Fixing Deference: Delegation, Discretion, and Deference under Separated Powers
Deference doctrines that set the terms for judicial review of administrators’ actions are needlessly complicated. The complications suggest that concepts critical to deference decisions often are misunderstood. Although generally viewed as free-standing matters, deference questions conceptually are the third part of three related inquiries. What deference courts owe to administrative decisions requires, first, understanding the constitutionally permissible delegation of authority to administrative officials and, second, the scope and type of discretion granted by law to specific officials. The scope and nature of lawfully conferred discretion—determined by the first two inquiries—should dictate the appropriate scope and nature of deference in judicial review of officials’ actions. That is, what is being deferred to by judges and what rules should guide that deference cannot be framed coherently without understanding what decisions can be entrusted to administrative officers and what decisions have been entrusted to them.
Power—the nature of distinctive powers constitutionally assigned to different government officials to be exercised in different ways—is the key to resolving these issues appropriately. Constitutional design reflects interests in limiting discretionary authority and separating different kinds of authority. Conflating powers granted to executive officials with those of legislative or judicial officials—often done in the characterization of official acts—misleads discussions of deference.
In particular, much of the difficulty in deference cases comes from confusion of the roles of administrative officials’ decisions with those of courts. Courts have primary authority over interpreting or construing legal instructions, while administrative officials are responsible for making decisions on how to put laws’ instructions into practical applications (implementing the laws).
Anchoring analysis in constitutionally separated powers and limited provision for discretionary power and using language that more accurately reflects divisions among tasks given to different government officials provides an avenue for better understanding the three related topics and for unravelling the tangle of deference decisions.