Deference Determinations and Stealth Constitutional Decision Making

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

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.