Deferring to the Rule of Law: A Comparative Look at United States Deference Doctrines

Abstract

If the rule of law is to prevail, all branches of government — including administrative agencies — must embrace it. A central tenet of the rule of law is judicial independence, which requires that the judiciary remain “distinct from both the legislative and Executive.” Yet U.S. courts often defer to agencies’ interpretations of statutes or regulations using one of three deference doctrines: Auer, Chevron, or Skidmore. These doctrines act as an implicit delegation of the courts’ authority to “say what the law is” to administrative agencies, often depriving the courts of the opportunity to adopt the best interpretation of a statute or regulation. The U.S. Supreme Court has begun to question the wisdom of these doctrines. But some scholars, including one of us, maintain that some level of deference is inevitable and desirable to prevent judges from making policy decisions. In this Article, we ask: do these doctrines violate the rule of law and, if so, are they worth preserving to effectuate the goals of the modern regulatory state?

Keywords: Chevron, Skidmore, Auer, Seminole Rock, Administrative Law, Ukraine, Australia, Rule of Law