• Video

Court Deference to Agencies

Courts often defer to agency decisions about how the agency applies a statute. Is deference necessary in some cases? Is it always applied for the same reason? Professor Gary Lawson explains that there are several reasons that a court might defer to agencies. It can be complicated to determine whether such deference is warranted, but not all reasons for deference can be easily dismissed as illegitimate. This video was filmed before the Kisor v. Wilkie decision was handed down, which pertains to the doctrine of Auer deference. https://youtube.com/watch?v=hD50mOw-DPw


When the cases within the court's jurisdiction involve administrative agencies, most of the time by the time the case gets into court the administrative agency will have previously interpreted and applied the law. That's probably what the party challenging the agency is complaining about. They don't like the way the agency interpreted and applied the law. But that means that the case comes to the court with a decision already having been made. What should a court do with that prior decision? As a matter of practice in the modern administrative law world, over a wide range of cases, not an unlimited range, but a wide range of cases, courts treat the interpretations of law of federal administrative agencies as presumptively correct. They don't do that with administrative interpretations of the Constitution. They do do that with administrative interpretations of lots of statutes. Not always, but often. We call that Chevron deference after a 1984 case that didn't actually say this, but everyone treats it as though it did. They often do do that. Not always, but often, when agencies interpret their own administrative rules, the things they have promulgated that look, function, and act like statutes. Not always, but often. That is sometimes called Auer deference after a 1997 Supreme Court case that really did say that that's what you were supposed to do. Sometimes, under another doctrine called the Skidmore doctrine after a 1944 Supreme Court case, they will give some weight or consideration to the agency's interpretation of the law, but they won't treat it as presumptively correct or is reversible only if it's crazy or stupid. They'll give it whatever weight it seems to warrant under the circumstances. There are some people, Justice Clarence Thomas most notably, who think that when courts give those agency interpretations controlling legal weight when they come in with the mindset that we're going to side with the agency unless the agency is clearly, obviously, wildly wrong, that that is a violation of the duty under Article Three to exercise the judicial power to decide a case in accordance with governing law. Whether you think that is true or not may depend upon why it is you think the court is taking that approach. Courts can give weight to prior decisions, whether of agency interpretations of law, or to jury findings of fact, or to anything else to which they give weight or deference, for all sorts of reasons. They may think they have been ordered to do so by higher authority. Sometimes courts may defer or give weight to someone else's views because they think it's good evidence of the right answer. Third possible reason is saves decision costs. If courts had to decide from scratch every single question that came up, they'd never get through their docket. Fourth possible reason is they actually prefer one of the parties to the other. Maybe they're deferring just because they like the government more than they like the parties challenging. I think your attitude towards deference is going to depend very much on why it is you think the courts are doing that. If you think they're deferring just because they like one party over the other, yeah, that's going to be really problematic. If you think they're deferring because they're ordered by higher authority to do it, you might have a very, very different view. So sorting through what courts should be doing with a prior decision on anything, including an agency interpretation of law, is actually quite complicated.

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