Academic journal article Justice System Journal

Does Deference Depend on Distinction? Issue Salience and Judicial Decision-Making in Administrative Law Cases

Academic journal article Justice System Journal

Does Deference Depend on Distinction? Issue Salience and Judicial Decision-Making in Administrative Law Cases

Article excerpt

Judicial deference to administrative agencies is often viewed as a dichotomous choice between full deference and no deference, ignoring considerations of institutional and political context. I argue that a court's decision on whether to defer to an administrative agency is more complex and is conditional on the political salience of the substantive issue in the case. I test this theory in the context of the U.S. Courts of Appeals using a sample of cases decided between 1961 and 2002. The results show that when dealing with non-salient cases, the level of deference to agencies is static, but in salient cases the level of deference is strongly related to the ideological congruence between the court and the agency.

KEYWORDS: administrative law, judicial review, salience, Chevron deference, judicial ideology

Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene. The courts are the only defense [sic] of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizen: so that the courts can see that these great powers and influence are exercised in accordance with law.1

We accord deference to agencies... because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.2

The perspectives presented in the above quotes illustrate that jurists worldwide recognize the importance judicial deference to administrative agencies has both for the state of the law and for its impact on the daily lives of individual citizens. As with much of the existing scholarly research on the subject, they imply that deference is a dichotomous choice: Either courts are always deferential and allow agencies to become bureaucratic dictators running amok over the rights and liberties of individual citizens, or they overstep the judicial role in exerting high levels of oversight to the point that they are replacing bureaucratic judgment with their own. However, in practice things may not be quite so simple, as the decision of whether to defer in any given case may be conditional on the importance of the substantive issue in that case.

The key question then becomes: Under what conditions will courts give wholesale deference to administrative agencies, and under what conditions will they provide defense of individual liberties from bureaucratic interference? My principal argument is that deference depends on the importance of the issue in the case. The questions raised in administrative law cases regularly impact the everyday lives of ordinary citizens; however, many of those cases involve issues of interest only to the parties in the case and a select group of individuals in the "consumer population" (Canon and Johnson 1999). Conversely, other cases touch on issues of high political visibility that would be of interest to a larger proportion of the mass public. I argue that the political salience of the issues in these cases (i.e., how much the issue resonates with the general population) will condition how judges view the case. If the issue is a highly salient one, judges will recognize the importance and give the case greater consideration. In doing so, I argue they will rely heavily on ideological considerations in their decision calculus. Alternatively, when the issue is less politically relevant, judges will be more likely to adopt a deferential posture, consistent with the position illustrate in the above quote from the U. …

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