60 Pages Posted: 29 Jul 2011 Last revised: 2 Feb 2012
Date Written: July 28, 2011
Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different agencies, and specifically a “super-deference” standard to the military. This article demonstrates that the APA’s exception for “military authority exercised in the field in time of war,” interpreted correctly, insulates core military functions from judicial review, thus removing any basis for giving the military heightened deference as a matter of course. That exception accommodates separation of powers concerns raised by judicial interference with the President’s authority as Commander in Chief, and it removes concern about courts second-guessing military expertise in particular by making actions that directly implicate that expertise unreviewable.
Keywords: Deference, Military, Administrative Procedure Act
Suggested Citation: Suggested Citation
Kovacs, Kathryn E., Leveling the Deference Playing Field (July 28, 2011). Oregon Law Review, Vol. 90, p. 583, 2011. Available at SSRN: https://ssrn.com/abstract=1895609