Doctrine Of Deference Research Articles

After Deference: Formalizing the Judicial Power for Foreign Relations Law

How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. Natural Resources Defense Council as a way of constraining newly vigorous judicial engagement with executive law interpretation. The courts may have some appropriate role in interpreting foreign relations law, the notion is, but Chevron at least requires that the courts accept any reasonable executive interpretation. Yet, as this Article contends, Chevron’s promise for foreign relations law elusive. The Chevron doctrine in administrative law has proven neither as stable nor as attuned to the executive’s functional strengths and weaknesses as its foreign relations advocates imagine. More, Chevron poses a still unresolved challenge to formal understandings of the judicial power under Article III of the Constitution. If the executive enjoys substantial authority in statutory and treaty interpretation, what remains at the core of the courts’ structural power to say what the law is? While administrative law scholars have long struggled with the question, it has received surprisingly scant attention in the contemporary foreign relations debate. This an oversight. Understanding what power – and duty – the courts have to say what the law is a necessary precursor to determining what interpretive relationship between the courts and the executive should come after the Court has rejected abstention or total deference. This Article introduces the formal dimension into questions of interpretation in foreign relations law. Concluding that predominant understandings of the judicial power of interpretation provide insufficient accounts of the Court’s role in this realm, it begins the task of developing a supplemental understanding of formal judicial power for foreign relations law.

Trends and Problems of the Antitrust of the Future

The evolution of competition law has traditionally been driven by the US and EU systems. Over the years, the EU system has emerged as a primary model of antitrust enforcement. However, in the coming years, we will likely experience a gradual shift from a bipolar scenario to a multi-polar one, characterized by the increasing role of new players, such as China, India, and Brazil. In such an enlarged scenario, in order to continue to play a primary role in the transnational dialogue on antitrust enforcement, the EU needs to continue to develop and refine substantive principles of antitrust analysis through sound and consistent case law, as well as to improve the effectiveness of its enforcement system. However, some characteristics of the EU antitrust system could limit its capability to develop and refine its tools. The standard of review frequently adopted by the EU courts, based on the judicial deference doctrine, and the trend toward administrative and negotiated enforcement of competition rules, have limited the development of case law in the last few years. The increasing focus on consumer welfare seems to have translated, in some cases, into a consumerist approach, which is not consistent with sound antitrust principles. Furthermore, it is still controversial as to whether the EU should enhance the effectiveness and deterrence of its enforcement system by introducing criminal sanctions.

Does Deference Promote Principled Interpretations of Statutes?

AbstractStatutes permeate society. Administrators administer and interpret statutes. Litigants can challenge administrators' actions. In deciding the challenge, courts must interpret the statute. In doing so, courts must decide how much weight to give the administrator's interpretation. Doctrines of deference govern the amount of weight that courts should assign to agencies' interpretations. I use a sample of 1014 United States Supreme Court judgments to show that a low-to-medium level of deference is most likely to promote desirable interpretations that uphold the legislature's purpose for a statute and allow the words of the statute to reflect contemporary society.

Administrative Absurdity: Why the Judiciary Should Uphold EPA's Use of the Administrative Necessity and Absurd Results Doctrines within the Tailoring Rule

In Massachusetts v. EPA, the Supreme Court’s decision prompted the Environmental Protection Agency ('EPA' or 'Agency') to determine whether greenhouse gases ('GHG') endanger human health and welfare, and consequently whether the Clean Air Act ('CAA' or 'Act') should have the power to regulate GHG. Since that time, and in the absence of substantive climate legislation from the legislative branch, EPA issued a series of regulations culminating in the creation of a 'tailoring rule.' This rule outlines EPA’s authority to regulate only the largest GHG sources and exempt sources that emit less than the tailored applicability criteria. To achieve this goal, EPA relied on the administrative law principles of Chevron deference, 'absurd results,' and 'administrative necessity.' Since its issuance, a number of sources have challenged the validity of EPA’s actions.This Comment examines the efforts to curtail EPA’s regulation of GHG under the CAA and highlights some of the weaknesses in the approach currently taken by its challengers, notably a group of states and industry. This Comment begins by introducing the tailoring rule then proceeds by providing background on the legal doctrines that EPA has employed to justify the tailoring rule, specifically the doctrines of Chevron deference, 'absurd results,' and 'administrative necessity.' The Comment continues by addressing some of the legal challenges of the tailoring rule, with a focus on the arguments advanced by the state of Texas, and the strength and weaknesses of these challenges. This Comment concludes by arguing that under a permissibly broad reading of the Act, the Act permits EPA to modify the applicability criteria that determine which stationary sources and modification projects are subject to permitting requirements for GHG emissions under the CAA.

‘Constitutional Dialogues, Pluralism and Conflicting Identities’

Dialogue is not only a means of communication; it is also a medium of power. In European law, this is illustrated by the Solange formulation which can be viewed both as a perfect platform for launching constitutional dialogue and for vindicating power. The formulation has now spread over not only within the rhetoric of national courts but even within the language of the European Court of Human Rights and the Court of Justice. This Europeanization of Solange leads irremediably to an increased plurality of the EU legal order since it implies deference not only to European values but also to constitutional identities of the Member States. This is reflected in the recent case law of the Court of Justice where one can speck some clear traces of a doctrine of deference towards national identities. Plurality is as well reflected in the schizophrenic ruling of the Federal Constitutional Court (FCC) in June 2009. Yet the constitutional courts have been marginalized – especially if compare with lower courts – when it comes to establishing a fruitful and direct dialogue with the Court of Justice. Obviously, the application of the direct effect doctrine by the constitutional courts entails an acceptance of the preliminary ruling procedure. Very few constitutional courts have made preliminary rulings to the Court of Justice. But perhaps are we on the verge of a trend-shift on this matter?

Pluralism, Deference and the Margin of Appreciation Doctrine

AbstractIn this article it will be argued that good use of the instrument of deference might help the EU courts to deal with the situation of pluralism that is currently visible in the European legal order. By means of deferential judicial review, the EU courts can pay due respect to national constitutional traditions and to national legislative and policy choices, thus preventing situations of real conflict. In addition, deference enables the EU courts to take into account the intricacies related to judicial review of norms drafted by co‐equal institutions or by national elected bodies. Although the EU courts already make use of some form of deferential review, they may use the instrument in a clearer and more structured manner. As a basis for the development of a European ‘doctrine of deference’, a comparison will be made with the margin of appreciation doctrine devised by the European Court of Human Rights. Although this doctrine is certainly not fault‐free, it offers a number of advantages in terms of clarity and controllability. If improved and adapted on the basis of theoretical notions of procedural democracy, the doctrine might be put to good use by the EU courts.

Democratizing the Administrative State

Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Justices seemed to be poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court stepped back from that abyss and took a major step toward legitimating and democratizing the administrative state. The Court instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute. The Court based this doctrine of deference on the superior political accountability of agencies. Henceforth, politically-unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements the deference doctrine the Court announced in 1984 and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large costs in enforcement actions to comply with interpretations of agency rules that have already been rejected by the incumbent President by the time courts impose the costs on the regulatees and that were disavowed by the agency at the time the regulatees engaged in the conduct that is the basis for the enforcement actions. Professor Pierce explains why he believes that these results are unacceptable, and he proposes four changes in the Court's present methods of implementing the deference doctrines that will eliminate these effects and that will create a more democratic and constitutionally legitimate administrative state in which Presidents actually have the power to make changes in policy within the statutory boundaries set by Congress.

The Brand X Liberation: Doing Away with Chevron’s Second Step as Well as Other Doctrines of Deference

This paper argues that the Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services has cleared the path to discard the various doctrines of deference courts use to review agency interpretations and replace them with a single interpretive rule followed by arbitrary and capricious review. Courts have justified deference to: reasonable agency interpretations of ambiguous statutes where the agency employed its lawmaking powers (Chevron USA v. Natural Resources Defense Council); persuasive agency interpretations where the agency acted in some less formal way (Skidmore v. Swift & Co.); or even agency interpretations of their own ambiguous regulations (Auer v. Robbins). The most far reaching doctrine, Chevron has spurred countless debates. Courts and commentators have approached Chevron in two subtlety distinct ways, often at the same time. First, using the Deference Approach courts finding an ambiguity would defer to an agency interpretation so long as that interpretation was reasonable. Second, the Acceptance Approach required courts finding an ambiguity to envision whether the agency interpretation fell into the range of possible choices delegated to the agency by Congress and, if so, simply to accept the reasonable choice. Brand X confronted one of the few differences in these approaches: the effect of stare decisis when a court interpreted the statute prior to an agency interpretation worthy of Chevron. Although Brand X itself continued to employ rhetoric from both approaches, it is best justified, given its holding, under the Acceptance Approach. There are several important implications of Brand X’s endorsement of the Acceptance Approach. First, Brand X assigns an interpretive role to the courts to identify a zone of discretion afforded by Congress to the agency to make law and set policy. This zone includes both the substantive choices that the agency can make and how it must make them. Second, once the court has performed that task, then a reasonableness inquiry under Step Two of Chevron is not needed nor permitted. Courts can and should review the agency’s procedures for reaching its choice using the arbitrary and capricious standard of review. Finally, courts’ institutional mandate to identify a zone of agency lawmaking that relates to both substance and form renders other doctrines of deference indefensible. Discarding these various doctrines would: better focus both courts and agencies on their tasks; resolve some of the outstanding disputes concerning those tasks; eliminate pernicious vagueness that is too easily used to fudge analysis; and still maintain a clear, limited, deferential standard of review.

Deference, defiance, and doctrine: defining the limits of judicial review

While a court must respect the sphere of decision-making autonomy properly enjoyed by a public authority, a general doctrine of deference is unlikely to furnish a useful means of defining the limits of the court's jurisdiction. The appropriate degree of judicial deference is dependent on all the circumstances: the correct balance between constitutional rights and the general public interest is a feature of the context in which a specific legal issue arises. A doctrine of deference is rendered otiose by application of the ordinary common law grounds of judicial review, whereby the decision of a public authority is subjected to a test of procedural rectitude. The legitimacy of an executive decision is a function of the quality of the process that led to it, in which rights are accorded an importance commensurate with their true weight in all the circumstances. Wednesbury unreasonableness, correctly understood, constitutes a control over process adaptable to context and circumstance. The rule of law imposes ...

DEFERENCE, DEFIANCE, AND DOCTRINE: DEFINING THE LIMITS OF JUDICIAL REVIEW

While a court must respect the sphere of decision-making autonomy properly enjoyed by a public authority, a general doctrine of deference is unlikely to furnish a useful means of defining the limits of the court's jurisdiction. The appropriate degree of judicial deference is dependent on all the circumstances: the correct balance between constitutional rights and the general public interest is a feature of the context in which a specific legal issue arises. A doctrine of deference is rendered otiose by application of the ordinary common law grounds of judicial review, whereby the decision of a public authority is subjected to a test of procedural rectitude. The legitimacy of an executive decision is a function of the quality of the process that led to it, in which rights are accorded an importance commensurate with their true weight in all the circumstances. Wednesbury unreasonableness, correctly understood, constitutes a control over process adaptable to context and circumstance. The rule of law imposes constraints of equality and due process, and in the legislative context the former principle is paramount. Statutes must be interpreted as conforming to constitutional principle, so that basic rights are not unjustifiably curtailed. Legislation should not be held invalid, or defective, when capable of a suitably benign construction, consistent with constitutional standards. What is required is a construction that reconciles legitimate public purposes and established basic rights, according to context; and courts are only rarely justified in abdicating that responsibility.

Chevron's Foundation

How can a court justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court? That is the question this article addresses. It further considers the ramifications of the answer to that question on the potential forms that any doctrine of interpretative deference may assume. This article first rejects congressional intent to delegate interpretative primacy to agencies as the basis for Chevron. It argues that such intent is an unsupportable fiction that distracts attention from judicial responsibility for the Chevron doctrine. Instead, it posits that Chevron is better viewed as a doctrine of judicial self-restraint under the courts’ Article III responsibilities. It then analyzes how this view of Chevron might influence when and how the doctrine should operate.

A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment - which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' - has been seen by courts as one brick in this wall. This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall - one of sufficient size to allow some needed light to shine within.Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work. Reading the word 'punishment' in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced - which is not the vast majority of inmates compelled to work in the present day - should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment, or the ways that courts have construed it as a whole since that time. This article argues that the reason courts have broadened of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions. This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

Turning the Tide?

A strip search case originating in Arizona reached its conclusion at the Supreme Court this summer and earned substantial coverage in the popular press. However, educators who rely on such reports for their information may need this more complete view to understand the impact of this decision. Enforcing the district's no-drug policy, administrators in the Safford Unified School District, Arizona, investigated one middle school student's possession of prescription-strength Ibuprofen. The policy prohibited student possession of prescription-strength Ibuprofen unless the student had official permission to carry the drug at school. Their investigation first led to a female student who had more of these pills and who identified her friend Savana as the source. They did not ask her where Savana might be hiding the pills. After questioning Savana, who denied having any pills, the assistant principal searched Savana's backpack and outer clothing to no avail. He then instructed his administrative assistant and the school nurse, who both were females, to search Savana in the nurse's office. Ultimately, they had her pull her bra out and to the side and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. They did not find any pills. On June 25, 2009, the Supreme Court issued its decision, which amounted to two rulings: 1) the strip search violated the Fourth Amendment because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, and 2) the school official who ordered the search was entitled to qualified immunity from liability because there is reason to question the clarity with which the right was established. Eight of the nine members of the Court voted in favor of the first ruling; only Justice Thomas dissented. For the second ruling, seven justices, including Justice Thomas, agreed; Justices Ginsburg and Stevens dissented, viewing the first ruling as clearly settled. They all agreed that the pole star was the Court's 1985 decision in New Jersey v. T.L.O., which established a two-pronged standard: 1) reasonable suspicion for initiating the search, and 2) a multifactor test, including the nature of the infraction, for its scope. Obviously, student advocates are touting the Safford decision as a resounding victory under the Fourth Amendment specifically and the Constitution more generally. Scholars wonder whether this decision represents the next turning point in the tide, which had previously shifted first in students' favor in Tinker and then back in the districts' direction in T.L.O. (1) At this point, my cautious conclusion is that Safford represents a slowing but not stopping of the previous judicial trend for the following reasons. First, although the vote for the primary ruling was almost unanimous rather than closely divided, the majority did not increase the standard under T.L.O. but, instead, effectively conflated its two prongs for strip searches. Declining narrow boundaries for strip searches, the majority considered any search similar to what happened to Savana after the search of her outer clothing and belongings as categorically distinct, requiring distinct elements of justification. More specifically, the school officials' suspicion was not reasonable in light of the intrusive scope of the search. Thus, although intrusiveness looms large as a factor, the standard is not probable cause. Moreover, the ruling in favor of Savana does not extend to the first search; the majority made clear that the search of her backpack and outer clothing was not excessively intrusive and, thus, met the relatively relaxed view of reasonable suspicion. Second, the almost as strongly supported second ruling exhibited continuation of deference to school officials. Although Safford clearly settles the more rigorous view of reasonable suspicion for any sort of strip search for future cases, the 7-to-2 ruling in favor of qualified immunity of the individual school defendant2 reaffirmed the traditional deference doctrine generally, and specifically it clarified: [W]e mean to cast no ill reflection on the assistant principal, for the record raised no doubt that his motive throughout was to eliminate drugs from his school and protect students. …

In Defence of Due Deference

The doctrine of deference permeates human rights review. It plays a role in defining Convention rights, in determining the nature of the proportionality test applied when analysing non‐absolute rights, as well as in deciding the stringency of its application. The role of deference has recently been subjected to both judicial and academic criticism, some of which advocates the demise of the doctrine. This article develops a contextual account of deference that is justified for epistemic reasons, rather than reasons of relative authority. This conception is able to withstand current criticism and is modest enough to play a role in a range of different justifications and understandings of judicial review under the Human Rights Act. The article then provides a more detailed account of deference, taking account of the relative institutional features of the legislature, executive and judiciary, without running the risk that the court fails to perform its constitutional function of protecting individual rights.

Wilderness and the Judiciary

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies' decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies and numeric information from all of the cases decided under the 1964 Wilderness Act. The numbers reveal three striking facts. First, a two-fold gap exists between agency success rates in litigation depending on who brings the challenge and the type of challenge it is. Second, the agencies tend to lose in challenges brought by environmentalists more often than not. Third, the party of appointment for the judges does not appear to affect overall distribution of their votes as measured on a simple pro-wilderness/ anti-wilderness axis. After providing some possible explanations for this apparent one-way judicial ratchet favoring wilderness protection - some of which will be examined more thoroughly in future work - the Article offer some observations about whether such a one-way ratchet will always benefit wilderness restoration and protection.

Judicial Deference, Agency Commitment, and Force of Law

The law governing judicial deference to agency statutory constructions is a complex brew of improbable fictions and proceduralism. One reason this state of affairs persists is that courts have failed to resolve a contradiction between two competing, sensible impulses in deference doctrine. Oceans of precedent over the last 150 years have stressed that courts should defer to longstanding, reasonable constructions by agencies of statutes they administer. Then along came Chevron, which extolled agency flexibility and instructed courts to extend strong deference even to interpretive flip-flops. Competition between the virtues of interpretive consistency and flexibility has bubbled through and confused judicial deference analysis ever since. The Supreme Court's recent efforts to limit the scope of Chevron's strong deference to agency constructions that carry the force of law has worsened such confusion, in part because the Court's discussion and application of this concept were incoherent. This Article proposes a commitment approach to this force-of-law limitation that has deep roots in the concept of the rule of law and considerable power to clarify deference doctrine by resolving the clash between the competing values of interpretive consistency and flexibility. For the rule of law to be genuine, the default position must be that laws have general applicability - i.e., the law for X should be the law for Y as well. This truism suggests that an agency's statutory construction properly can enjoy the force of law only where the agency has committed to applying its construction consistently across time and parties. Where an agency's construction is longstanding, the agency's commitment to consistent application is self-evident. The puzzle, of course, is to reconcile this commitment approach with Chevron's praise of interpretive flexibility. One solution is to recognize that an agency can genuinely commit to a new interpretation by adopting it in a manner that makes it costly to change course later. Where agencies commit to consistency in this way, there is less need for courts to engage in independent statutory construction to protect rule-of-law values, which should leave courts freer to accept the premise of strong deference that the best way to determine the meaning of an agency's statute is to trust the agency's own (rational) construction.

Applying Judicial Doctrine to Visitor Capacity Decision Making

In the next decades, the park and recreation profession will have its day in court as agencies accept that restraint on recreational freedoms is the price to be paid for protecting important natural resources and the recreational opportunities they afford. Yet most professionals have had little experience with the judiciary, and to consider the judiciary as a valued management tool is an oxymoron for most. However, the judiciary will remain an active participant in public land management. Rather than viewing the judiciary with fear and intimidation, decision makers can use legal doctrines to exercise their administrative discretion and responsibility. Our natural and cultural resources, the recreating public, and the judiciary would benefit from agency decision makers proactively applying the doctrines of deference, ripeness, due diligence and due care, and sufficient evidence to visitor capacity decision making.

Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective

Examined in this article are the deference doctrines developed by courts in the United States, Canada, Britain, Australia and South Africa. Deference doctrines determine when and if courts are to defer to an agency's reasonable interpretation of the ambiguous terms of the statute that the agency administers. The study of deference doctrines in comparative perspective reveals much about the need for agency autonomy in the modern administrative state and the capacity of courts to maintain the delicate balance and remedy abuses of discretion. It also provides an opportunity to determine how well the leading theories of judicial decision making explain the variety of judicial responses to the common problem of deference to agency interpretation of statues.

Respecting Deference: Conceptualizing Skidmore Within the Architecture of Chevron

This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in many appeals involving administrative agency interpretations of law. This Article addresses the deference debate in this context, criticizing Christensen, especially Justice Thomas' majority opinion. The Article argues that the majority did not properly apply Skidmore, and that the Court's decision invites ad hocery by lower courts in their review of agency legal interpretations. It concludes that conceptualizing Skidmore within the architecture of Chevron's step two ? not as an alternative to the application of Chevron ? will best promote goals of accountability, uniformity, and flexibility.

The Judicial Perspecive in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role

Recent scholarship on statutory interpretation has emphasized that certain approaches to interpretation may have instrumental effects on lawmaking. In this article, Professor Molot argues that judicial influence over legislative behavior is not a new idea, but rather is an important component of our original constitutional structure. Examining the Founders' ideas on language and interpretation, Professor Molot suggests that most Founders viewed law as moderately indeterminate, such that ambiguity could not be completely eliminated but judicial interpretation was constrained by well-established canons of construction. Professor Molot posits that under the constitutional structure, these constraints on judicial interpretation also exerted a moderating influence on the legislative process. Powerless to control interpretation through political means, legislators had incentives to internalize judicial values of fairness and rationality and engage in careful deliberation and drafting. Professor Molot cautions, however, that if the judiciary was positioned by our original constitutional structure to influence legislators, modern doctrines of deference may undermine the judiciary's structural role. Judges today routinely defer to reasonable agency interpretations of ambiguous statutes and regulations, rather than resolving ambiguity themselves. To the extent that interpretative power now resides with politically accountable agencies, rather than politically insulated judges, Professor Molot warns that we may lose an important extra-political influence over legislative deliberation and drafting.