Fixing Deference: Delegation, Discretion, and Deference Under Separated Powers

Abstract

Deference doctrines that set the terms for judicial review of administrators’ actions are complicated because concepts critical to deference decisions often are misunderstood. Although generally viewed as free-standing matters, deference questions conceptually are the third part of three related inquiries, preceded by questions of the constitutionally permissible delegation of authority and the discretion granted to specific officials. The scope and nature of lawfully conferred discretion—determined by the first two inquiries—dictate the appropriate scope and nature of deference in judicial review of officials’ actions.

Power—the nature of distinctive powers constitutionally assigned to different government officials to be exercised in different ways—is the key to resolving these issues appropriately. Constitutional design reflects interests in limiting discretionary authority and separating different kinds of authority. Conflating powers granted to executive officials with those of legislative or judicial officials—often done in the characterization of official acts—misleads discussions of deference.

Anchoring analysis in constitutionally separated powers and limited provision for discretionary power and using language that more accurately reflects divisions among tasks given to different government officials provides an avenue for better understanding the three related topics and for unravelling the tangle of deference decisions.

Keywords: Separation of Powers, Constitutional Law, Administrative Law, Judicial Review, Deference, Nondelegation, Discretion, Executive Power, Judicial Power

JEL Classification: K1, K40, H1, H11, K23