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Arguments against judicial deference: Deference is the product of bad jurisprudence
| 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 control |
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This page captures the arguments that judicial deference is the product of bad jurisprudence, one of the main arguments that has been advanced in opposition to judicial deference as a doctrine.
Deference occurs when a federal court defers to an agency’s interpretation of (1) a statute Congress authorized the agency to administer or (2) the agency’s own regulations. The U.S. Supreme Court developed multiple deference doctrines throughout the 20th century, including Chevron deference, Skidmore deference, and Auer deference.[1][2]
Since 2015, the United States Supreme Court has reconsidered aspects of judicial deference, refining Chevron deference, limiting its application, and recognizing exceptions, according to administrative law scholar Michael Kagan. In Kisor v. Wilkie (2019), the court upheld Auer deference but narrowed its scope, reflecting what Kagan described as a "period of uncertainty" for judicial deference.[3][4]
On June 28, 2024, the Supreme Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, ruling that federal courts may not defer to an agency’s interpretation of an ambiguous statute.[5]
Deference is the product of bad jurisprudence
This argument says that judicial deference to administrative agencies comes from judges applying an improper methodology to legal and regulatory interpretation. The following claim develops the argument.
Claim: Nineteenth-century court respect for customary interpretation was not the same as Chevron deference
- Aditya Bamzai writes, “Although Chevron can claim an analog of sorts in early nineteenth-century cases about interpretive methodology, those cases addressed the ‘respect’ that was due to executive interpretation because of the interpretation’s nature—specifically, its articulation contemporaneous with the enactment of the controlling legal text or its ability to demonstrate a customary practice under that text.”[6]
- Bamzai writes, “[T]he prevailing interpretive methodology of nineteenth-century American courts was not a form of judicial deference, as it has come to be understood in the post-Chevron era. Under the traditional interpretive approach, American courts ‘respected’ longstanding and contemporaneous executive interpretations of law as part of a practice of deferring to longstanding and contemporaneous interpretation generally. It was the pedigree and contemporaneity of the interpretation, in other words, that prompted ‘respect’; the fact that the interpretation had been articulated by an actor within the executive branch was relevant, but incidental.”[6]
- Bamzai writes that Edward’s Lessee deference was not the same as Chevron. He states, “The clearest sign that Edwards’ Lessee announced a doctrine of deference to contemporaneous and customary interpretations, not a doctrine of deference to executive interpretations, is that the principle in the case was repeatedly invoked to reject the executive branch’s changed construction of a statute and to require that statutory interpretation be consistent and uniform—and, hence, customary or contemporaneous with enactment.”[6]
Footnotes
- ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
- ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
- ↑ UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017
- ↑ SCOTUSblog, "Kisor v. Wilkie," accessed December 10, 2018
- ↑ SCOTUSblog, "Loper Bright Enterprises v. Raimondo," accessed July 3, 2024
- ↑ 6.0 6.1 6.2 Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
