Arguments in favor of judicial deference: Deference is constitutional

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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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## Contents

* 1 Deference is constitutional
* 1.1 Claim: Chevron deference does not create judicial bias in favor of agencies
* 1.2 Claim: The nondelegation doctrine allows Chevron deference
* 1.3 Claim: Judges may evaluate policy outcomes to make decisions
* 2 Footnotes

See also: Taxonomy of arguments about judicial deference and Judicial deference: a timeline

This page captures one of the main arguments that have been advanced in favor of judicial deference as a doctrine.

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]

There are six main types of argument in favor of judicial deference:

* Deference respects expertise

* Deference produces better outcomes

* Deference is constitutional

* Deference recognizes congressional delegations of authority to agencies

* Deference is required by separation of powers

* Deference adheres to legal practices and precedent

## Deference is constitutional[edit]

This argument says that the U.S. Constitution allows for judicial deference to administrative agencies and that such deference does not violate the nondelegation doctrine. The nondelegation doctrine is a legal principle that says legislatures may not give away legislative power to other branches of government or to private entities. The argument is developed by the following claims.

### Claim: Chevron deference does not create judicial bias in favor of agencies[edit]

* Jonathan R. Siegel writes, “There is no bias when a judge enforces a statute that expressly delegates authority to an administrative agency. Innumerable statutes expressly delegate authority to an agency to make some decision—say, to set the maximum levels of a pollutant in the air or drinking water in accordance with a statutory standard. In such cases, when the agency exercises the power delegated to it, judicial review is routinely held to be available only for rationality. Challengers of the agency’s action therefore labor under the same burden as to which Hamburger complains—they can win only if they convince a reviewing court that the agency’s action is not only wrong, but irrational. The agency has a clear advantage. And yet no one would claim that courts are unconstitutionally showing bias in favor of agencies in such cases. The agencies have the advantage simply because courts will necessarily permit the agencies to exercise the power conferred on them by statute.”[6]

### Claim: The nondelegation doctrine allows Chevron deference[edit]

* Jonathan R. Siegel writes, "[W]hatever decisionmaking authority Congress implicitly confers on agencies by virtue of Chevron, Congress could have conveyed to agencies expressly. The authority conferred might or might not violate the nondelegation doctrine, but the form by which the authority was conferred should make no difference. Once again, therefore, Chevron makes things no worse from a nondelegation perspective."[6]

### Claim: Judges may evaluate policy outcomes to make decisions[edit]

* Antonin Scalia argued in a speech that courts are allowed to consider policy consequences when they make decisions. He says, “Surely one of the most frequent justifications courts give for choosing a particular construction is that the alternative interpretation would produce ‘absurd’ results, or results less compatible with the reason or purpose of the statute. This, it seems to me, unquestionably involves judicial consideration and evaluation of competing policies, and for precisely the same purpose for which (in the context we are discussing here) agencies consider and evaluate them—to determine which one will best effectuate the statutory purpose. Policy evaluation is, in other words, part of the traditional judicial tool-kit that is used in applying the first step of Chevron—the step that determines, before deferring to agency judgment, whether the law is indeed ambiguous. Only when the court concludes that the policy furthered by neither textually possible interpretation will be clearly "better" (in the sense of achieving what Congress apparently wished to achieve) will it, pursuant to Chevron, yield to the agency's choice. But the reason it yields is assuredly not that it has no constitutional competence to consider and evaluate policy.”[7]

## Footnotes[edit]

1. ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
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 Jonathan R. Siegel, "The Constitutional Case for Chevron Deference," Vanderbilt Law Review, Vol. 71 (2018)
7. ↑ Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)

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Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States

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Bibliography|

* "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000)
* "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017)
* "Constitutionalism after the New Deal" by Cass R. Sunstein (1987)
* Federalist No. 23 by Alexander Hamilton (1787)
* "From Administrative State to Constitutional Government" by Joseph Postell (2012)
* "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002)
* "Rulemaking as Legislating" by Kathryn Watts (2015)
* "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016)
* "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017)
* "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007)
* "The Rise and Rise of the Administrative State" by Gary Lawson (1994)
* "The Study of Administration" by Woodrow Wilson (1887)
* "The Threat to Liberty" by Steven F. Hayward (2017)
* "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008)

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