The Deference Question, Part II: Toward A Theory of Deference

My first post on what I call “the deference question” attempted to make the case for the question’s importance, but also noted the inadequacy of the Court’s analysis of the question.  This post sets forth a very truncated version of my analysis of the question.  (A more detailed version of this analysis can be found in a paper that will be published next year.)  My next post will use these theoretical insights to derive several principles of deference.  I’ll then conclude with a final thought about the role substantive legal doctrine plays in this question.

Since I teach administrative law, a natural place for me to go when I started thinking about this question was the jurisprudence governing agency interpretations of statutes – in particular, the standards set forth in the Skidmore and Chevron cases.  Of course the context is quite different: agencies versus legislatures, and law interpretations versus fact findings.  But the Court’s ongoing discussion of the two conceptually different deference standards represented by Skidmore and Chevron nevertheless provide helpful grist for considering the deference question in the context of congressional fact-finding.  In particular, Chevron’s grounding in authority (Congress’s presumed delegation to the agency to decide the interpretive question) contrasts with Skidmore’s grounding in agency expertise – a grounding that, while not expressly stated in Skidmore, seems clear from the context of the case and the Court’s analysis.

The distinction implied by these two different justifications matters when one adds to the analysis the different types of fact-findings for which Congress may demand deference.  There are, of course, a million different ways to taxonomize facts and fact-findings. In the paper I propose three very rough categories: empirical facts, evaluative facts, and value-based facts.  While none of these categories is crystal-clear, empirical facts are at least conceptually pretty straightforward.  Value-based facts are those that are based primarily on normative or ideological judgments.  Evaluative facts combine elements of empirical and value-based facts.  For example, a finding that a deregulatory policy will benefit the economy counts as such a fact, because, while it is based in part on empirical facts, the finding is derived by filtering empirical facts through the prism of the finder’s ideological precommitments, here, about how markets work.  (An evaluative fact doesn’t necessarily have to be predictive, though.)

The type of fact at issue combines with the authority and expertise justifications for deference to suggest some preliminary thoughts about the deference question.  As a general matter, empirical findings should command deference, if at all, based on congressional expertise.  (There are ways to test the expertise claim, as I’ll explain in the next post.)  At the other extreme, deference demands for value-based, and at least some evaluative, findings should rest on authority grounds.  In this case, Congress’s authority to make such normative judgments stems from its electoral legitimacy and national representation, qualities which give it unique authority to speak for the nation’s moral values when finding facts.  As with its expertise-based deference claims, there are also limits to Congress’s authority justification for deference.

Does this analysis suggest broad congressional power?  Yes.  Are there limits?  As I’ll explain in the next post, which sets forth some concrete deference principles, there are.