Two Concepts of Deference
71(4) Administrative Law Review (2020), Forthcoming
43 Pages Posted: 13 Jun 2019 Last revised: 4 Nov 2019
Date Written: May 26, 2019
Deference is a fundamental concept in legal discourse, in general, and in administrative law, in particular. Rivers of ink have been spilled over the meaning of ‘Chevron deference,’ but only scant attention has been given to the meaning of the concept of deference — as a subject worthy of discussion of its own. The purpose of this Article is to fill this gap by explaining the meaning of deference as a key to understanding the principal doctrines of administrative law.
My main argument is that deference should be analyzed and understood in the context of the disagreement between the deferrer (i.e., the court) and the deferee (i.e., the administrative agency making the initial determination). The analysis of the relations between deference and disagreement enables me to distinguish between two fundamental modes of deference. The first is when the deferrer examines the contents of the deferee's decision on its merits and decides, notwithstanding the disagreement with it, to defer. I term this mode of decision-making disagreement deference. In the other mode, the deferrer, when deciding to defer, rather than examining the contents of the deferee's decision chooses to avoid such an examination (wholly or partly). I term this mode of deference avoidance deference. Accordingly, in disagreement deference, content-independent considerations are weighted and balanced against all other considerations at the same time and on the same level. In avoidance deference, on the other hand, content-independent considerations enter the scene in a preliminary stage and affect the way by which the deferrer looks at all other considerations. I argue that the distinction between these two modes of deference is inherent to the idea of deferring. Accordingly, this distinction is fundamental to the understanding of the concept of deference.
I further suggest that the division between these two modes of deference can serve as a key for understanding the developments of administrative law in this area. I demonstrate this on two central questions regarding the doctrines of deference. The first is the distinction between Chevron and Skidmore deference. I argue that — notwithstanding doubts raised by judges and scholars — these doctrines reflect two clearly distinct modes of deference. While Skidmore deference is disagreement deference — Chevron deference should be understood as a typical process of avoidance deference. Hence, the distinction between Chevron and Skidmore deference cannot be blurred or underestimated. The second question is whether Chevron consists of two steps or only one step — as some in the literature have argued. I demonstrate that, as a typical process of avoidance disagreement, the Chevron test is inherently divided into two distinct steps.
Keywords: Administrative Law, Deference, Chevron
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