In my last post I suggested an approach to the question of judicial deference to congressional factfinding that turned ultimately on whether the deference claim was grounded in congressional authority or expertise. I argued that authority-based deference was very roughly analogous to the deference accorded administrative agency statutory interpretations in Chevron, while expertise-based deference very roughly paralleled Chevron’s companion, so-called “Skidmore” deference. I also suggested that the choice between these deference claims itself turned on the nature of the fact for which deference was claimed: expertise-based claims were appropriate when Congress demands deference for empirical findings, while authority was the proper foundation for the deference claim when the fact at issue was more value-based.
Do these distinctions get us anywhere in answering the deference question? I like to think that it advances the ball, even if, as I freely concede, any analysis of a concept as vague (and often outcome-determinative) as “deference” is subject to manipulation. The devil really is in the application. Nevertheless, these distinctions suggest some common-sense approaches to the deference question. If you’re interested in more than the cursory analysis below, you can check out the long form version