Arguments in favor of judicial deference: Deference respects expertise
| 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 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
- Law professor Aditya Bamzai cited James Landis’s argument in The Administrative Process saying that agencies would be better than courts at answering specialized questions of law. “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.”[6]
- 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).”[7] 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.[8]
- Law professors Jacob Gersen and Adrian Vermeule argued in favor of relying on Baltimore Gas as precedent more than State Farm. They say Baltimore Gas, quoting Vermont Yankee, is more deferential to agencies and more consistent with case-law than State Farm. They write, “[A] reviewing court must remember that the Commission 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.”[9]
Claim: Agencies have the discretion to consider relevant factors during decision making
- 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.”[9]
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
- ↑ Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
- ↑ Jonathan R. Siegel, "The Constitutional Case for Chevron Deference," Vanderbilt Law Review, Vol. 71 (2018)
- ↑ Supreme Court of the United States (via Findlaw), Chevron U.S.A. v. Natural Res. Def. Council, decided June 25, 1984
- ↑ 9.0 9.1 Jacob Gersen and Adrian Vermeule, "Thin Rationality Review," Michigan Law Review, Vol. 114 (2016)
