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Thursday, December 06, 2012

The Deference Question, Part III: Some Basic Principles

            In my last post I suggested an approach to the question of judicial deference to congressional factfinding that turned ultimately on whether the deference claim was grounded in congressional authority or expertise.  I argued that authority-based deference was very roughly analogous to the deference accorded administrative agency statutory interpretations in Chevron, while expertise-based deference very roughly paralleled Chevron’s companion, so-called “Skidmore” deference.  I also suggested that the choice between these deference claims itself turned on the nature of the fact for which deference was claimed: expertise-based claims were appropriate when Congress demands deference for empirical findings, while authority was the proper foundation for the deference claim when the fact at issue was more value-based.

            Do these distinctions get us anywhere in answering the deference question?  I like to think that it advances the ball, even if, as I freely concede, any analysis of a concept as vague (and often outcome-determinative) as “deference” is subject to manipulation.  The devil really is in the application.  Nevertheless, these distinctions suggest some common-sense approaches to the deference question.  If you’re interested in more than the cursory analysis below, you can check out the long form version in this paper.

            Start with the (very) basics.  If we are to believe the Court that Congress has a role in applying constitutional doctrine through factfinding, but that the Court is supreme in declaring the law, then we have to distinguish between fact and law, and the institutions which have primary responsibility for each.  This suggests a basic principle that courts should accord less deference to congressional factfindings that purport either to establish doctrinal tests (as Congress did when it reinstated strict scrutiny for Free Exercise claims in RFRA) or conclude that such tests are satisfied (as it has done, for example, when concluding that certain groups constitute “discrete and insular minorities”). 

Of course, doctrinally-resonant findings are often not as blunt as these, but rather take the form of “findings” that conveniently happen to plug into a doctrinal test.  Here I’m thinking about findings such as the one in the Partial Birth Abortion Ban Act of 2003, that particular abortion procedures are never medically necessary.  That finding, if accepted, essentially opens the escape hatch from constitutional doctrine’s requirement that abortion restrictions allow exceptions for maternal health.  These findings may well be formally non-legal, but their snug fit with, and influence on the outcome of, doctrinal tests suggests that they may warrant especially high scrutiny.

            One can also say some interesting things about clearly non-legal findings.  Most basically, the distinction between expertise- and authority-based claims calls for relatively  more intense scrutiny of congressional empirical findings, as compared with findings that reflect normative conclusions or ideology.  The fact is that, as between these two types of findings, courts are better equipped to examine the correctness of the former, as opposed to second-guessing the values underlying the latter.  Indeed, some scholars think that courts are not only relatively better-equipped to review congressional empirical findings but in fact are better empirical factfinders than Congress.  Value-based findings, however, are largely immune from credible judicial review.  With the important caveat that such findings cannot be allowed to conflict with the Constitution’s own values (which is really just a restatement of the law-fact distinction), value-based findings should largely get a pass from courts.

            Focusing now on empirical findings, several common-sense principles can animate judicial review of congressional empirics.  For example, a track record of inaccurate congressional factfinding on an issue reasonably calls into doubt Congress’s overall factfinding on that topic.  Of course, sometimes such misfires are not accidental, but instead reflect willful manipulation of evidence in order to justify findings that push the legal result in the desired direction.  In other words, factfinding can be insincere.  But here too, principles such as this one can play a helpful role, by incentivizing instrumentally-minded legislators to moderate their more extravagant manipulations, if they realize that such bad findings will infect other findings in the statute.

            I would also suggest that a series of conflicting findings over time should mitigate any expertise-based deference claim.  After all, if Congress is claiming deference because it’s the expert, then a series of unexplained flip-flops certainly casts some doubt on the deference claim.  Indeed, this principle closely shadows expertise-based Skidmore deference, which, as you may remember from admin law, is based on the idea that the agency, as the expert, likely got the question right.

            All in all, I think these principles can help channel the analysis when courts consider the deference question.  They can’t completely erase all room for judgment and choice, however.  In my final post, I’ll talk about whether, regardless of one what thinks about these principles and their underlying analysis, trying to answer the deference question is a fool’s errand.

Posted by Bill Araiza on December 6, 2012 at 06:23 AM | Permalink


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