NCLA Site Search

Resources

Scholars

NCLA seeks to arm those who think about the law – scholars, judges, and clerks – with the knowledge and tools they need to serve as pivotal constitutional bulwarks against the unchecked power of the Administrative State.

Why Judges Should Not Defer!

Judicial deference is a doctrine of judicial review that purports to require Article III judges to violate their oath of impartiality to yield to an administrative agency’s interpretation of either a Congressional statute or agency regulation. Since the Supreme Court first created the doctrine of Chevron deference in 1984, courts have fabricated a dozen or so different varieties of deference and deference-related doctrines, each one seemingly more problematic than the last. NCLA staunchly opposes this dirty dozen of unconstitutional thumbs on the scale of justice, and we urge Article III judges to ask themselves whether it is consistent with their oath of office to deprive Americans of their day in court before an impartial arbiter.

If Chevron stands for anything, it is “the principle that the courts will accept an agency’s reasonable interpretation of the ambiguous terms of a statute that the agency administers.”

Mead/Skidmore deference is a lesser degree of deference applied to agency interpretations “such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines.” Christensen v. Harris County, 529 U.S. 576 (2000).

So-called “super-deference” requires courts to be at their most deferential when reviewing agencies’ scientific and technical determinations.

Griggs v. Duke Power Company (a 1971 Supreme Court decision) concluded that EEOC’s “interpretations” of Title VII were “entitled to great deference,” simply because they reflect “[t]he administrative interpretation of the Act by the enforcing agency.”

In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress.

A court must defer to an agency’s own interpretation of that agency’s past adjudications.

Chevron applies to the terms of a statute, but, under Kisor/Auer/Seminole Rock, a federal court must defer to an agency’s interpretation of an ambiguous regulation that the agency has promulgated.

According to this 2013 Supreme Court case, courts should defer to agencies when reviewing agency determinations about the extent of their own powers.

In the sentencing phase of a criminal case, courts must defer to the interpretive notes contained in the commentary to the U.S. Sentencing Guidelines.

According to this doctrine, a court must defer to fact-finding by administrative adjudicatory proceedings.

Courts must defer to the agency’s published interpretation that conflicts with a prior court interpretation, even if that means reversing its own prior precedent in order to conform to the agency’s rule.

A variety of cases from the 1970s or earlier with the tests that precede and anticipate Chevron deference.

Chevron Bias

Phillip Hamburger

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.
Judicial Deference

Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges—questions concerning independent judgment and systemic bias that have not yet been adequately asked, let alone answered.

Read Article

The Rise and Rise of the Administrative State

Gary Lawson

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.

Read Article

Why the Modern Administrative State Is Inconsistent With the Rule of Law

Richard Epstein

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

What constraints, if any, does the elusive but vital conception of the rule of law place on the interpretation of the Constitution, particularly in its relationship to the rise of the administrative
state?

Read Article

Our Focus Areas

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Due Process of Law

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Scope of Authority/ Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Free Speech

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

Unreasonable Searches

The Fourth Amendment forbids warrantless searches and seizures of information, yet the Administrative State violates this right to privacy through administrative subpoenas and warrants, automated information collection devices, civil investigative demands, and “voluntary” requests for information.

Guidance Abuse

Agency guidance is easier to promulgate than formal rules and regulations, so agencies prefer to issue it. Such “guidance” supplies relatively informal indications of how an agency interprets rules and statutes. Although guidance is not permitted to bind Americans (unlike laws made by elected legislators), agencies treat guidance as binding and courts often fail to stop them.

Conditions on Spending

Administrative agencies use unconstitutional conditions on spending to regulate the conduct of grantees. Rather than rule through law, the government simply purchases submission.

Judicial Deference Cases

Our Board of Advisors

Hon. Janice Rogers Brown

Retired judge of the U.S. Court of Appeals for the D.C. Circuit
and former Associate Justice of the California Supreme Court

Hon. Janice Rogers Brown

Retired judge of the U.S. Court of Appeals for the D.C. Circuit
and former Associate Justice of the California Supreme Court

Judge of the United States Court of Appeals for the District of Columbia Circuit (retired)

Judge Brown was appointed to the United States Court of Appeals for the D.C. Circuit in June 2005. She earned her J.D. from the University of California, Los Angeles, School of Law and received a Master of Laws from the University of Virginia School of Law.

Brown served as a deputy in the Office of Legislative Counsel for the State of California, as a deputy attorney general in the California Attorney General’s Office, and as Deputy Secretary and General Counsel for California’s Business, Transportation and Housing Agency. After a short stint in private practice as a senior associate at the Sacramento law firm of Nielsen, Merksamer, Parrinello, Mueller & Naylor, Judge Brown returned to government service in 1991 as the Legal Affairs Secretary to California Governor Pete Wilson. From 1994 to 1996, she served as an associate justice of the California Court of Appeal, Third Appellate District, and from 1996 to 2005, as an associate justice of the California Supreme Court.

Brown retired from the D.C. Circuit in 2017.

Our Board of Advisors comprises renowned legal scholars, judges, government officials, and respected legal practitioners, all of whom have played pivotal roles in mediating the struggle between proper functioning of the institutions of government and upholding the individual freedoms guaranteed in the Bill of Rights.

NCLA Case Finder

Advanced Search

Our Clients

NCLA represents citizens across America who are willing to take on the government. Whether it is federal, state, or local administrative power, that takes courage and conviction.
Meet some of the bravest people we know: our clients.

Ruth Bader Ginsburg and Antonin Scalia defended civil liberties from opposite ends of the jurisprudential spectrum. Their legendary friendship glowed as a beacon of collegiality in a world increasingly clouded by partisan rancor. To perpetuate their legacy and foster a culture of civility, the New Civil Liberties Alliance founded the Ginsburg-Scalia Fellowship, a prestigious summer program for select law students exploring the denial of our core constitutional rights—freedom of expression, freedom of association, religious liberty, due process, jury trial, and freedom from unreasonable search—by the Administrative State.

Judges are encouraged to urge their future clerks and clerkship candidates to become Ginsburg-Scalia Fellows. And if you are a student looking to clerk for an Article III judge, the Ginsburg-Scalia Fellowship will serve as excellent preparation.

Fellows who complete the program receive an honorarium of $1,000.