Discarded Deference: Judicial Independence in Informal Agency Guidance


In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law.

This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel the views of a court and finding that deference is unnecessary when its views differ from those of an agency, permitting the substitution of its judgment for that of an agency with expertise in the area. Statutory schemes, however, have become increasingly complex with competing policy interests. When dealing with multifaceted, competing policy interests, administrative agencies can consider a particular issue in the context of the statutory scheme while courts consider a particular issue in the context of the precise issue originating in litigation.

Courts have much less familiarity with complex statutory schemes with only infrequent ability to understand the intricacies of a specific aspect of that scheme as may arise through litigation. Agencies, on the other hand, are focused on the resolution of specific issues, but in the context of its impact on an entire statutory scheme because the responsibility of an agency is to administer and enforce a statutory scheme over which it contributes substantial expertise.

Agencies make policy choices and courts make decisions. Those decisions should respect the policy choices considered by agencies in their capacity as experts in a specialized area of law. The manner in which those policy choices are respected is through a meaningful deference standard to agency interpretations.


Administrative Law | Constitutional Law | Tax Law

Date of this Version

April 2006