Arguments against judicial deference: Deference violates legal practices and precedent
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This page captures the arguments that judicial deference violates legal practices and precedent, 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 violates legal practices and precedent
This argument against judicial deference to administrative agencies says that Chevron and similar cases break with U.S. Supreme Court precedent and the Administrative Procedure Act (APA). The question of how much respect courts should give to agency interpretations of statutes appeared long before 1984, when the court decided Chevron. Some defenders of deference 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. According to this argument, defenders of deference misinterpret the history of writs of mandamus.[6]
The following claims support the argument that judicial deference to administrative agencies is bad because it violates legal practices and U.S. Supreme Court precedent.
Claim: Chevron (1984) was a break from the legal practice of the early American Republic
- Aditya Bamzai argued that Marbury v. Madison seems to contradict Chevron in its conception of the role of the judiciary. He writes, “At first blush, the concept may appear inconsistent with Chief Justice Marshall’s assertion, in Marbury v. Madison, that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is’ —a tension that has prompted some to characterize Chevron as the ‘counter-Marbury’ of the administrative state.”[7]
- Bamzai writes that Chevron was a break with precedent. “That perspective accords with the view, expressed by Ann Woolhandler, that ‘[t]he de novo model in its various manifestations, which left the final say to the judiciary rather than the executive, was the predominant form of judicial review of executive action in the early Republic.’ Chevron (or at least, its twentieth-century precursors), on this perspective, is not an outgrowth of, but rather a break from, what came before it.”[7]
- 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.”[8]
- Law professor Jerry L. Mashaw writes, “The contributions of the Jacksonian era to modern administrative law are thus to be found largely in the understandings that are reflected in the perennial competition between congresses and presidents for political control of administration, and in the internal rules, practices, and systems of the administrative agencies and departments themselves. Not much administrative law that reflects our contemporary understandings was to be found in the courts. Because that is where administrative lawyers tend to look for it, we have conventionally taken the view that none existed.”[9]
- Law professor Cass R. Sunstein writes, “Before 1984, the law thus reflected a puzzling and relatively ad hoc set of doctrines about when courts should defer to administrative interpretations of law. All this was changed by Chevron.”[10]
- Law professor Thomas Merrill writes, “Prior to 1984, the Supreme Court had no unifying theory for determining when to defer to agency interpretations of statutes. The approach was instead pragmatic and contextual. One feature of the Court's practice was that deference could range over a spectrum from ‘great’ to ‘some’ to ‘little’ (although no attempt was ever made to calibrate different degrees of deference with any precision). A particularly common approach was to cite the views of those charged with administration of the statute as one of several reasons for adopting a particular construction. Thus, the Court might embrace a particular interpretation (1) because it was supported by the language of the text, (2) because it was consistent with the legislative history, and (3) because it was the longstanding construction of the administrative agency. To be sure, there were also decisions at the polar extremes during this era-either ignoring the agency view or treating it as virtually dispositive. But in practice, deference existed along a sliding scale, bridging these outer limits.”[11]
- Bamzai cited Judge Henry Friendly in Pittston Stevedoring Corp. v. Dellaventura saying, “it was ‘time to recognize . . . two lines of Supreme Court decisions on th[e] subject’ of judicial deference ‘which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand.’ In his opinion, Judge Friendly contrasted a series of Supreme Court cases ‘supporting the view that great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis’ with a separate and ‘impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term.’"[7]
- Bamzai cited Alexander Hamilton in The Federalist about how the courts were responsible for interpreting laws and not Congress, “Hamilton considered, but rejected, the possibility that the political branches would fill in the ambiguities in the Constitution’s text. He addressed the likelihood that the ‘[l]egislative body [would] themselves [be] the constitutional judges of their own powers,’ making the ‘construction they put upon them . . . conclusive upon the other departments.’ He rejected that view as not being ‘the natural presumption, where it is not to be collected from any particular provisions in the Constitution.' In light of the Constitution’s separation of powers, Hamilton noted, it would be 'far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority,' with '[t]he interpretation of the laws [as] the proper and peculiar province of the courts.'"[7]
- Bamzai cited Alexander Hamilton and James Madison in The Federalist saying that they thought constitutional ambiguity would diminish over time as case law built up. “[B]oth Madison and Hamilton adopted the proposed solutions to the problem of legal ambiguity advocated by seventeenth- and eighteenth-century legal theorists. They stressed, in other words, the role of custom and contemporaneity in construing those parts of the Constitution’s text that may otherwise be susceptible to a range of permissible interpretations. In the words of Hamilton, customary practice that developed over time would ‘liquidate the meaning’ of the Federal Constitution. Or as Madison put it, the meaning of constitutional provisions would be ‘liquidated and ascertained by a series of particular discussions and adjudications.’”[7]
- Bamzai writes “But the proposition that Chevron has a basis in traditional interpretive methodology, the views of the Framers of the United States Constitution, or section 706 of the Administrative Procedure Act should be abandoned—that proposition is a fiction. To be sure, the canons of construction with which the Framers of the Constitution and the lawyers of the nineteenth century would have been familiar—those privileging customary and contemporary interpretations of legal texts—use terminology that bears a passing resemblance to the words now used to articulate the concept of Chevron deference. But those canons were far removed from Chevron, both in spirit and in application. The true story of the origins of judicial deference is that the current doctrine, as an interpretive theory, originated much later—during the twentieth century—out of a desire to abandon the formalism of the traditional framework.”[7]
Claim: Precedents establishing the scope of the writ of mandamus cut against the Chevron doctrine
- Aditya Bamzai writes, “Nor was nineteenth-century mandamus practice based on any interpretive methodology that required judicial deference to the executive qua executive. While the modern reader may hear echoes of Chevron in mandamus—because the mandamus standard precluded judicial intervention when an executive official engaged in an ‘executive duty’ (including statutory interpretation) that required the exercise of judgment and discretion—the analogy is mistaken.”[7]
- Bamzai writes, “[T]he nineteenth-century cases addressing the scope of the mandamus writ support the contrary proposition. Those cases distinguished between, on the one hand, the standard for obtaining the writ and, on the other, the appropriate interpretive methodology that would be applied in cases not brought using the writ.”[7]
- Bamzai cited Decatur v. Paulding (1840) to argue that mandamus precedent did not establish Chevron-style judicial deference. He writes, “Chief Justice Taney’s opinion made clear, however, that the standard for mandamus applied in Decatur was distinct from the appropriate methodology for interpreting statutes in non-mandamus cases: ‘If a suit should come before this Court, which involved the construction of any of these laws,’ the Chief Justice reasoned, ‘the Court certainly would not be bound to adopt the construction given by the head of a department.’ To the contrary, in such cases, the Justices would be bound to determine whether the executive official’s ‘decision’ was ‘wrong’ and ‘of course, so pronounce their judgment.’"[7]
- Bamzai argued that the mandamus standard looked like Chevron deference because of the kind of relief requested, not as the result of interpretive theory. He writes, “The critical point of the foregoing analysis is that because federal courts lacked general federal-question jurisdiction before 1875, many statutory questions could be resolved only in the context of a mandamus action brought against an executive official. In mandamus proceedings, courts applied the mandamus standard. Following Decatur, the mandamus standard afforded great leeway to executive discretion in interpreting legal text—akin, in some respects, to the zone of interpretive discretion under the modern Chevron doctrine. But application of the mandamus standard was a consequence solely of the form of relief requested, not the consequence of the interpretive theory used. Therefore, a change in positive law on the cause of action would necessitate the abandonment of the mandamus standard. The Court’s use of de novo review in non-mandamus cases made that clear, as did Chief Justice Taney’s opinion in Decatur itself. As the Chief Justice explained, '[T]he Court certainly would not be bound to adopt the construction given by the head of a department' in non-mandamus cases over which the federal courts had jurisdiction, but rather would have the 'duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.' Thus, when the general federal-question-jurisdiction statute in 1875 gradually eliminated the need to rely on mandamus jurisdiction to challenge executive action, the mandamus standard and Decatur line of cases became less relevant.”[7]
- Christopher J. Walker summarizes Bamzai to question Scalia’s use of precedent to defend Chevron. He writes, “Bamzai concludes that Chevron deference finds no historical support from nineteenth-century mandamus doctrine and practice: ‘Those cases distinguished between, on the one hand, the standard for obtaining the writ and, on the other, the appropriate interpretive methodology that would be applied in cases not brought using the writ.’ This finding is significant because it suggests that Justice Scalia may have been mistaken in relying on those cases as historical justification for Chevron deference in his Mead dissent and Mortgage Bankers concurrence.”[12]
Claim: The APA was created with the idea that questions of law would be subject to de novo judicial review and cabin judicial deference
- Antonin Scalia argued in a speech that one reason the APA exempts interpretive rules from notice-and-comment procedures is that the Senate believed those interpretations were subject to plenary judicial review. He says, ‘[...] one provision of the Administrative Procedure Act (APA) itself seems to have been based upon the quite mistaken assumption that questions of law would always be decided de novo by the courts.” Scalia said that assumption was untrue by 1989.[13]
- Aditya Bamzai writes that Congress passed the “APA in 1946 in part to stop this deviation from the traditional interpretive rules and to recapture the interpretive methodology that prevailed before the Court’s experimentation with the law-fact distinction during the 1940s. The APA’s text, drafting history, and early scholarly interpretations all point in this direction: they suggest that Congress sought to cabin the discretion that the Court had recently granted administrative agencies. But the APA’s text and drafting history were quickly forgotten.”[7]
- Bamzai writes, “Against the backdrop of the historical development of the law of judicial deference, however, the meaning of section 706 is easier to discern. The most natural reading of section 706—one that has, to my knowledge, heretofore escaped scholarly or judicial attention—is that the APA’s judicial review provision adopted the traditional interpretive methodology that had prevailed from the beginning of the Republic until the 1940s and, thereby, incorporated the customary-and-contemporary canons of construction. In other words, when Congress enacted the APA, it did in fact incorporate traditional background rules of statutory construction. It did not, however, incorporate the rule that came to be known as Chevron deference, because that was not (at the time) the traditional background rule of statutory construction. Under the traditional approach, a court would ‘respect’—or, to use modern parlance, ‘defer to’—an agency’s interpretation of a statute if and only if that interpretation reflected a customary or contemporaneous practice under the statute.”[7]
- Bamzai writes, “Congress specified the proper scope of judicial review of executive legal interpretations when it provided in section 706 of the APA that a ‘reviewing court shall decide all relevant questions of law’ and ‘interpret constitutional and statutory provisions.’ The canon of construction that Chevron announced can be justified only if it is an appropriate gloss on Congress’s articulation of the proper standard of review in section 706 of the APA.”[7]
- Bamzai cited Antonin Scalia from Perez (2015) against Auer deference. He writes, “More recently, in a separate concurrence in Perez v. Mortgage Bankers Ass’n, Justice Scalia observed that the APA ‘contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations’ and that the Court’s ‘elaborate law of deference to agencies’ interpretations of statutes and regulations’ was ‘[h]eedless of the original design of’ section 706.”[7]
- T.J. McCarrick writes, “Textualist and originalist critiques of administrative deference largely rest on the following rationales: (1) Chevron flatly contradicts the plain text of the Administrative Procedure Act (APA), which empowers courts—not agencies—to interpret statutory provisions; and (2) Chevron violates the separation of powers as originally understood.”[14]
Claim: Deference abandons a legal-interpretive tradition that went back to 17th-Century English courts
- Aditya Bamzai argued, “But the smaller size and dissimilar ambitions of the seventeenth-century English state did not eliminate the need for English judges to interpret ambiguous legal text. Rather than adopting a Chevron-like framework, however, judges adhered to customary canons of construction in the face of statutory ambiguity. Two of those canons—the contemporanea expositio [contemporary exposition] and interpres consuetudo [consistent interpretation]—were central to the development of judicial deference.”[7]
Claim: The use of Chevron deference to defer to an agency’s informal adjudication procedures denies due process
Supporters of increased due process protections in agency adjudication claim that judicial deference to an agency's interpretation of the adjudication procedures it is required to follow is not a proper exercise of deference. Agencies generally seek out informal adjudication procedures because they are less stringent than formal adjudication procedures, according to this claim. Supporters claim that judicial deference to such interpretations further weakens due process protections for individuals.
- Administrative law scholar William Funk described this claim in his 2017 article "Slip Slidin' Away–The Erosion of APA Adjudication." Funk argued that Chevron deference is applied incorrectly when it is used to defer to an agency's interpretation of its adjudication requirements:
- “In Chemical Waste Management, Inc. v. EPA, the D.C. Circuit accepted EPA’s argument that an APA adjudication was not necessary before issuing certain corrective action orders under 42 U.S.C. § 6928(h), notwithstanding that the statute required a 'public hearing.' EPA maintained that this provision was ambiguous as to what sort of procedure should be used in the hearing, and that its interpretation that an APA adjudication was not required was reasonable. … As this author and others have commented, applying Chevron to the question whether an adjudication is required to follow the APA procedures is an incorrect application of Chevron.”[15]
- Funk claimed that agencies seek to use informal adjudication whenever possible and judicial deference to such decisions allows agencies to further erode individual due process protections:
- “Nevertheless, the use of Chevron appears to have become the dominant judicial approach to discerning when an APA adjudication is required, with only the Ninth Circuit still outstanding. Of course, agencies almost always will seek non-APA adjudications if given the opportunity, and the result is a further erosion of APA adjudications.”[15]
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
- ↑ Cornell Law School LII, "Mandamus," accessed March 12, 2019
- ↑ 7.00 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 7.11 7.12 7.13 7.14 Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
- ↑ Ann Woolhandler, "Judicial Deference to Administrative Action—A Revisionist History," Administrative Law Review, Vol. 43, No. 2 (Spring 1991)
- ↑ Jerry Mashaw, "Administration and “The Democracy”: Administrative Law from Jackson to Lincoln, 1829-1861," The Yale Law Journal, Vol. 117, No. 8 (June 2008)
- ↑ Cass R. Sunstein, "Law and Administration after Chevron," Columbia Law Review, Vol. 90, No. 8 (December 1990)
- ↑ Thomas Merrill, "Judicial Deference to Executive Precedent," The Yale Law Journal, Vol. 101 (1992)
- ↑ Christopher J. Walker, "Attacking Auer and Chevron Deference: A Literature Review," The Georgetown Journal of Law & Public Policy, Vol. 16 (2018)
- ↑ Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)
- ↑ T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
- ↑ 15.0 15.1 Penn State Law Review, "Slip Slidin' Away—The Erosion of APA Adjudication," 2017
