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Judicial deference: a timeline

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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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The timeline below identifies key events in the development of judicial deference and the evolving opinions of scholars, judges, and lawmakers regarding its application.

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]

For more information about judicial deference at the state level, click here.

Timeline

The following timeline identifies a selection of events and court cases that have influenced judicial deference:

  • 1803: Supreme Court states that judicial duty is to "say what the law is"
In Marbury v. Madison, the United States Supreme Court stated, "It is emphatically the province and the duty of the judicial department to say what the law is."[6]
  • 1827: Supreme Court grants respect to contemporaneous constructions of ambiguous statutes
In Edward’s Lessee v. Darby, the United States Supreme Court held that respect is due to the contemporaneous construction of an ambiguous statute. The court stated, "[I]n the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect."[7]
  • 1879: Supreme Court reaffirms respect for contemporaneous constructions of ambiguous statutes
In The City of Panama, the United States Supreme Court held that the contemporaneous construction of the statute is entitled to great respect, especially when the construction has prevailed for a long time and a different construction would impair vested rights. The court stated, "The rule is universal that the contemporaneous construction of such a statute is entitled to great respect."[7]
  • 1890: Supreme Court holds that agency constructions of statutes are not binding on the courts
In Merritt v. Cameron, the United States Supreme Court held that an agency's construction of an ambiguous statute is not binding on the courts unless the construction has been in force for a long time. The court stated, "In case of a doubtful and ambiguous law the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect, and should not be disregarded without the most cogent and persuasive reasons."[7]
  • 1904: Supreme Court expresses reluctance to interfere with administrative discretion
In Bates & Guild Co. v. Payne, the United States Supreme Court held that administrative discretion should only be interfered with if the court is of the opinion that the agency acted in error. The court held that agency action carried a strong presumption of correctness. In his dissent, Justice Harlan accused the majority of overthrowing the settled principle that courts respect the established practice of an executive department unless the practice comes from a construction that is obviously wrong.[7]
  • 1936: Supreme Court defers to executive discretion concerning foreign affairs and national security
In United States v. Curtiss-Wright Export Corporation, the United States Supreme Court granted a "degree of discretion and freedom from statutory restriction [in the field of foreign affairs] which would not be admissible were domestic affairs alone involved." The ruling gave rise to what administrative law scholars William Eskridge and Lauren Baer described as Curtiss-Wright deference, in which the court defers to executive interpretations concerning foreign affairs and national security.[8]
  • 1941: Supreme Court respects delegation of authority to administrative agency
In Gray v. Powell, the United States Supreme Court held that Congress delegated the function of interpreting a statutory term to agency experts. The court stated that it would respect the delegation and not interfere with the administrative conclusion.[7]
  • 1944: Supreme Court holds that agency legal interpretations are not controlling
In Skidmore v. Swift & Co., the United States Supreme Court held that agency legal interpretations are not controlling on courts but are a body of experience and informed judgment that is a source of guidance. The court held that the weight of agency interpretation depended on thorough consideration of the issue, valid reasoning, consistency with other agency pronouncements, and other factors that are persuasive even if not controlling. The case was the predecessor for Skidmore deference, developed in 2000.[7]
  • 1945: Supreme Court defers to agency interpretations of ambiguous regulations
See also: Seminole Rock deference
In Bowles v. Seminole Rock & Sand Co., the United States Supreme Court established a judicial deference regime known as Seminole Rock deference, in which a federal court defers to an administrative agency's interpretation of an ambiguous regulation that the agency administers.[7]
  • 1973: Supreme Court defers to agency interpretations that are consistent with statute
In BETH ISRAEL HOSPITAL v. NATIONAL LABOR RELATIONS BOARD (1978), the United States Supreme Court developed a deference principle that administrative law scholars William Eskridge and Lauren Baer described as Beth Israel deference—a test permitting reasonable agency interpretations that are consistent with the governing statute.[8]
  • 1978: Supreme Court limits judicial review to an agency's success or failure to conform to established procedures
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, the United States Supreme Court held that judicial review could only concern an agency's success or failure to conform to established procedures. The court ruled that judicial review could not invalidate an action simply because the court was dissatisfied with the regulatory results.[6]
  • 1983: Supreme Court develops hard look review
In Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, the United States Supreme Court established hard look review of agency decision-making—an application of the arbitrary-or-capricious test used by judges to assess the actions of administrative agencies. Hard look review seeks to determine the reasonableness of agency interpretations by ensuring that agencies take account of all relevant facts during the decision-making process.[9]
  • 1984: Supreme Court defers to agency interpretations of ambiguous statutes
See also: Chevron deference
In Chevron v. Natural Resources Defense Council, the United States Supreme Court developed Chevron deference—a two-step administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.[6]
  • 1989: Farina outlines constitutional concerns regarding Chevron deference
Administrative law scholar Cynthia R. Farina published "Statutory Interpretation and the Balance of Power in the Administrative State", which described both Article III and Article I concerns regarding Chevron deference. Farina wrote, "We cannot embrace Chevron’s vision of deference as the handmaiden to separation of powers and legitimacy principles without substantially recasting those principles—a recasting in which some aspects of existing theory would have to be abandoned and others radically reformulated. The danger of Chevron’s [siren] song lies in its apparent obliviousness to the fundamental alterations it makes in our constitutional conception of the administrative state."[10]
  • 1996: Manning criticizes Seminole Rock deference
Administrative law scholar John F. Manning published "Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules", which criticized Seminole Rock deference and the consolidation of law-making and law-executing powers in the same government entity.[10]
  • 1997: Supreme Court develops Auer deference, reaffirms Seminole Rock deference
See also: Auer deference
In Auer v. Robbins, the United States Supreme Court established Auer deference, which requires federal courts to give deference to how executive agencies interpret ambiguities in their own regulations. Auer deference reaffirmed Seminole Rock deference, and the two terms are often used interchangeably.[10][1]
  • 2000: Supreme Court defers to agency based on agency's ability to support its position
See also: Skidmore deference
In Christensen v. Harris County, the United States Supreme Court developed Skidmore deference, named for the 1944 U.S. Supreme Court decision in Skidmore v. Swift & Co. 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.[8]
  • 2001: Supreme Court narrows application of Chevron deference
In United States v. Mead Corporation, the United States Supreme Court narrowed the scope of application for Chevron deference to agency regulations and adjudicatory actions. Additional agency actions, such as other rulings, guidance, or policy statements, were relegated to consideration under Skidmore deference.[7][10]
  • 2005: Supreme Court allows agencies to overrule judicial opinions via new regulations
In National Cable & Telecommunications Association v. Brand X Internet Services, the United States Supreme Court developed a principle allowing an agency to overrule a judicial opinion by issuing a new, reasonable interpretation of a statute it administers, even if that interpretation differs from a prior judicial interpretation.[11]
  • 2006: Sunstein coins Chevron step zero
Administrative law scholar Cass R. Sunstein published Chevron Step Zero, which defined step zero as "the initial inquiry into whether the Chevron [deference] framework applies at all."[10]
  • 2011: Scalia expresses concern over Auer deference
In his concurrence for Talk America, Inc. v. Michigan Bell Telephone Co., Justice Antonin Scalia discussed his concerns about Auer deference and its potential violation of the separation of powers.[10]
  • 2012: Supreme Court narrows Auer deference
In Christopher v. SmithKline Beecham Corp., the United States Supreme Court held that Auer deference does not apply to an agency’s “interpretation of ambiguous regulations [that would] impose potentially massive liability on [the regulated entity] for conduct that occurred well before that interpretation was announced,” according to administrative law scholar Christopher Walker.[10]
  • 2013: Supreme Court expands scope of Chevron deference
In City of Arlington v. FCC, the United States Supreme Court held that the scope of Chevron deference extends to questions about whether agencies have authority under relevant statutes. The dissent argued that the opinion expanded the power of the administrative state and signaled that some justices might be willing to limit the Chevron doctrine. Chief Justice John Roberts argued that the court should not always apply Chevron deference in cases where Congress delegates rulemaking or formal adjudicatory authority to the agency and the agency applies the delegated authority to advance a statutory interpretation.[10][11]
  • 2015: Supreme Court holds that Chevron deference does not apply to major questions
In King v. Burwell, the United States Supreme Court held that Chevron does not apply to questions of great economic and political significance.[10]
  • 2015: Supreme Court further narrows Chevron deference
In Michigan v. Environmental Protection Agency, the United States Supreme Court observed that Chevron deference requires agencies to operate within the bounds of reasonable interpretation and determined that the EPA had strayed far beyond those bounds when it read a provision of the Clean Air Act to mean that it could ignore costs when deciding whether to regulate power plants. In his concurrence, Justice Clarence Thomas stated that Chevron deference "wrests from Courts the ultimate interpretative authority to 'say what the law is,' and hands it over to the Executive."[10]
  • 2016: Gorsuch questions deference doctrines
In Gutierrez-Brizuela v. Lynch, then-Judge Neil Gorsuch serving on the United States Court of Appeals for the Tenth Circuit raised constitutional concerns about judicial deference precedents. He stated, "In the APA Congress expressly vested courts with the responsibility to ‘interpret statutory provisions’ and overturn agency action inconsistent with those interpretations. Meanwhile not a word can be found here about delegating legislative authority to agencies."[7][12]
  • 2016: Lawmakers propose Separation of Powers Restoration Act of 2016
Republican members of Congress proposed the Separation of Powers Restoration Act of 2016, which would have amended the Administrative Procedure Act (APA) to require agencies to review de novo all agency statutory and regulatory interpretations. Congress did not pass the legislation.[10][13]
  • 2016: Hamburger raises concerns about deference and due process
Administrative law scholar Philip Hamburger published "Chevron Bias," which framed Article III concerns regarding deference in terms of due process. Hamburger argued that Chevron deference creates institutional bias in favor of agencies, which violates individuals' due process rights.[10]
  • 2017: Lawmakers propose Regulatory Accountability Act
Republican members of Congress proposed the Regulatory Accountability Act, which would have amended the Administrative Procedure Act (APA) to replace Auer deference with Skidmore deference. Congress did not pass the legislation.[10][14]
  • 2019: Lawmakers introduce Separation of Powers Restoration Act of 2019
Republican members of Congress introduced the Separation of Powers Restoration Act of 2019 on March 27. The bill proposes to amend the Administrative Procedure Act (APA) to require agencies to review de novo all agency statutory and regulatory interpretations.[15]
  • 2019: Supreme Court upholds Auer deference
The United States Supreme Court ruled unanimously in Kisor v. Wilkie to uphold Auer deference, while placing clear limitations on which regulatory interpretations qualify for deference.[16]
  • 2022: Supreme Court invokes major questions doctrine
In West Virginia v. Environmental Protection Agency, the U.S. Supreme Court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff.[17]
  • 2023: Lawmakers reintroduce Separation of Powers Restoration Act (SOPRA)
Republican members of Congress introduced the Separation of Powers Restoration Act on January 11, 2023. The bill was passed by the U.S. House of Representatives on June 15, 2023, with a vote of 220-211.[18]
  • 2023: Lawmakers introduce Regulatory Accountability Act
Republican members of Congress introduced the Regulatory Accountability Act on May 16, 2023, in an effort to amend the Administrative Procedure Act (APA) to replace Auer deference with Skidmore deference.
  • 2024: The Supreme Court overturns the Chevron deference doctrine
The U.S. Supreme Court ruled on June 28, 2024, to overturn the Chevron deference doctrine in the Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce decision, holding that federal courts may not defer to an agency’s interpretation of an ambiguous statute.[19]

See also

External links

Footnotes

  1. ↑ 1.0 1.1 Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017 Cite error: Invalid <ref> tag; name "yale" defined multiple times with different content
  2. ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
  3. ↑ UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017
  4. ↑ SCOTUSblog, "Kisor v. Wilkie," accessed December 10, 2018
  5. ↑ SCOTUSblog, "Loper Bright Enterprises v. Raimondo," accessed July 3, 2024
  6. ↑ 6.0 6.1 6.2 Duke Law Journal, "Judicial Deference to Administrative Interpretations of Law," June 1989
  7. ↑ 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," 2017
  8. ↑ 8.0 8.1 8.2 The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," January 1, 2008
  9. ↑ Michigan Law Review, "Thin Rationality Review," 2016
  10. ↑ 10.00 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 10.11 10.12 The Georgetown Journal of Law and Public Policy, "Attacking Auer and Chevron Deference: A Literature Review," 2018
  11. ↑ 11.0 11.1 Vanderbilt Law Review, "The Constitutional Case for Chevron Deference," 2018
  12. ↑ San Diego Law Review, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," 2018
  13. ↑ GovTrack, "Separation of Powers Restoration Act," accessed February 20, 2019
  14. ↑ Congress.gov, "Regulatory Accountability Act," accessed February 20, 2019
  15. ↑ United States Senate, "Sasse, Colleagues Introduce Separation of Powers Restoration Act of 2019," March 27, 2019
  16. ↑ Supreme Court of the United States, "Kisor v. Wilkie, Secretary of Veterans Affairs," June 26, 2019
  17. ↑ Reuters, "U.S. Supreme Court just gave federal agencies a big reason to worry," June 30, 2022
  18. ↑ Congress.gov, "H.R.288 - SOPRA," accessed July 18, 2023
  19. ↑ U.S. Supreme Court, "Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al.," June 28, 2024
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