Is Judicial Deference to Agency Fact-Finding Unlawful?

40 Pages Posted: 13 May 2017 Last revised: 9 Aug 2022

See all articles by Evan D. Bernick

Evan D. Bernick

Northern Illinois University - College of Law

Date Written: May 12, 2017


Judicial deference to fact-finding by federal administrative agencies took root and developed alongside the modern administrative state. This fact deference is of great consequence to people who are charged with regulatory violations by agencies. Such violations are often initially adjudicated, not in federal courts by Article III judges, but in administrative proceedings by employees of the agency that is seeking to impose fines or other penalties. While review can later be sought in federal court, judges broadly defer to the factual findings made by agency adjudicators in the course of administrative proceedings—and those findings can be determinative of whether a regulatory violation has taken place. Although fact deference was initially constructed by the Supreme Court, it now has the express command of the Administrative Procedure Act of 1946 (APA) behind it. Section 706 (2)(E) of the APA provides that fact-finding in formal administrative adjudication may be overturned by reviewing courts only if an agency’s factual determinations are found to be "unsupported by substantial evidence."

Yet, although longstanding administrative law doctrines that command judges to defer to agency interpretations of statutes and regulations have received intense academic and judicial scrutiny in recent years, fact deference has received comparatively little attention. This Article provides an overview of the origins, development, and present state of fact deference and subjects fact deference to a thorough constitutional critique, focusing on Article III and the Fifth Amendment's Due Process of Law Clause. It concludes that in cases involving administrative deprivations of core private rights to "life, liberty, or property," fact deference violates Article III's vesting of "[t]he judicial power" in the federal courts; constitutes an abdication of the duty of independent judgment that Article III imposes upon federal judges; and violates the Fifth Amendment by denying litigants "due process of law," which requires (1) judicial proceedings in an Article III court prior to any individualized deprivation of "life, liberty, or property"; and (2) fact-finding by independent, impartial fact-finders. It then proposes an alternative: de novo determination of questions of fact in Article III courts prior to any binding judgment that deprives people of core private rights.

Keywords: administrative law, Constitution, history, originalism, Adrian Vermeule, Philip Hamburger, Administrative Procedure Act, administrative adjudication, due process, Magna Carta, fiduciary government

JEL Classification: K10, K30, K39

Suggested Citation

Bernick, Evan D., Is Judicial Deference to Agency Fact-Finding Unlawful? (May 12, 2017). Georgetown Journal of Law & Public Policy, Forthcoming, Available at SSRN:

Evan D. Bernick (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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