Arguments in favor of judicial deference: Deference adheres to legal practices and precedent
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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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This page captures one of the main arguments that have been advanced in favor of 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]
There are six main types of argument in favor of judicial deference:
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). 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.[6]
Claim: Chevron (1984) did not make new law
- Antonin Scalia argued that the Chevron doctrine didn’t make new law. 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.”[7]
- Scalia cited the Attorney General’s Committee on Administrative Procedure from 1941 on deferring to agency expertise, “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.”[7]
- 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.'"[8]
- 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.’”[8]
- 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.”[9]
- 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."[10]
- T.J. McCarrick writes, “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.”[11]
- 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.”[11]
Claim: Chevron is a legitimate framework built on the tradition of deference in mandamus cases
- 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.’”[8]
- 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.’"[8]
- 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.”[8]
- 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.”[11]
Claim: Deference is the law under the APA
- 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.”[8]
- 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.”[11]
- 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."[11]
Claim: The Court used precedents about deferring to agency factual determinations to build toward deferring to legal determinations
- 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.”[8]
- 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.”[8]
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."[12] 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.”[13]
- 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.”[13]
- 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.”[13]
- Gersen and Vermeule argue that agencies normally win hard look review cases applying State Farm. 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.”[13]
- 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.”[13]
- 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.[13]
- Gersen and Vermeule argue that lack of ossification shows that searching hard look review is not being applied because agencies usually win in court. 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."[13]
- 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.”[13]
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
- ↑ 7.0 7.1 Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)
- ↑ 8.0 8.1 8.2 8.3 8.4 8.5 8.6 8.7 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)
- ↑ Henry Paul Monaghan, "Marbury and the Administrative State," Columbia Law Review, Vol. 83, No.1 (January 1983)
- ↑ 11.0 11.1 11.2 11.3 11.4 T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
- ↑ Legal Information Institute, "5 U.S. Code § 706. Scope of review," accessed June 10, 2019
- ↑ 13.0 13.1 13.2 13.3 13.4 13.5 13.6 13.7 Jacob Gersen and Adrian Vermeule, "Thin Rationality Review," Michigan Law Review, Vol. 114 (2016)
