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Scholarly work related to judicial deference to administrative agencies
| 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. |
| Five Pillars of the Administrative State |
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| Judicial control |
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| •Agency control • Executive control •Legislative control • Public control |
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This page contains briefs on scholarly works related to judicial deference covered on Ballotpedia.
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]
Scholarly work pertaining to deference to administrative agencies
"The Constitutional Case for Chevron Deference" by Jonathan Siegel (2018)
In "The Constitutional Case for Chevron Deference" (2018), American law professor Jonathan Siegel defended Chevron deference within a constitutional framework. Siegel specifically seeks to defend Chevron deference from the claim that the deference regime violates Article III of the Constitution, which vests judicial power in the courts. He also addresses other contemporary critiques of Chevron, including arguments that the deference regime facilitates bias in favor of agencies and violates the nondelegation doctrine.[6]
"In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron" by Terence J. McCarrick Jr. (2018)
"In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron" (2018) is a law review article by attorney Terence J. McCarrick Jr. defending Chevron deference against its critics. Chevron deference 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. McCarrick argues that Chevron's detractors misinterpret the way the founders of the United States understood how executive officials would exercise discretion under the law.[7] He claims that Chevron is a defensible reflection of early American political theory and judicial precedents dealing with how officials should respond to ambiguous laws.
"The Origins of Judicial Deference to Executive Interpretation" by Aditya Bamzai (2017)
"The Origins of Judicial Deference to Executive Interpretation" (2017) is a law review article by law professor Aditya Bamzai that aims to explain where the idea of judicial deference came from, as articulated by the U.S. Supreme Court in Chevron v. Natural Resources Defense Council (1984).[8] He argues that pre-Chevron courts did not require judicial deference to executive interpretations of law.[8] Bamzai says "the proposition that Chevron has a basis in traditional interpretive methodology, the views of the Framers of the United States Constitution, or section 706 of the Administrative Procedure Act should be abandoned."[8]
"Thin Rationality Review" by Jacob Gersen and Adrian Vermeule (2016)
"Thin Rationality Review" (2016) is an article by American legal scholars Jacob Gersen and Adrian Vermeule arguing that courts reviewing the policy choices made by agencies ought to use a more lenient standard than the traditional hard look review that the Supreme Court articulated in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company.[9]
"Judicial Deference to Administrative Action—A Revisionist History" by Ann Woolhandler (1991)
"Judicial Deference to Administrative Action—A Revisionist History" (1991) is a law review article by Ann Woolhandler arguing that the interactions of political and economic theory with laws and court precedent determined the level of deference courts gave to agency decisions during the 19th century.[10] She disagrees with scholars who claim that the 19th century U.S. Supreme Court was characterized by monolithic deference to administrative actions.[10] Woolhandler argues that one cannot "conclude that there is one ideal and elegant allocation of power between court and agency where administrative law will necessarily have to rest."[10]
"Law and Administration after Chevron" by Cass Sunstein (1990)
"Law and Administration after Chevron" (1990) is a law review article by law professor Cass R. Sunstein defending Chevron deference as a plausible means for allowing the will of democratically accountable, specialized agencies to prevail over relatively unaccountable, generalist judges.[11] He argues that "[d]espite its seemingly technical character, the Chevron principle [...] has altered the fabric of modern public law, influencing an enormous range of substantive outcomes in the process."[11]
"Judicial Deference to Administrative Interpretations of Law" by Antonin Scalia (1989)
"Judicial Deference to Administrative Interpretations of Law" (1989) is a lecture delivered by former U.S. Supreme Court Justice Antonin Scalia and later printed by the Duke Law Journal. In the lecture, Scalia defended the concept of Chevron deference, which compels federal courts to defer to federal agencies' interpretations of ambiguous or unclear statutes. He argued that the U.S. Supreme Court's decision in Chevron v. NRDC (1984) improved the way courts approached ambiguities in the law that Congress left up to agency administration.[12]
"Statutory Interpretation and the Balance of Power in the Administrative State" by Cynthia R. Farina (1989)
"Statutory Interpretation and the Balance of Power in the Administrative State" (1989) is a law review article by law professor Cynthia R. Farina critiquing Chevron deference.[13] She argues that the U.S. Supreme Court's 1984 Chevron decision changed the balance of power between the branches of the federal government in a way that threatens the original system of separation of powers.[13]
"Marbury and the Administrative State" by Henry Paul Monaghan (1983)
"Marbury and the Administrative State" (1983) is a law review article by law professor Henry Paul Monaghan defending the idea of judicial deference to administrative interpretations of law.[14] He argues that Marbury v. Madison (1803) does not prevent courts from deferring when they see that Congress has delegated law making authority to agencies.[14]
See also
- Deference (administrative state)
- Chevron deference
- Skidmore deference
- Auer deference
- Taxonomy of arguments about judicial deference
- List of court cases relevant to judicial deference to administrative agencies
- List of legislation relevant to judicial deference to administrative agencies
- List of executive orders relevant to judicial deference to administrative agencies
- List of scholarly work pertaining to judicial deference to administrative agencies
- United States Supreme Court
- Administrative state
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
- ↑ Social Science Research Network, "The Constitutional Case for Chevron Deference," 2018
- ↑ San Diego Law Review, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," 2018
- ↑ 8.0 8.1 8.2 Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," 2017
- ↑ Michigan Law Review, "Thin Rationality Review" 2016
- ↑ 10.0 10.1 10.2 Administrative Law Review, "Judicial Deference to Administrative Action," 1991
- ↑ 11.0 11.1 Columbia Law Review, Law and Administration after Chevron," 1990
- ↑ Duke Law Journal, "Judicial Deference to Administrative Interpretations of Law," 1989
- ↑ 13.0 13.1 Cornell Law Faculty Publications, "Statutory Interpretation and the Balance of Power in the Administrative State, Paper 788," 1989
- ↑ 14.0 14.1 Columbia Law Review, "Marbury and the Administrative State," 1983
