Final Thoughts on Deference, and Signing Off

            In my last three posts (here, here and here) I’ve tried to make the argument for a principled approach to what I’ve called “the deference question.”  The challenge is to craft meaningful rules that sensibly reflect our understanding of the proper roles of Congress and the courts, and that are both flexible enough to accommodate different situations and rigid enough to constrain judges’ temptations to validate findings then like and invalidate those they don’t.

            It’s understandable to feel unconvinced by my analysis.  Indeed, at the conclusion of my paper I caution that courts likely choose underlying judicial doctrine in part because of the role the chosen rules would allocate to Congress.  For example, consider U.S. v. Morrison, where the Court announced that non-economic criminal activity was likely simply beyond Congress’s commerce power.  That doctrinal choice was likely motivated, at least in part, by a concern that allowing Congress to find facts uncovering a connection between criminal activity and interstate commerce would allow Congress to regulate whenever it wanted by “finding” convenient facts.  If in fact the Court’s choice was motivated by a desire to exclude a role from congressional fact-finding, then it’s easy to despair of the Court’s willingness to engage in a principled dialogue with Congress about the latter’s fact-finding role.

The hope, though, is that deference principles of the type I suggested in my paper would give the Court comfort that acknowledging a role for congressional factfinding would not amount to giving away the store.   Of course, taking this approach would require the Court to engage in principled review of congressional factfinding.  That review can sound disrespectful, and inappropriate for a court.  But if the alternative is simply denying any congressional in some regulatory areas, then it might be worth the effort, as long as the deference principles are good ones.  Hence the importance, I think, of this project.

That’s it for me; I’ve overstayed my stint long enough.  Good luck on exams (writing, taking and grading) and be safe in the holidays.  And thanks, as always, to Dan and the entire Prawfs community.