Deference Determinations and Stealth Constitutional Decision Making

Author:Eric Berger
Position:Associate Professor of Law, University of Nebraska College of Law
Pages:465-533
SUMMARY

Courts deciding constitutional cases frequently have to make deference determinations -that is, decisions about whether to respect a political branch’s factual findings and policy judgments because of that branch’s institutional superiority. The U.S. Supreme Court’s approach to a wide range of these determinations, however, is inconsistent and undertheorized. Indeed, the Court’s difficulties with ... (see full summary)

 
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465
Deference Determinations and Stealth
Constitutional Decision Making
Eric Berger
ABSTRACT: Courts deciding constitutional cases frequently have to make
deference determinations—that is, decisions about whether to respect a
political branch’s factual findings and policy judgments because of that
branch’s institutional superiority. The U.S. Supreme Court’s approach to a
wide range of these determinations, however, is inconsistent and under-
theorized. Indeed, the Court’s difficulties with deference determinations
mirror broader failures to resolve carefully and consistently a number of
“stealth” determinations that recur in constitutional cases—determinations
that fall outside the black-letter doctrinal framework but can still greatly
impact a case’s outcome.
Rather than relying on pithy platitudes about each government branch’s
strengths and weaknesses, courts should examine the actual behavior and
processes of the relevant governmental institution before deciding whether
deference is appropriate. This contextual, institutional approach would
provide better incentives for Congress and administrative agencies to craft
policy utilizing their expertise and reinforcing their political accountability.
It would also offer a more searching, rigorous model for courts approaching
other extra-doctrinal determinations, thus improving the legal status of both
deference determinations themselves and stealth constitutional
determinations more generally.
Associate Professor of Law, University of Nebraska College of Law. I thank Ginger
Anders, Bill Araiza, Anne Duncan, Greg McLawsen, Richard Moberly, Eric Segall, Steve
Willborn, Omaid Zabih, Saul Zipkin, and the participants at the Constitutional Law Colloquium
at Loyola Chicago, Big Ten Junior Law Faculty Workshop, and Southeastern Association of Law
Schools Conference Panel on Deference for very helpful comments on earlier drafts. Thanks
also to Lori Hoetger and Erick Reitz for superb research assistance; to Vida Eden for very
helpful assistance; and to Kris Lauber, Stefanie Pearlman, and the Schmid Law Librarians for
tremendous assistance locating sources. Finally, I thank Joe Fraioli, Andrea Krogstad, Alex
Kron, and the other editors of the Iowa Law Review for splendid and meticulous editorial
assistance. A McCollum Research Grant helped support the research for this Article. Remaining
errors are mine.
466 IOWA LAW REVIEW [Vol. 98:465
INTRODUCTION ...................................................................................... 467
I. STEALTH DEFERENCE DETERMINATIONS ............................................... 472
A. THREE BRANCHES OF JUDICIAL DEFERENCE: LEGISLATIVE,
ADMINISTRATIVE, AND “SPECIAL CONTEXTS ..................................... 472
1. Deference to Congressional Factual Findings ..................... 472
2. Deference to Agency Action .................................................. 479
a. Deference to Agency Epistemic Authority ............................... 479
b. Deference to Agency Political Authority ................................ 482
3. Deference to Special Government Institutions and in
Special Contexts ..................................................................... 485
a. Prisons as Special Government Institutions.......................... 485
b. The Special Context of National Security ............................. 487
B. INTERACTIONS WITH THE TIERS OF SCRUTINY .................................... 492
C. DEFERENCE DETERMINATIONS, STEALTH CONSTITUTIONAL
DECISION MAKING, AND THE STATUS OF LAW .................................... 494
II. DEFERENCE DETERMINATIONS AND INSTITUTIONAL ANALYSES ............. 498
A. THE INSTITUTIONAL-ANALYSIS APPROACH ........................................ 498
B. INSTITUTIONALLY BASED DEFERENCE DETERMINATIONS .................... 501
1. Institutional Analysis of Congressional Fact-Finding ........... 501
2. Institutional Analysis of Administrative Action .................... 505
a. Institutional Analysis of Agency Epistemic Authority ........... 505
b. Institutional Analysis of Agency Political Authority ............. 510
3. Institutional Analysis of Special Governmental
Institutions and Governmental Institutions Acting in
Special Contexts ..................................................................... 514
C. THE INSTITUTIONAL ANALYSIS IN PRACTICE ...................................... 518
III. ADVANTAGES AND LIMITATIONS ............................................................ 520
A. ADVANTAGES OF INSTITUTIONAL ANALYSIS ........................................ 520
1. Incentivizing Responsible Law Making ................................ 520
2. Promoting Democracy ........................................................... 522
3. Promoting Legal Consistency and Predictability ................. 523
4. Encouraging Judicial Candor ................................................ 525
B. THE (LIMITED) LIMITATIONS OF INSTITUTIONAL ANALYSIS ................ 527
1. The Difficulties of Calibrating Deference ............................ 527
2. Potential Doctrinal Obstacles ................................................ 528
3. The Difficulties of Avoiding Value-Based Judging ............... 529
CONCLUSION ......................................................................................... 532
2013] DEFERENCE DETERMINATIONS 467
INTRODUCTION
In Board of Trustees v. Garrett, a well-known, contentious decision, the
U.S. Supreme Court invalidated provisions of the Americans with Disabilities
Act (“ADA”), which authorized state employees to recover money damages
from their state employers for violations of the Act.1 Congress had sought to
abrogate the states’ sovereign immunity from such lawsuits pursuant to its
power under Section 5 of the Fourteenth Amendment.2 In so doing,
Congress made factual findings regarding the pervasiveness of
discrimination against individuals with disabilities.3 When the Court struck
down that abrogation of sovereign immunity, it rejected the relevance of
those findings, faulting Congress for not showing enough evidence of state
discrimination against the disabled.4 The full doctrinal picture is, of course,
more complicated, but the Court was decidedly undeferential to Congress
despite the factual record it had gathered.
The Court’s approach to evaluating congressional findings, however, is
inconsistent, both in the Section 5 context and more generally. Indeed, just
two years after Garrett, the Court in Nevada Department of Human Resources v.
Hibbs was far more respectful of Congress’s findings in upholding the Family
and Medical Leave Act’s (“FMLA”) abrogation of state sovereign immunity.5
Breaking from Garrett’s undeferential approach, Hibbs emphasized the
evidence Congress had amassed and found it sufficient to “justif[y]
Congress’ passage of prophylactic § 5 legislation.”6
The FMLA findings the Court accepted in Hibbs, however, seem quite
similar to the ADA findings rejected in Garrett. Both records, for instance,
relied heavily on private-sector labor statistics, yet the Court did little to
explain why such facts were inadequate in Garrett but sufficient in Hibbs.7 In
reality, the discrepancy is best explained not by Congress’s findings, but
rather by doctrinal differences involving the standard of review for the
underlying discrimination Congress sought to prevent.8 But while those
differences might help justify the divergent outcomes in the two cases, they
neither reconcile the Court’s varying degrees of deference to congressional
fact-finding nor justify the Court’s failure to explain those different levels of
deference.
1. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001).
2. Id. at 363–64.
3. Id. at 369 (quoting 42 U.S.C. § 12101(a)(2) (2000)).
4. See id. at 370.
5. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).
6. Id. at 730.
7. See id. at 730 n.3 (conceding that Congress’s findings addressed “policies in the private
sector,” but contending that such policies “differ[] little from those offered private sector
employees”).
8. See infra notes 64–65 and accompanying text.

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