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Discarded Deference: Judicial Independence in Informal Agency Guidance

45 Pages Posted: 5 Apr 2007 Last revised: 21 Apr 2008

Christopher M. Pietruszkiewicz

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center


The Supreme Court resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within the traditional role of the courts as sole interpreters of the law.

As implemented, this 1940s decision provides deference to the views of administrative agencies only as a matter of judicial discretion, finding deference when the views of an agency parallel the views of a court and finding that deference is unnecessary when its views differ from those of an agency. The result is the substitution of the judgment of a court for that of an agency with expertise in the area.

Statutory schemes, however, have become increasingly complex with competing policy interests. When dealing with multifaceted, competing policy interests, administrative agencies can consider a particular issue in the context of the statutory scheme while courts consider a particular issue in the context of the precise issue originating in litigation. Courts have much less familiarity with complex statutory schemes with only the infrequent occurrence to consider the intricacies of a specific aspect of that scheme as may arise through litigation. Agencies, on the other hand, are focused on the resolution of specific issues, but in the context of its impact on an entire statutory scheme based on the responsibility of an agency to administration and enforcement obligations.

Agencies make policy choices and courts make decisions. Those decisions should respect the policy choices considered by agencies in their capacity as experts in a specialized area of law. The manner in which those policy choices are respected is through a meaningful deference standard to agency interpretations, not through an intermediate standard predisposed to de novo judicial review based on outdated factors.

Keywords: deference, internal, revenue, service, administrative, tax, policy, agencies, blackstone

JEL Classification: K34

Suggested Citation

Pietruszkiewicz, Christopher M., Discarded Deference: Judicial Independence in Informal Agency Guidance. Tennessee Law Review, Vol. 74, p.1, 2006. Available at SSRN:

Christopher Pietruszkiewicz (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States


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