Email: Learning Journey: Deference Day 4

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  Today, we’ll review the highlights of our Deference Learning Journey.

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Congratulations! We’ve arrived at the final day of our Learning Journey on deference. Let’s review the highlights! What is deference? The term deference refers to the administrative law principle by which courts are expected to defer to an agency’s interpretation of a statute or regulation when the legislative language is silent or ambiguous. Deference is widely regarded as a major factor in the expansion of federal agency powers.  Types of deference There are three main deference doctrines applied by federal courts: Chevron deference: A federal court defers to an agency’s reasonable interpretation of an ambiguous statute. Skidmore deference: A federal court yields to a federal agency's interpretation of a statute administered by the agency according to the agency's ability to demonstrate persuasive reasoning. Auer deference: A federal court yields to an agency's reasonable interpretation of an ambiguous regulation that the agency itself has promulgated.     Deference arguments The next leg of our Learning Journey examined the following key arguments from both supporters and opponents of deference: Deference and agencies: Supporters of deference claim that deference prevents non-expert judges from interfering with expert agency policy while opponents argue that deference contributes to the expansion of agency powers by concentrating unchecked lawmaking power in agencies and facilitating administrative collusion. Deference and delegation: Supporters of deference maintain that courts should defer to agency interpretations of congressionally delegated statutes while opponents 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 claim that the separation of powers requires deference when the resolution of ambiguous statutes requires policy judgments while opponents maintain that deference violates the separation of powers by preventing the judicial branch from exercising independent judgment, transferring judicial power to the executive branch, and ignoring the judicial obligation to serve as a check on the political branches.  Deference and legal precedents: Deference supporters contend that deference principles are supported by legal precedents and APA provisions while opponents argue that deference breaks with both United States Supreme Court precedent and the APA.      Deference in the states Thirty-six states have implemented forms of judicial deference to state administrative agencies similar to the federal deference doctrines. Five states (Wisconsin, Florida, Arizona, Mississippi, and Michigan) have taken steps to limit or eliminate deference.   The future of deference The United States Supreme Court has signaled a willingness to reexamine the scope of deference, contributing to a new period of uncertainty surrounding Chevron deference. Deference reform proposals Administrative law scholars and federal government actors have proposed a variety of methods to reform deference. Legislative proposals would statutorily limit or eliminate deference, judicial methods would primarily limit the scope of deference doctrines, and an executive approach would encourage the use of cost-benefit analysis in agency rulemaking.   Thank You! Thank you for joining us on this Learning Journey! We hope that you will join us on other Learning Journeys to broaden your knowledge about the administrative state.