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Wednesday, November 28, 2012

The Deference Question, Part I: Why Care?

Aside from my possibly oddball interest in the class of one doctrine (reflected this month herehere and here), another lost cause academic interest I have concerns the role of Congress in the project of constitutional construction.  I've written about this issue the most in the context of congressional power to enforce the Fourteenth Amendment (and the Equal Protection clause in particular), but in a recent paper I take on the deference question -- that is, the question of the amount and type of deference Congress is owed when, in the course of legislating on matters affecting individual rights, it finds facts.

Despite some really fine recent work on deference questions more generally (in particular by Eric Berger at Nebraska, here and here), the question remains, as John McGinnis and Charles Mulaney write, "radically undertheorized."  Why?  I suspect a lot of the reticence stems from the sense that deference determinations, maybe even more than other areas of constitutional doctrine, are politically driven.  There are platitudes available to support either a deference or no deference position, and Supreme Court justices appear at times to be doing nothing more than simply picking the platitude that yields the desired outcome.  This may not be terribly surprising to public law scholars: if it's not universally accepted it's at least widely suspected that the amount of deference administrative agencies enjoy when their policies are subject to judicial review turns on how the challenged policy jibes with the reviewing judge's political predilections.  Why should it be any different with judicial review of congressional fact-findings?

But the deference question deserves more than a shrug of the shoulders and a cynical conclusion that "it's all politics."  Fact-findings provide the main opportunity for Congress to help apply the constitutional rules announced by the Court.  Even though that role raises the serious risk that Congress could use its fact-finding power to wrest from the Court the power to interpret law, a rule denying Congress any deference to its fact-findings would deprive it of any meaningful role in filling in constitutional meaning left unfilled by the Court's often-vague legal tests.  For what it's worth, the Court itself at least ostensibly recognizes a role for congressional fact-finding.  And finally, as a practical matter, such findings matter.  For example, the amount of deference the Court gives to Congress's findings supporting the Voting Rights Act's extension will likely heavily influence the result in the challenge to the VRA that's currently pending.  

So I think the deference question matters.  I understand the objection that, even if it does matter, no workable standards guide the inquiry.  In my next post I'll explain the theoretical bases for analyzing deference issues. In the subsequent post I'll discuss several deference principles I offer in the article.

Posted by Bill Araiza on November 28, 2012 at 06:08 AM in Constitutional thoughts | Permalink


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Thanks for the response, Bill, I look forward to it.

Posted by: Orin Kerr | Nov 29, 2012 12:08:31 AM

Orin: I think you're absolutely right: congressional fact-finding can in fact be sincere or cynical. I also agree that the difficulty in telling the difference causes judges to be all over the map (unless they simply give up and simply refuse to defer at all, an approach I'm not sure any justice has publicly embraced). As I'll develop in future posts in my paper I take a stab at trying to develop principles that might help courts separate the wheat from the chaff; I'd be interested in your and others' reactions.

Posted by: Bill Araiza | Nov 28, 2012 6:50:53 PM

I would think that part of the problem is that judges and Justices believe that Congressional "fact-finding" can be genuine enterprise or a bogus one. It's something like relying on legislative history: Although there are some circumstances in which legislative history accurately reflects Congressional intent, there are other circumstances in which legislative history is a purely result-oriented exercise to try to slant future judicial decisions.There's a natural tendency to want to rely on the fact-finding (or legislative history) when it seems genuine but not when it seems bogus, and yet there is no clear way to tell the difference from the legislative record. The result is a mess, with judges sometimes deferring but sometimes not without clearly articulating why.

Posted by: Orin Kerr | Nov 28, 2012 11:12:49 AM

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