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"Judicial Deference to Administrative Action—A Revisionist History" by Ann Woolhandler (1991)

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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.

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Judicial Deference to Administrative Action—A Revisionist History (1991), a law review article by Ann Woolhandler, is about how 19th century courts gave varying amounts of deference to agency decisions because they wanted to promote commerce and they had a limited view of federal agency duties.[1] Woolhandler disagrees with scholars who claim that the 19th century U.S. Supreme Court almost always deferred to administrative actions.[1] She also argues that there might not be a simple and ideal balance of power between agencies and courts on which to build administrative law.[1] Throughout the paper, Woolhandler uses three forms of judicial review to analyze how deferential the court was in different situations.

HIGHLIGHTS
  • Authors: Ann Woolhandler
  • Source: Administrative Law Review, Volume 43, No. 2, Spring 1991
  • Abstract: Woolhandler provided this summary in the introduction to her article:[1]


    "This article is intended to shed further light on this dark age of administrative law, and to take issue with generalizations that other commentators have made about it. This article uses three models of judicial review, described in part I, to analyze nineteenth-century administrative law and to show coherency in the forms of review that cut across individual subject matter areas. With the aid of the three models, the article will take issue with the prevailing view of the nineteenth century as a monolithic age of judicial deference to administrative decisionmaking. It will show that in the nineteenth century, as in the twentieth, changing political and economic theory altered the level of judicial review over time."[1]

    • Author

    Ann Woolhandler

    Ann Woolhandler became a faculty member of the University of Virginia School of Law in January 2002.[2] She previously taught law at Tulane University, Harvard, Boston University, and the University of Cincinnati.[2]

    The following is a summary of Woolhandler's education:[2]

    • J.D., Harvard Law School, Cambridge, Mass., 1978
    • B.A., Yale University, New Haven, Conn., 1975

    Introduction

    See also: Judicial deference

    Woohandler begins her article arguing that her historical survey has practical consequences for contemporary administrative law cases. She summarizes the point in the following way:[1]

    “ The conclusions suggested, while historically based, are of more than antiquarian interest. The commonly held belief that the right/privilege distinction explains nineteenth-century deviations from a presumptively deferential style of judicial review of administrative action lends support to those who today would water down due process protections in cases involving dispensation of government benefits. More importantly, the 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.[1][3] ”

    She argues that courts exercised some delegated lawmaking power during the 19th century and up until the U.S. Supreme Court "transferred significant lawmaking authority from the courts to the agencies" in Chevron v. Natural Resources Defense Council (1984).[1]

    Three Models of Judicial Review

    Woolhandler describes three potential approaches to judicial review of actions taken by the other branches of government: de novo, res judicata, and error.[1] She uses these models throughout her article to examine different court precedents to see how courts chose whether to defer to agency decisions.

    1) De novo review: Under this model, Woolhandler argues that "courts accord no finality to administrative determinations of law or fact. Instead, they redetermine all issues of law and fact that executive officers have previously determined."[1] In addition, she argues that power flows to judges and juries who review administrative actions in a de novo system.[1]
    2) Res judicata: Under this model, Woolhandler argues that "courts accord finality to the decisions of administrative officers on issues of both law and fact."[1] She adds, "[T]he judiciary treats determinations of the executive branch as it would treat decisions of a court in a separate court system. Judicial review under a res judicata model thus focuses on "jurisdictional" issues; if the original decision maker had jurisdiction to decide the issue, the earlier decision is given conclusive effect and is upheld. Because courts accord increased deference to executive decisions under this res judicata model, more fact finding and lawmaking power rests in the executive than under the de novo model."[1]
    3) Error review: Woolhandler argues that this model is an approximate midpoint between the de novo and res judicata systems.[1] With an error review system, reviewing courts act "acts as an ordinary appellate court would act toward a trial court. A court would accord deference to agency fact-findings under the error model, but would conduct de novo review of issues of law."[1]

    Conclusion

    After examining several cases throughout the 19th century, Woolhandler concludes that changing legal, political, and economic trends led courts to change how much deference to grant agency decisions.[1] She argues that "the judicial desire to promote commerce was also a significant and probably more determinative" factor for courts deciding whether to defer to agency decisions than the question of whether agencies were administering privileges or infringing upon rights.[1]

    See also

    Court cases:

    Full text

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 Administrative Law Review, "Judicial Deference to Administrative Action," 1991
    2. ↑ 2.0 2.1 2.2 University of Virginia School of Law, "Ann Woolhandler," accessed May 29, 2019
    3. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
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