innumerable statutes expressly delegate authority to an agency to make some decision—say, to set the maximum levels of a pollutant in the air or drinking water in accordance with a statutory standard. In such cases, when the agency exercises the power delegated to it, judicial review is routinely held to be available only for rationality. Challengers of the agency’s action therefore labor under the same burden as to which Hamburger complains—they can win only if they convince a reviewing court that the agency’s action is not only wrong, but irrational. The agency has a clear advantage. And yet no one would claim that courts are unconstitutionally showing bias in favor of agencies in such cases. The agencies have the advantage simply because courts will necessarily permit the agencies to exercise the power conferred on them by statute.”[1]
Claim: The nondelegation doctrine allows Chevron deference
According to the nondelegation doctrine, Congress may not give away its legislative power to another branch of government. One interpretation of Chevron v. NRDC (1984), a case that instructs courts to defer to reasonable agency interpretations of ambiguous laws, is that Congress delegates policy-making authority to agencies implicitly when it leaves laws ambiguous. This claim focuses on those implicit delegations of authority and argues that they do not violate the nondelegation doctrine.
- Jonathan R. Siegel writes, "[W]hatever decisionmaking authority Congress implicitly confers on agencies by virtue of Chevron, Congress could have conveyed to agencies expressly. The authority conferred might or might not violate the nondelegation doctrine, but the form by which the authority was conferred should make no difference. Once again, therefore, Chevron makes things no worse from a nondelegation perspective."[1]
Claim: Judges may evaluate policy outcomes to make decisions
This claim focuses on the idea that the U.S. Constitution allows courts to weigh the policy consequences of a decision as they evaluate whether an agency action followed the law.
- Antonin Scalia argued in a speech that courts are allowed to consider policy consequences when they make decisions.[5] He says, “Surely one of the most frequent justifications courts give for choosing a particular construction is that the alternative interpretation would produce ‘absurd’ results, or results less compatible with the reason or purpose of the statute. This, it seems to me, unquestionably involves judicial consideration and evaluation of competing policies, and for precisely the same purpose for which (in the context we are discussing here) agencies consider and evaluate them—to determine which one will best effectuate the statutory purpose. Policy evaluation is, in other words, part of the traditional judicial tool-kit that is used in applying the first step of Chevron—the step that determines, before deferring to agency judgment, whether the law is indeed ambiguous. Only when the court concludes that the policy furthered by neither textually possible interpretation will be clearly "better" (in the sense of achieving what Congress apparently wished to achieve) will it, pursuant to Chevron, yield to the agency's choice. But the reason it yields is assuredly not that it has no constitutional competence to consider and evaluate policy.”[5]
Claim: Chevron reconciles the administrative state with constitutional law principles
This claim refers to the idea that Chevron deference, which requires courts to uphold reasonable agency interpretations of ambiguous statutes, helps bring the structural innovations of the administrative state within the bounds of the U.S. Constitution.
- Law professor Cass R. Sunstein makes the case that a judicial deference principle, like the one articulated in Chevron can help courts and agencies discern the meaning of ambiguous laws.[7] Such a principle might bridge the divide between traditional constitutional law and administrative law.[7] He elaborates in a 1990 law review article, "By developing a clear view of the relationship among [interpretive] principles, we might ultimately be able to reconcile Chevron, even in its broader formulations, with approaches to statutory interpretation that help to discipline the administrative state through legal constraints on the exercise of public power. A reconciliation of this sort would count as one among a wide range of steps designed to adapt a legal system founded on common law principles to the aspirations and pathologies of the administrative state."[7]
- Sunstein adds that judicial deference depends on congressional instructions to agencies.[7] He writes, "Before the discretionary, policy-making administrative agency became pervasive, the notion that courts would interpret the law, including federal statutes, seemed axiomatic. In the twentieth century, however, Congress frequently has delegated basic implementing authority to regulatory agencies, and the allocation of interpretive power has become far more complex. Any principles of deference to administrators must of course depend on congressional instructions, at least as a general rule."[7]
Deference recognizes congressional delegations of authority to agencies
This argument defends judicial deference to administrative agencies saying that Congress gives agencies, not courts, the power to resolve ambiguities found within statutes. The following claims elaborate on the argument.
Claim: Statutory ambiguity should be understood as a delegation of authority
According to this claim, ambiguous laws contain implicit authority for agencies to fill in the gaps left by ambiguity. Courts defer to reasonable agency decisions made within the bounds of such ambiguity out of respect for that implicit instruction from Congress.
- Jonathan R. Siegel writes, “In his classic article, Marbury and the Administrative State, Professor Henry Monaghan made the key observation that ambiguity in a statute entrusted to an administrative agency for enforcement is best understood as a delegation of power to the agency. A year later, Chevron endorsed this concept by holding that an ambiguous provision in an agency statute should be deemed to constitute an implicit delegation of power to the agency to fill the gap left by Congress. Thus, the most basic reason why agencies should have the power to resolve ambiguities in provisions of statutes they administer is that Congress should be understood to have delegated this power to agencies.”[1]
- Law professor Henry Monaghan writes in a law review article, “[J]udicial review of administrative action contains a question of the allocation of law-making competence in every case, given congressional power to delegate law-making authority to administrative agencies. The court's interpretational task is (enforcement of constitutional restrictions aside) to determine the boundaries of delegated authority. A statement that judicial deference is mandated to an administrative "interpretation" of a statute is more appropriately understood as a judicial conclusion that some substantive law-making authority has been conferred upon the agency. Where deference exists, the court must specify the boundaries of agency authority, within which the agency is authorized to fashion authoritatively part, often a large part, of the meaning of the statute. By contrast, to the extent that the court interprets the statute to direct it to supply meaning, it interprets the statute to exclude delegated administrative law-making power. In this context, the agency view of what the statute means may persuade, but it cannot control, judicial judgment.”[8]
- Siegel writes, “[S]ometimes the best construction of a statute is that the statute vests discretion in the executive. Under this view, when a court interprets an administrative statute, finds it to be ambiguous, and defers to an agency’s reasonable construction of the statute, the court is fully exercising its power and duty to interpret the statute; it is simply doing so using a rule of statutory interpretation under which the correct interpretation of an ambiguity in an administrative statute is as an additional delegation of authority to the agency.”[1]
- Siegel writes, “Courts should not infer that Congress has delegated the interpretive power to agencies. But where an agency statute is ambiguous, the court is to interpret the statute as creating a menu of permissible actions and delegating to the agency the power to choose among them.”[1]
- Siegel writes, “Thus, the basic response to the critics is simple, already established in the scholarly literature, and already unanimously approved by the Supreme Court. Chevron deference is constitutionally permissible because it is merely a way of conceiving of what Congress is doing when it gives an agency ambiguous instructions. Permitting an agency to resolve such ambiguity is ‘simply one way of recognizing a delegation of law-making authority.’”[1]
Claim: Sometimes courts fulfill their judicial duty by interpreting ambiguous statutes as vesting power in agencies
This claim focuses on the idea that courts fulfill their duty to interpret the law by recognizing that ambiguous statutes are delegations of authority to agencies to fill in gaps.
- Jonathan R. Siegel writes, “In sum, the Article III objection to Chevron deference fails. Properly understood, Chevron does not wrest the interpretive power from courts and give it to agencies. It leaves courts to interpret agency statutes, but under an implicit rule (which could be made explicit by Congress’s passage of the hypothetical CIA) that ambiguous statutes are to be deemed to delegate policy discretion to agencies. An interpretation of a statute that determines that the statute delegates discretion is still an interpretation.”[1]
- Antonin Scalia argued in a speech that the theoretical justification of Chevron comes from the intent of Congress as revealed by a particular statute.[5] He says, “In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: ‘The extent to which courts should defer to agency interpretations of law is ultimately 'a function of Congress' intent on the subject as revealed in the particular statutory scheme at issue.' ‘An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion—i.e., whether its resolution of the ambiguity is reasonable.”[5]
Deference is required by separation of powers
This argument says that separation of powers principles require judicial deference to administrative agencies when resolving ambiguous statutes involves making policy judgments. Separation of powers refers to the idea that the functions of government should be divided between the legislative, executive, and judicial branches. Since policy judgments are political questions, this argument says that the political branches, Congress and the president, must resolve them instead of judges. The argument is developed in the following claims.
Claim: Separation of powers requires deference
This claim argues that the political branches, Congress and the president, are the ones who are empowered to make policy choices in the United States system of separation of powers. When Congress leaves ambiguity in a statute, this claim says it is for the executive branch to resolve and that judges should defer to that executive resolution.
- T.J. McCarrick writes, “Perhaps most importantly, the Chevron framework also reinforces separation-of-powers norms. Though rules and adjudications “take ‘legislative’ and ‘judicial’ forms,” agency action in a zone of ambiguity is an exercise of executive power. But only such power as the legislature confers. 'Congress knows how to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.' And when it comes to regulation, courts should not do for Congress what Congress can do for itself.”[6]
- Antonin Scalia rejected the idea that separation of powers principles require judicial deference to agencies, but he gave a clear summary of the idea in a speech from 1989.[5] He says, ”[T]he constitutional principle of separation of powers requires Chevron. The argument goes something like this: When, in a statute to be implemented by an executive agency, Congress leaves an ambiguity that cannot be resolved by text or legislative history, the 'traditional tools of statutory construction,' the resolution of that ambiguity necessarily involves policy judgment. Under our democratic system, policy judgments are not for the courts but for the political branches; Congress having left the policy question open, it must be answered by the Executive.”[5]
Deference adheres to legal practices and precedent
This argument says that Chevron and other post-WWII cases that established judicial deference to administrative agencies were in line with previous court decisions. In addition, the argument says that such deference is consistent with the requirements and background of the Administrative Procedure Act (APA), which governs agency procedures. Finally, some defenders of judicial deference to administrative agencies cite as precedent the deferential way courts have handled cases involving writs of mandamus, which is a court order to government officials commanding them to correct an abuse of discretion or fulfill an official duty.[9]
Claim: Chevron (1984) did not make new law
This claim argues that Chevron, which requires courts to uphold reasonable agency interpretations of ambiguous laws, was not a change from precedent.
- Antonin Scalia argued in a speech that the Chevron doctrine didn’t make new law.[5] He says, “It should not be thought that the Chevron doctrine—except in the clarity and the seemingly categorical nature of its expression-is entirely new law. To the contrary, courts have been content to accept "reasonable" executive interpretations of law for some time.”[5]
- Scalia cited the Attorney General’s Committee on Administrative Procedure from 1941 on deferring to agency expertise.[5] He says, “Even on questions of law [independent judicial] judgment seems not to be compelled. The question of statutory interpretation might be approached by the court de novo and given the answer which the court thinks to be the 'right interpretation.' Or the court might approach it, somewhat as a question of fact, to ascertain, not the 'right interpretation,' but only whether the administrative interpretation has substantial support. Certain standards of interpretation guide in that direction. Thus, where the statute is reasonably susceptible of more than one interpretation, the court may accept that of the administrative body. Again, the administrative interpretation is to be given weight-not merely as the opinion of some men or even of a lower tribunal, but as the opinion of the body especially familiar with the problems dealt with by the statute and burdened with the duty of enforcing it. This may be legislation deals with complex matters calling for expert knowledge and judgment.”[5]
- Aditya Bamzai writes, “But Chevron itself claimed provenance in a series of precedents stretching back to the Marshall Court that demonstrated that the Court had ‘long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.'"[4]
- Aditya Bamzai writes, “The perspective that Chevron’s origins date to the nineteenth century seems also to be a majority view among commentators, at least judging from the regular (though offhand) statements, even by critics of Chevron, conceding that there is a ‘long tradition of deference to agency interpretations.’”[4]
- Law professor Ann Woolhandler writes, “[T]he background assumption that the first hundred years were an age of judicial deference to agencies implicitly undergirds current claims that the executive agencies can more legitimately exercise delegated lawmaking power than the courts. Historically, however, the courts exercised significant lawmaking powers both under the common law and under nineteenth-century administrative law. The pre-ICC law tends to demonstrate the long pedigree of inelegant allocations of lawmaking authority between courts and agencies that persisted until the Supreme Court's decision in Chevron U.S.A. v. Natural Resources Defense Council transferred significant lawmaking authority from the courts.”[10]
- Henry Monaghan writes, "[W]hatever the logic of the Marbury argument or the wisdom of strong judicial control of administrative law-making, the Marshall court itself gave early sanction to deference principles. [...] Marbury is not mentioned in that opinion, nor is it mentioned in the other scattered deference opinions of the Marshall Court. As the nineteenth century wore on, and public administration became a larger and larger component of the American governmental system, judicial expressions of deference increased. Marbury proved no barrier to this development."[8]
- T.J. McCarrick writes in a law review article, “Chevron was premised on the across-the-board presumption that Congress delegates enforcement discretion to agencies when it legislates ambiguously, and that agencies—rather than courts— properly resolve statutory ambiguities in the course of policy administration. In other words, Chevron championed the role of the political branches in creating and executing law.”[6]
- McCarrick writes, “Critics of Chevron—and of bureaucracy more generally—are rightly concerned with centralization of power in administrative agencies. Their criticism, however, misses the mark. The text of the APA is far from clear, and certainly does not prohibit deference to agencies. And founding-era judicial practice cuts in Chevron’s favor. Early courts routinely deferred to executive statutory interpretations on the understanding that laws require exercises of discretion for implementation, which, in turn, qualify as an exertion of executive power under Article II. In short, Chevron has a remarkable practical and constitutional pedigree.”[6]
Claim: Chevron is a legitimate framework built on the tradition of deference in mandamus cases
This claim argues that the Chevron decision followed early Supreme Court precedent dealing with writs of mandamus. In those cases, courts would order executive officials to carry out ministerial duties, but not to take a specific action when the relevant laws allowed for executive discretion.
- Aditya Bamzai writes, “Judicial deference, on this view, can be understood as ‘in accord with the origins of federal-court judicial review.’ That is because, to borrow Justice Scalia’s words, ‘[j]udicial control of federal executive officers was principally exercised through the prerogative writ of mandamus’ before the enactment of general federal-question jurisdiction in 1875, and mandamus ‘generally would not issue unless the executive officer was acting plainly beyond the scope of his authority.’ Based on this history, statutory ambiguities should be ‘left to reasonable resolution by the Executive,’ as they ordinarily would have been when an Article III tribunal reviewed a writ of mandamus directed against an executive official. As Justice Douglas put the point, the ‘principle at stake’ in judicial deference cases ‘is no different than if mandamus were sought—a remedy long restricted, in the main, to situations where ministerial duties of a nondiscretionary nature are involved.’”[4]
- Bamzai writes that Scalia referenced this argument in his Mead dissent. “Justice Scalia refers to, and derives his view from, Jaffe’s observation that the standard for mandamus can ‘be taken to mean that if the applicable rule of law is disputable (in the opinion of the judge), then the court will not make an independent determination of the law upon which to base a command to the officer,’ which Jaffe analogizes to a deferential ‘theory of judicial review generally.’"[4]
- Bamzai writes, “the nature and scope of judicial review in cases brought using a writ of mandamus or other extraordinary writ—has been cited by Justices of the Supreme Court as a precursor to modern doctrines of deference and a possible doctrinal basis for Chevron.”[4]
- T.J. McCarrick writes, “Of course, not all actions are unreviewable. ‘Ministerial’ duties involve no delegation of discretion and ‘are not [subject] to the direction of the President.’ Lawsuits involving ministerial acts, therefore, do not ‘interfere[ ] . . . with the rights or duties of the executive.’ The discretionary ministerial distinction has deep roots in American jurisprudence. And it has been developed primarily in writ of mandamus cases. Revived, the discretionary-ministerial distinction offers a constitutional basis for Chevron deference. That is to say, it supports the claim that agency officials interpreting ambiguous statutes exercise executive power under Article II. Of course, not all agree. Some argue the discretionary-ministerial distinction stems from the form of relief requested. In other words, the nature of mandamus review put the rabbit in the hat, so to speak, in favor of the executive’s preferred construction. … In fact, Marbury originated the discretion-ministerial distinction that provides deference with its constitutional pedigree. Many forget that Marbury began by questioning judicial authority to review executive action, formulating what became known as the political question doctrine.”[6]
Claim: Deference is the law under the APA
According to this claim, the Administrative Procedure Act (APA) created a system of judicial review that allows courts to defer to agency interpretations of law or fact in different cases.
- Aditya Bamzai writes, “The APA, on this view, incorporated the approach of pre-1946 cases expressing principles of judicial deference and, thereby, incorporated a doctrine akin to Chevron.”[4]
- T.J. McCarrick writes, “The APA commands courts to interpret statutes. But it is far from clear that judges abdicate that duty in Chevron’s name. Under Chevron, courts determine de novo the existence or non-existence of a statutory ambiguity. And even then, an agency’s interpretation cannot exceed the bounds of the reasonable. Courts applying Chevron, therefore, do engage in statutory interpretation. And nothing in the APA requires more. To the contrary, APA standards of review lend support to Chevron’s framework. Under § 706, courts must “hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” That is Chevron with the steps reversed.”[6]
- McCarrick writes, “In any case, whatever their relationship, the standards provided in §706 simply codified longstanding judicial practice. That is, they 'restat[ed] the present law as to the scope of judicial review' in terms of 'general . . . principles.' If one of those principles was deference to executive interpretations of ambiguous statutes, Chevron can hardly be considered an abdication of judicial responsibility. And the precursor to the APA—the Report from the Attorney General’s Committee on Administrative Procedure—suggests deference was part and parcel of judicial review. It noted, 'where [a] statute is reasonably susceptible of more than one interpretation, the court may accept that of the administrative body . . . as the opinion of the body especially familiar with the problems dealt with by the statute and burdened with the duty of enforcing it.' If that rule of deference stems from the separation of powers, Chevron may even have a constitutional pedigree."[6]
Claim: United States Supreme Court precedents deferring to agency factual determinations led to deferring to legal determinations
This claim argues that the U.S. Supreme Court's longstanding practice of deferring to agencies on factual questions led the court to adopt agency interpretations of law involving agency expertise.
- Aditya Bamzai writes, “[T]he Court invoked longstanding precedents addressing judicial deference to agency factual determinations and analogized questions of law requiring agency expertise to questions of fact. In doing so, the Court drew on preexisting scholarship suggesting that a formal distinction between ‘law’ and ‘fact’ in administrative review was illusory. By embracing this legal-realist perspective on the law-fact distinction, and thereby blurring the line between factual determinations and legal questions, the Court incrementally expanded the domain of agency discretion in a manner that ultimately led to the Chevron doctrine.”[4]
- Bamzai writes, “In the time between the APA’s adoption and Chevron, courts relied interchangeably on cases applying the mandamus standard, cases applying the traditional contemporary and customary canons, and cases applying the 1940s approach breaking down the distinction between judicial review of questions of law and questions of fact.”[4]
Claim: Arbitrary-and-capricious review requires less of agencies than some judges believe
Arbitrary-or-capricious review refers to the way judges apply the Administrative Procedure Act (APA) to agency decisions to make sure that agencies follow proper regulatory procedures. The APA requires judges to invalidate agency actions they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[11] This claim argues that the APA has looser standards than some judges apply to agency decisionmaking.
- Jacob Gersen and Adrian Vermeule write, “[Rationality] is a much thinner notion than some commentators seem to think, [and] rational decisionmaking requires far less from agencies than lawyers tend to realize.”[3]
- Gersen and Vermeule write that Thin rationality review means that “agencies are (merely) obliged to make decisions on the basis of reasons. Second-or-higher order reasons may, in appropriate cases, satisfy that obligation. What is excluded by the arbitrary and capricious standard is genuinely ungrounded agency decisionmaking, in the sense that the agency cannot justify its action even as a response to the limits of reason.”[3]
- Gersen and Vermeule write, “In our positive formulation, the best interpretation of section 706(2)(A), and of rationality review, is simple indeed: agencies must act based on reasons. In this simple conception, the aim of section 706(2)(A) is to exclude agency action that rests on no reasons whatsoever, at any order of analysis— the core meaning of 'arbitrary and capricious.' The key difference between our conception and the hard look conception is that the former, unlike the latter, takes account of nonideal constraints on agency decisionmaking. It recognizes that limits of time, information, and resources may give agencies good second-order reasons to act inaccurately, nonrationally, or arbitrarily, in a first-order sense.”[3]
- Gersen and Vermeule argue that agencies normally win hard look review cases applying State Farm.[3] They write, “Current law is actually a mixed bag—far more so than one might think from reading administrative law textbooks, which typically suggest that State Farm inaugurated an era of stringent judicial review of agency decisionmaking for rationality. As we will see, that suggestion is flatly wrong at the level of the Supreme Court. At that level, agencies almost never lose. Indeed, the facts show that State Farm itself is an outlier. Starting in October Term 1982, when State Farm was decided, the Court has passed on the merits of arbitrariness challenges sixty-four times. Of those, agencies have lost arbitrary and capricious challenges only five times—a remarkable win-rate of 92 percent.”[3]
- Gersen and Vermeule write, “State Farm and Chevron are said to be two of the pillars of administrative law. Many others before us have noted that they are in some tension, with Chevron ushering in an era of deferential review of agency legal interpretation and State Farm ushering in an era of robust judicial review of agency policymaking. The historical reality, however, is actually quite the contrary. State Farm did not usher in an era of aggressive hard look review. In the Supreme Court, agencies virtually never lose so-called hard look cases, and while the lower-court practice is more heterogeneous, and includes highly intrusive outliers, State Farm review in practice is not systematically hard look.”[3]
- Gersen and Vermeule write, The D.C. Circuit decision in Business Roundtable (2011) is an outlier requiring elaborate cost-benefit analyses to pass arbitrary-or-capricious review.[3]
- Gersen and Vermeule argue that lack of ossification shows that searching hard look review is not being applied because agencies usually win in court.[3] They write, “If one believes that State Farm entails searching hard look review, then it simply stands to reason, as a matter of nearly inimitable logic, that ossification will result. Once that misguided assumption is relaxed, the fact that there is little evidence of ossification makes perfect sense. Arbitrariness review is like a legal phantom: it can scare, but rarely hurts. So long as agencies comply with some minimal rationality requirements, they usually win in litigation."[3]
- Gersen and Vermeule write, “Even in State Farm, the Court was careful to specifically deny that agencies have any obligation to 'consider all policy alternatives in reaching decision.' That denial has sometimes been forgotten by lower federal courts. At its worst, intrusive judicial review threatens to create an infinite regress, in which agencies have to be able to give reasons for suspending the search for optimal policies, reasons that require the very information whose absence is the reason for stopping in the first place.”[3]
See also
- Deference (administrative state)
- Chevron deference
- Skidmore deference
- Auer deference
- List of court cases relevant to judicial deference to administrative agencies
- List of legislation relevant to judicial deference to administrative agencies
- List of executive orders relevant to judicial deference to administrative agencies
- List of scholarly work pertaining to judicial deference to administrative agencies
- Scholarly work related to judicial deference to administrative agencies
- United States Supreme Court
- Administrative state
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Jonathan R. Siegel, "The Constitutional Case for Chevron Deference," Vanderbilt Law Review, Vol. 71 (2018)
- ↑ 2.0 2.1 Supreme Court of the United States (via Findlaw), Chevron U.S.A. v. Natural Res. Def. Council, decided June 25, 1984
- ↑ 3.00 3.01 3.02 3.03 3.04 3.05 3.06 3.07 3.08 3.09 3.10 3.11 3.12 Jacob Gersen and Adrian Vermeule, "Thin Rationality Review," Michigan Law Review, Vol. 114 (2016)
- ↑ 4.00 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11 Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
- ↑ 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 5.16 Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
- ↑ 7.0 7.1 7.2 7.3 7.4 Columbia Law Review, Law and Administration after Chevron," 1990
- ↑ 8.0 8.1 Henry Paul Monaghan, "Marbury and the Administrative State," Columbia Law Review, Vol. 83, No.1 (January 1983)
- ↑ Cornell Law School LII, "Mandamus," accessed March 12, 2019
- ↑ Ann Woolhandler, "Judicial Deference to Administrative Action—A Revisionist History," Administrative Law Review, Vol. 43, No. 2 (Spring 1991)
- ↑ Legal Information Institute, "5 U.S. Code § 706. Scope of review," accessed June 10, 2019
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