Presidential Control, Expertise, and the Deference Dilemma

Abstract:     
Courts reviewing agency action frequently point to superior political accountability and expertise as justifying deference to agencies. These fundamentals of deference often operate in tandem, providing distinct but complimentary reasons why courts will not substitute their judgment for that of agencies. But when courts review agency actions arising from shared regulatory space, political accountability — often expressed in the current fashion as presidential control — and expertise can seem at odds. How should courts respond when, for example, one agency lays claim to presidential control but another relies on expertise, and the two take inconsistent positions so that a court has to choose one over the other? This Article examines this “deference dilemma” and suggests means for confronting it. Overall, this analysis reveals that the expertise and presidential-control justifications for deference do not fit neatly into statutory schemes involving overlapping or competing jurisdiction, particularly when an independent agency is involved. This conclusion exposes weaknesses in both models of deference and supports the claim that — presidential direction and expertise notwithstanding — fidelity to statute and the reasoned-decisionmaking requirements remain the touchpoints of judicial review. These touchpoints are central to unlocking the deference dilemma and resolving it in a principled manner, as demonstrated by the framework developed in this Article. Approaching deference dilemmas in this way helps facilitate congressional control while recognizing the policymaking authority of the executive branch, and ultimately contributes to a norm that accounts for the roles of all three branches in administrative law.

Number of Pages in PDF File: 48

Keywords: deference, presidential control, expertise, nuclear, environ/mental, administrative law, judicial review

Accepted Paper Series