My “Puzzling” Theory of Deference
My worst nightmare (which, admittedly, is a little bit different from the nocturnal terrors feared by most people) has just come to pass. Yesterday Professor Larry Solum extracted on his Legal Theory blog a piece from a recent article of mine and labelled it “puzzling”.
Here is the offending passage (from this article):
What Chevron asks a reviewing court to determine is whether, taking all relevant statutory provisions into account — including those establishing the agency in question, setting out its powers and field of operation and delegating policy-making responsibilities to it — deference would be appropriate, because Congress can be said to have intended it. Indeed, I have argued that deference to administrative interpretations of law can be justified “based on the…constitutional principle that courts must give effect to legislative intent”,58 taking into account the scope of the delegation of authority and also practical justifications for deference, including agency expertise.
I would prefer “iconoclastic” to “puzzling”. Let me try to explain. The passage in question referred to my 2012 book, A Theory of Deference in Administrative Law: Basis, Application and Scope (2012), where in chapters 2 and 3 I set out a basis on which deference by courts to administrative decision-makers can be justified.
The following extract from the introduction to Chapter 3 is the pithiest explanation of how I sought to establish a “basis” for deference (pp.70-72), citations omitted):
Apart from demonstrating the extent of the power delegated, a proper consideration of the relevant statutory provisions will indicate what level of expertise was thought to be a necessary characteristic of the delegated decision-maker, the complexity of the problem the legislature sought to solve by delegating, the democratic legitimacy required of the delegated decision-maker and the procedural legitimacy contemplated by the legislature.
Consistent with their obligation to give effect to legislative intent, if, by reference to the relevant statutory provisions, it can plausibly be inferred that the practical justifications influenced the decision to delegate power, courts ought to look to the practical justifications in determining the appropriate degree of curial deference to accord to delegated decision-makers. It follows from my reliance upon legislative intent that only those practical justifications that can be ascertained by reference to the statute are relevant. Accordingly, reviewing courts are not required to ‘engage in legislative mind reading’ or to ‘recover actual legislative reasons for . . . delegation’.5 Their task in this context is to ascertain by reference to the statute, and the statute alone, what plausibly can be taken to have influenced the legislative decision to delegate power. It will thus be necessary to outline why the practical justifications might have influenced the legislative decision to delegate power to a body other than a court, to assist in clarifying what reviewing courts ought to be looking for in a statute and why they ought to be doing so. But it is only where a proper consideration of the relevant statutory provisions indicates that the practical justifications – individually or collectively – influenced the decision to delegate power that reviewing courts ought to take them into account. The argument based on practical justifications thus complements the argument based on delegation of power, because the extent of the delegation of power and the practical justifications can only be ascertained by means of a proper consideration of the relevant statutory provisions.
I attempted, however, to remain neutral as between competing schools of statutory interpretation. I made clear in the book that in setting out my approach to deference I was not taking sides in the pitched battles between textualists and purposivists over the correct approach to statutory interpretation. See p. 43 (citations omitted):
Accordingly, when I use the term legislative intent, it is the ‘formal specification of the act’ to which I refer, not to the literal intentions of legislators. It follows that the possibly base motives of legislators are not relevant: ‘We are not concerned with anything subjective. We do not delve into the mind of legislators or their draftsmen, or committee members.’ What is relevant is the language of the statute. As Lord Reid put it, courts seek ‘the meaning of the words which Parliament used’. Those who remain cynical should note how it is possible, even in respect of statutes which are enacted under the influence of those with base motives, to adduce neutral reasons for enactment. Giving effect to these ‘public-regarding’ reasons would forestall any remaining objection that reliance on legislative intent could cause courts to give effect to the base motives of legislators.3
Whether legislative intent is to be found in the written words of the statute, the overall statutory structure, the level of ‘fit’ with previous decisions and the legal system as a whole, or in the legislative debates is irrelevant for present purposes. If members of different schools of statutory interpretation would reach different conclusions applying my doctrine of curial deference, that merely indicates that my doctrine is neutral as between schools of statutory interpretation. My argument is the sort of first-order theoretical argument that does not aim ‘to cut between the alternative interpretative approaches that are available to judges at the mundane level of statutory interpretation’, although it does render unnecessary reliance on detailed background assumptions, presumptions and principles.
It is fair to say that this is unusual, as American protagonists over Chevron tend indeed to go into battle armed with a sophisticated theory of statutory interpretation. Claiming that an approach to deference can be developed without reference to a theory of statutory interpretation, is (I would mischievously say) “iconoclastic”.
As to what a (non-Chevron) deferential approach to statutory interpretation might look like, see my “Unreasonable Interpretations of Law“, and the decision of the Supreme Court of Canada in Green v Law Society of Manitoba  1 SCR 360 (noted here).
This content has been updated on June 7, 2019 at 11:49.