Avoiding Deference Questions

31 Pages Posted: 13 Sep 2009

See all articles by Garrick B. Pursley

Garrick B. Pursley

Florida State University - College of Law


In Riegel v. Medtronic, Inc., the Supreme Court held that FDA approval of a medical device preempted state common law tort duties. But the Court did not clearly resolve the substantial question, of administrative and constitutional law, of whether courts owed deference to agency interpretations of the preemptive scope of the statutes they administer.

This article argues that Riegel can be read as not simply deferring this deference question but as part of a trend in recent decisions favoring a rule directing courts to avoid deciding it. The Article canvasses the various rationales for constitutional avoidance rules and argues that the rule the Court appears to have implicitly adopted is justified because it allows courts to resolving a difficult constitutional question - the question of how constitutional norms allocate, among Congress, the Executive, and federal courts, the responsibility for police the borders between federal and state power and between legislative and executive authority. The Article then explains how the proposed deference-avoidance rule would work in practice, with respect to both Chevron deference and Skidmore deference.

Keywords: Search Papers, Constitutional Law, Preemption, Federalism, Administrative Law, Deference, Chevron, Skidmore

Suggested Citation

Pursley, Garrick, Avoiding Deference Questions. Tulsa Law Review, Vol. 44, No. 3, pp. 557-586, 2009, U of Texas Law, Public Law Research Paper No. 161, Available at SSRN: https://ssrn.com/abstract=1472423

Garrick Pursley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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