Email: Learning Journey: Deference Day 2

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  Today we examine key arguments that support and oppose the application of deference.

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Welcome to the second installment of Ballotpedia’s Learning Journey on deference. Today we examine key arguments that support and oppose the application of deference. Let’s get started! Arguments about the Application of Deference Deference and agencies  Supporters of deference claim that deference prevents non-expert judges from interfering with agency policy, which is crafted by staff who are presumed to be experts in their field. Supporters also claim that deference grants agencies more flexibility to solve problems; that chaos would ensue if courts were less deferential. Opponents argue that deference contributes to the expansion of agency powers by concentrating unchecked lawmaking power in agencies and facilitating what D.C. Circuit Judge Neomi Rao refers to as administrative collusion, which rewards agencies for working with individual members of Congress to further the expansion of agency powers through delegation. Deference and delegation Supporters of deference maintain that courts should defer to agency interpretations of unclear statutes because Congress has delegated the authority to interpret and implement the law to agencies. Opponents of deference argue that deference violates the nondelegation doctrine, creates a bias in favor of agencies, and prevents judicial review of agency actions. Deference and the separation of powers Deference supporters say that the separation of powers—the distribution of government authority between the three branches—requires deference when the resolution of ambiguous statutes requires policy judgments. Since policy judgments are political questions, the argument follows, they must be resolved by the political branches (Congress and the president) rather than the courts. Deference opponents argue that deference violates the separation of powers by preventing the judicial branch from exercising independent judgment when interpreting statutes, transferring judicial power to the executive branch, and ignoring the judicial obligation to serve as a check on the political branches.     Read On: Separation of Powers   Deference and legal precedents Deference supporters contend that deference principles are supported by legal precedents demonstrating that courts have long accepted reasonable executive interpretations of statutes. Supporters of this argument also claim that the Administrative Procedure Act (APA), which governs agency procedures, allows for deference as part of judicial review. Opponents argue that deference breaks with both United States Supreme Court precedent, which favored de novo judicial review, and the APA, which calls for courts to decide relevant questions of law.   What's next? Next, we’ll examine deference approaches at the state level. We’ll also take a look at the future of deference and potential reform proposals.   Review Taxonomy of arguments about judicial deference Separation of powers