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Tuesday, October 09, 2007

Three Faces of Deference in Rumsfeld v. FAIR

Last week I plugged my new paper Three Faces of Deference.  I noted that deference is a pervasive and yet undertheorized tool in constitutional law.  My paper attempts to provide some greater order in this area.  It also argues that one often neglected aspect of deference concerns the obligations of the deferred-to party, which ought to act in a way that is consistent with its invocation of deference.

Let me discuss another aspect of the paper, which may render some of the broader theoretical claims I make in the first section of the paper more concrete.  Why does it matter if the courts have failed to arrive at an especially clear and coherent picture of what it means to defer to an institution?  Well, one reason is that the cases that courts are confronted with quickly grow more complicated.  In particular, deference is often not simply a binary choice, in which a single institution comes before the court invoking deference, and either succeeds or fails in convincing the court to defer.  Rather, courts often confront competing claims to deference, in which two or more institutions in the same case each argue that the court should defer principally to them and not to the other institution.  Absent some reasonably clear framework for understanding deference, let alone for understanding how to evaluate competing claims to deference, courts will be poorly equipped to resolve these claims, and will resort to subterfuge or poor reasoning in deciding them.

In the paper I take the recent Solomon Amendment case, Rumsfeld v. FAIR, as an example.  FAIR also serves as an example of my other point: deference is not simply a license, but carries with it obligations on the part of the deferred-to party.  Even if the courts ought to defer to such an institution when it falls short of its obligations, that institution should still be subject to criticism from outside the courts.  Here's more from the abstract:

[In FAIR, ] the Supreme Court rejected a challenge to the Solomon Amendment, which requires law schools to provide access to campus for military recruiters. In FAIR, the Court faced claims of deference from Congress, acting pursuant to its military powers, and from the law schools, which invoked deference both as expressive associations and as universities. The Court's treatment of these competing claims to deference was unsatisfactory. The Court gave too much deference to Congress, and too little to the law schools. In particular, it failed to accord them the deference they deserved as universities, which serve as vital "First Amendment institutions" in the universe of public discourse. The Court's failure to soundly address these competing claims of deference bespeaks a larger failure to theorize the nature of deference and the occasions on which courts should defer. Thus underequipped, the Court was left at sea when confronting multiple institutions competing for deference in the same case. At the same time, the law schools themselves may have fallen short in meeting their own obligations as deferees.

Posted by Paul Horwitz on October 9, 2007 at 10:00 AM in Constitutional thoughts | Permalink

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