Arguments in favor of judicial deference: Deference produces better outcomes

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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 produces better outcomes
* 1.1 Claim: Chevron deference is better than a case-by-case approach
* 1.2 Claim: Chevron allows for agency flexibility
* 1.3 Claim: Chevron disciplines the administrative state
* 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 produces better outcomes[edit]

This argument says that judicial deference to administrative agencies leads to better outcomes than if courts reviewed all agency decisions on a de novo basis. Beyond better outcomes, some proponents of this argument say agencies have more flexibility to solve problems when judges defer to them and that chaos would follow if courts were less deferential. Most claims involve Chevron v. Natural Resources Defense Council, a 1984 U.S. Supreme Court decision that said courts must yield when agencies make reasonable interpretations of ambiguous laws they are empowered to administer.[6]

### Claim: Chevron deference is better than a case-by-case approach[edit]

* Justice Antonin Scalia argued that Chevron is better than the previous case-by-case approach because Congress can anticipate how ambiguity will be resolved by agencies better than how judges will rule. He says, “If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known. The legislative process becomes less of a sporting event when those supporting and opposing a particular disposition do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer will be provided by the courts or rather by the Department of Labor.”[7]
* Scalia argued that even if Chevron doesn’t line up with Congressional intent for agency power, the previous practice of case-by-case evaluation didn’t either. “If the Chevron rule is not a 100% accurate estimation of modem congressional intent, the prior case-by-case evaluation was not so either-and was becoming less and less so, as the sheer volume of modem dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the 'genuine' legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.”[7]

* Scalia argued that Chevron is better than the case-by-case approach because it promotes flexibility and political participation. He says, “one of [Chevron’s] major advantages from the standpoint of governmental theory, [is] to permit needed flexibility, and appropriate political participation, in the administrative process. One of the major disadvantages of having the courts resolve ambiguities is that they resolve them for ever and ever; only statutory amendment can produce a change.” And, “If Congress is to delegate broadly, as modem times are thought to demand, it seems to me desirable that the delegee be able to suit its actions to the times, and that continuing political accountability be assured, through direct political pressures upon the Executive and through the indirect political pressure of congressional oversight. All this is lost if 'new' or 'changing' agency interpretations are somehow suspect.”[7]
* Scalia continued: “[T]he capacity of the Chevron approach to accept changes in agency interpretation ungrudgingly seems to me one of the strongest indications that the Chevron approach is correct. It has always seemed to me utterly unrealistic to believe that when an agency revises one of its interpretative regulations, or one of the legal rules that it applies in its adjudications-when the NLRB, for example, decides that employer action previously held to be an 'unfair labor practice' is no longer so, or when the Federal Trade Commission amends one of its regulations to declare action previously permitted an ‘unfair or deceptive trade practice’-the agency was admitting that it had ‘got the law wrong.’ And it has thus seemed to me inappropriate to look askance at such changes, as though we were dealing with a judge who cannot make up his mind whether the rule in Shelley's Case applies or not. Rather, the agency was simply ‘changing the law,’ in light of new information or even new social attitudes impressed upon it through the political process-all within the limited range of discretion to 'change the law' conferred by the governing statute. Chevron, as I say, permits recognition of this reality.”[7]

* Aditya Bamzai cited Antonin Scalia’s 1989 lecture on deference saying that Chevron resolved a problem in the law. “Indeed, on one view, Chevron—if it had no other beneficial aspects—at the very least cleared up the intellectual and jurisprudential disarray that had existed for over a century prior to 1984.”[8]

* Attorney T.J. McCarrick writes, “Moreover, efforts to rein in Chevron are fraught with risk. Aside from line-drawing problems, sorting agency action into substantial, insubstantial, jurisdictional, and non-jurisdictional buckets would 'transfer any number of interpretive decisions . . . about how best to construe an ambiguous [statute] in light of competing policy interests' from executive agencies to federal courts. It would also invite chaos, replacing Chevron’s blanket presumption with an ad hoc, totality-of-the-circumstances test that would replicate the incoherence of pre-Chevron case law.”[9]

### Claim: Chevron allows for agency flexibility[edit]

* T. J. McCarrick writes, “Chevron offers agencies flexibility to pursue different—and yes, opposite—policy goals than their predecessors. Put differently, it prevents ossification of federal law.”[9]

### Claim: Chevron disciplines the administrative state[edit]

* Law professor Cass R. Sunstein writes in a law review article, "By developing a clear view of the relationship among [interpretive] principles, we might ultimately be able to reconcile Chevron, even in its broader formulations, with approaches to statutory interpretation that help to discipline the administrative state through legal constraints on the exercise of public power. A reconciliation of this sort would count as one among a wide range of steps designed to adapt a legal system founded on common law principles to the aspirations and pathologies of the administrative state."[10]

## 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. ↑ Supreme Court of the United States (via Findlaw), Chevron U.S.A. v. Natural Res. Def. Council, decided June 25, 1984
7. ↑ 7.0 7.1 7.2 7.3 Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)
8. ↑ Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
9. ↑ 9.0 9.1 T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
10. ↑ Columbia Law Review, Law and Administration after Chevron," 1990

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* "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)
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* "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)
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