Study Notes on Delegation and Deference in Federal Judicial Decision-Making

INTRODUCTION

  • Supreme Court ruling regarding stay blocking Department of Labor vaccine regulation.

    • Court Majority Statement: OSHA, in its half century, has never adopted a public health regulation addressing a workplace-untethered threat. This signals a lack of historical precedent. The scope of authority claimed by the Secretary exceeds legitimate bounds.

  • Late 2021: During the COVID-19 pandemic, the Biden Administration's Department of Labor proposed a regulation requiring businesses with over 100 employees to implement a vaccine mandate or create masking/testing requirements.

    • Impact: Affects over 80 million individuals, reflecting President Biden's agenda (Goldberg 2022).

    • Following regulatory issuance, multiple organizations and states challenged the regulation in federal court, leading to circuit disagreement:

    • Fifth Circuit: Granted a stay on implementation.

    • Sixth Circuit: Found no need for a stay.

  • Supreme Court’s 6–3 conservative majority expressed skepticism regarding the rule's legal merit and alignment with typical Department of Labor and OSHA measures.

  • Different judicial outcome in a prior vaccine regulation involving the Department of Health and Human Services (HHS) requiring Medicaid and Medicare funding facilities to mandate vaccines for employees with exceptions.

    • In this case, the Supreme Court ruled the regulation fell within statutory authority provided by Congress, despite dissent from four conservative justices.

  • Themes for Discussion:

    • Delegation and statutory authority.

    • Judicial deference to agency expertise.

    • Ideological divergence among judges.

    • Judicial scrutiny in cases of “vast economic or political significance.”

DELEGATION AND DEFERENCE

  • Critical Concept: Delegation is foundational to the power agencies wield in rule-making and adjudicatory functions.

    • As per Mortenson and Bagley (2022, 2328): Many government activities derive from legislatures granting executive regulatory authority over various areas including workplace safety, pollution, and mask mandates.

  • Mechanics of Delegation: Congress delegates authority with varying statutory detail:

    • Vague statutory language can expand authority, while detailed statutes can limit it based on executive and congressional preferences, expertise, and political uncertainty (Epstein & O’Halloran 1994, Huber & Shipan 2002).

    • Nearly every congressional bill grants some authority to executive branch actors (Moe & Howell 1999).

  • Non-Delegation Doctrine: Concerns about power divisions raise the non-delegation doctrine, which holds that Congress must provide guidelines or an “intelligible principle” (Posner & Vermuele 2002, 1727) when delegating authority, failing which it may constitute unlawful delegation.

    • This doctrine was used by the Supreme Court to strike down significant FDR New Deal provisions (Davis 1969, Mortenson & Bagley 2022).

    • Whittington and Iuliano (2017) examined around 2,500 cases, highlighting that courts rarely enforce the doctrine at the federal level, and its adherence among federal judges is often deemed a “myth.”

  • Judicial Review of Delegation:

    • Courts typically assess whether authority is explicitly or implicitly delegated and the appropriateness of agency interpretations.

    • Chevron USA, Inc. v. NRDC (1984) established a two-step framework for judicial deference to agency actions:

    1. Determine if Congress ambiguously defined the legal issue.

    2. If ambiguity exists, check reasonableness of agency interpretations.

    • Implication: This marked a substantial shift favoring agency autonomy.

    • Cass Sunstein: Called Chevron a “counter-Marbury,” emphasizing agencies' authority to interpret ambiguous laws (2006, 189).

    • Post-Chevron studies show modest increases in agency win rates (Schuck & Elliot 1990).

    • Ideological congruence significantly influences decisions to apply Chevron and subsequent deference to agency interpretations (Barnett et al. 2018).

MAJOR QUESTIONS DOCTRINE

  • Chevron Step-Zero: Scholars (Merrill & Hickman 2001, Sunstein 2006) proposed an additional threshold in Chevron's analysis leading to “major questions doctrine”.

    • Requires extra scrutiny for significant agency actions, questioning Congress' intent for agencies to exercise such authority based on potential economic or policy impacts (Monast 2016).

    • Recent court cases (e.g., West Virginia v. EPA, 2022) employed this doctrine to limit agency authority based on ideological perspectives.

    • Ideological Implications: Concerns arise that the major questions doctrine signals judiciary skepticism regarding agency overreach, indicated by critiques of EPA and Biden’s loan forgiveness policy rulings.

JUDICIAL REVIEW AND ADMINISTRATIVE AGENCY DECISIONS

  • Judicial ideology plays a crucial role in judicial behavior (Bonica & Sen 2021, Murphy 1964).

    • Judges have compelling policy goals, which influence their voting on administrative agency matters.

    • Early research showed government litigants often have higher success rates in court (up to 70% by Kilwein & Brisbin 1996).

    • Supreme Court ideology can affect deference levels, especially towards substantive agency decisions (Crowley 1987).

  • Agency Structure and Decision-Making: Different agency types (e.g., cabinet vs. independent) influence judicial outcomes:

    • Cabinet agencies may reflect presidential ideology more clearly, leading to significant judicial support among ideologically aligned judges.

    • Independent agencies tend to face different judicial scrutiny, with studies indicating higher win rates for them in court due to perceived political insulation, compared to more politicized cabinet agencies.

SPECIALIZED COURTS AND EXPERTISE

  • Specialized courts represent an underexplored facet of the relationship between courts and the administrative state (Miller & Curry 2009).

    • Types of specialized courts:

    • Article I courts: Created by Congress (e.g., Tax Court).

    • Article III courts: (e.g., Court of Appeals for the Federal Circuit).

  • Advocates cite benefits of court specialization:

    • Higher quality decisions due to judges' subject matter expertise (Baum 2011).

    • Enhanced efficiency and uniformity in law interpretation.

  • Criticism of Specialization: Risks of capture by interest groups and loss of judicial independence. Article I judges lack protections like lifetime tenure, increasing their susceptibility to political pressures.

JUDICIAL DECISION-MAKING AND ADMINISTRATIVE LAW JUDGES

  • Administrative Law Judges (ALJs) straddle the roles of adjudicators and bureaucrats, leading to potential conflicts in their decision-making authority.

    • Two types of judges: ALJs (subject to formal APA rules) and Administrative Judges (AJs) (more varied procedures).

  • Increased empirical focus is needed on ALJs compared to Article III judges, given a higher prevalence of ALJs in agencies.

  • **Research Insights:

    • Studies indicate ideological influence on ALJ decisions in the NLRB and EPA sectors but demonstrate mixed findings on presidential influences.

    • The perception of ALJ independence may lead to a judicial preference for deferring to their decisions due to presumed experience and stability.