Judicial Deference Introduction Video

Judicial Deference:

Navigate through this content:

• Syllabus/Course Contents
• Video: Introduction to Judicial Deference
• Reading 1: Cynthia R. Farina, "Statutory Interpretation and the Balance of Power in the Administrative State"
  • Link to the Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Reading 2: Jonathan R. Siegel, "The Constitutional Case for Chevron Deference"
  • Link to the Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Reading 3: Michael Kagan, "Loud and Soft Anti-Chevron Decisions"
  • Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Expert Interview: Kent Barnett
• Expert Interview: Adam White
• Expert Q and A
• Further Reading

Introduction to Judicial Deference

Transcript:

Hi, my name is Caitlin Styrsky, I’m a staff writer with Ballotpedia’s Administrative State Team, and I’ll be presenting the videos on judicial deference.

The term deference refers to the administrative law principle by which courts are expected to defer to an administrative 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 administrative agency powers. Deference applies in cases of judicial review, in other words when a plaintiff accuses an agency of unlawful action. In such cases, the court must decide whether the agency action in question was authorized.

Since Congress often passes broad legislation that requires agencies to fill in the details of rulemaking and enforcement, the degree of agency interpretation is a direct function of lawmakers’ imprecision in crafting statutory language. The United States Supreme Court has developed several forms of deference in reviewing agency actions. The three most common forms of deference include Chevron deference, Skidmore deference, and Auer deference.

Under Chevron deference, courts are expected to refrain from imposing their own statutory interpretation unless the agency’s interpretation is determined to be unreasonable.

The Skidmore doctrine applies when 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. Skidmore deference allows a federal court to determine the appropriate level of deference for each case based on the agency's ability to support its position.

Lastly, a federal court applies Auer deference, also known as Seminole Rock deference, when it yields to an agency's interpretation of an ambiguous regulation that the agency itself has promulgated. In order for a court to apply Auer deference, the underlying statute must be unclear and the agency's interpretation must be deemed reasonable.

Though deference is often applied as a standard principle of judicial review, there are both supporters and opponents of its premise.

For example, deference supporters 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. Moreover, deference supporters 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. Finally, 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.

The debate surrounding judicial deference sheds light on the doctrine’s uncertain future. Chevron deference, in particular, has been seen as "entering a period of uncertainty, after long seeming to enjoy consensus support on the Court,” according to administrative law scholar Michael Kagan. What has emerged since 2015, according to Kagan, has been a period "in which it seems that the Court may be more willing to explicitly refine the doctrine, to limit its application in certain ways, and to articulate new exceptions."