Presidential Control, Expertise, and the Deference Dilemma

Courts reviewing agency action frequently point to superior political accountability and expertise as justifying deference to agencies. These fundamentals of deference often operate in tandem, providing distinct but complimentary reasons why courts will not substitute their judgment for that of agencies. But when courts review agency actions arising from shared regulatory space, political accountability—often expressed as presidential control—and expertise can seem at odds. How should courts respond when, for example, one agency lays claim to presidential control but another relies on expertise, and the two take inconsistent positions so that a court must choose one over the other? This Article examines this deference dilemma and suggests a means for confronting it. Overall, this analysis reveals that the expertise and presidential-control justifications for deference do not fit neatly into statutory schemes involving overlapping or competing jurisdiction, particularly when an independent agency is involved. This conclusion exposes weaknesses in both models of deference and supports the claim that—presidential direction and expertise notwithstanding—fidelity to statute and the reasoned-decisionmaking requirements remain the touchpoints of judicial review. These touchpoints are central to unlocking the deference dilemma and resolving it in a principled manner, as demonstrated by the framework developed in this Article. Approaching deference dilemmas in this way helps facilitate congressional control while recognizing the policymaking authority of the executive branch, and ultimately contributes to a norm that accounts for the roles of all three branches in administrative law

Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks to map out a better response to changed conditions than the all-or-nothing options that presently define the debate. It argues that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better address changed circumstances. Specifically, the Article calls for a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly. It calls on courts, legislators, and voters to adapt remedies so that they provide institutions of local governance with the skills and resources needed to operate fairly in an environment inexorably shaped by past discrimination and in which some effects endure

Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks to map out a better response to changed conditions than the all-or-nothing options that presently define the debate. It argues that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better address changed circumstances. Specifically, the Article calls for a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly. It calls on courts, legislators, and voters to adapt remedies so that they provide institutions of local governance with the skills and resources needed to operate fairly in an environment inexorably shaped by past discrimination and in which some effects endure

Oversight and Dispersed Power

Duke Law Journal\u27s 42nd Annual Administrative Law Symposium will focus on several important topics in administrative law today. Selected from over 80 proposals, the seven panelists explore issues pressing upon legislators, agency and Executive Branch officials, and judges, such as the politicization of agencies, the judicial review challenges posed by shared regulatory authority, and the emphasis on reason-giving in rulemaking. The participants will use both historical and empirical analysis to describe the current administrative-law landscape and prescribe alternatives for its future. Appearing: Margaret H. Lemos, moderator ; Stavros Gadinis (Berkeley Law), Ronald J. Krotoszynski, Jr. (University of Alabama), Emily Hammond Meazell (University of Oklahoma), panelists; Alex Costanza (Student-Duke Law School), closing remarks