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Deference Determinations and Stealth Constitutional Decision Making

69 Pages Posted: 21 Jul 2012  

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: July 20, 2012


Courts deciding constitutional cases frequently have to make deference determinations – that is, decisions about whether to respect a political branch’s factual findings and policy judgments due to that branch’s institutional superiority. The U.S. Supreme Court’s approach to a wide range of these determinations, however, is inconsistent and under-theorized. Indeed, the Court’s difficulties with deference determinations mirror broader failures to resolve carefully and consistently a number of stealth determinations that recur in constitutional cases but fall outside the black-letter doctrinal framework.

Rather than relying on pithy platitudes about each governmental branch’s strengths and weaknesses, courts should examine the actual behavior and processes of the relevant governmental institution before deciding whether deference is appropriate. This contextual, institutional approach would provide better incentives for Congress and administrative agencies to craft policy utilizing their expertise and reinforcing their political accountability. It would also offer a more careful, rigorous model for courts approaching other extra-doctrinal determinations, thus improving the legal status of both deference determinations themselves and stealth constitutional determinations more generally.

Keywords: deference, constitutional decision making, institutional choice, administrative law, expertise, democratic legitimacy

Suggested Citation

Berger, Eric, Deference Determinations and Stealth Constitutional Decision Making (July 20, 2012). Iowa Law Review, Vol. 98, 2013. Available at SSRN:

Eric Berger (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402 472-1251 (Phone)

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