5.67AgencyRulemaking.pptxGovernmental Safety Nets
1
Governmental Safety Nets
A social safety net is a collection of services provided by the state or other institutions such.
This could include welfare, unemployment benefit, universal healthcare, right to healthcare, free education, right to housing, legal aid, victims' rights, mutual funds, superfund for pensioners and veterans, workers compensation, severance package, consumer protection, social credit, private electricity, homeless shelters, and sometimes subsidized services such as public transport, which prevent individuals from falling into poverty beyond a certain level.
A practical example of how the safety net works would be a single mother with several children, unable to work.
By receiving money from the government to support her children, along with universal health care and free education, she can give her children a better chance at becoming successful members of society, rather than be caught up in the hopelessness of extreme poverty.
In a sense the formal process of administrative law that have developed out of several decades of administrative practice and legal challenges can be looked on as a social or governmental safety net.
This process is sometimes referred to as the black letter law of public administration.
These formal procedures are:
Agency rule making;
Administrative adjudication;
Judicial review of administrative activity.
2
Rulemaking
In administrative law, rule-making is the process that executive and independent agencies use to create, or promulgate, regulations.
In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking
Legislatures rely on rulemaking to add more detailed scientific, economic, or industry expertise to a policy—fleshing out the broader mandates of authorizing legislation.
For example, typically a legislature would pass a law mandating the establishment of safe drinking water standards, and then assign an agency to develop the list of contaminants and safe levels through rulemaking.
The rise of the rulemaking process itself is a matter of political controversy.
Many find that obscure and complex rulemaking tends to undercut the democratic ideal of a government that is closely watched by and accountable to its citizens
https://en.wikipedia.org/wiki/Rulemaking
3
Purposes of Rulemaking
Although executive agencies are usually charged with executing, not promulgating a regulatory scheme, the breadth and depth of regulation today renders it difficult, if not impossible, for legislatures to specify the details of modern regulatory schemes. As a result, the specification of these details are mostly delegated to agencies for rulemaking.
Common purposes of rulemaking include:
Adding scientific expertise. For example, in the U.S., the Federal Food, Drug, and Cosmetic Act outlaws the sale of adulterated or impure drugs. The act requires that the Department of Health and Human Services promulgate regulations establishing which laboratory tests to use to test the purity of each drug.
Adding implementation detail. Legislation on automobile fuel efficiency, for example, often delegates the development of the actual engine tests used to calculate 'city mileage' and 'highway mileage'.
Adding industry expertise. The U.S. Clean Air Act and Clean Water Act require the United States Environmental Protection Agency to determine the appropriate emissions control technologies on an industry-by-industry basis.
Adding flexibility. More detailed regulations allow for more nuanced approaches to various conditions than a single legislative standard could. Moreover, regulations tend to be more easily changed as new data or technologies emerge.
Finding compromise. In some cases, a divided legislature can reach an agreement on a compromise legislative standard, while each side holds out hope that the implementing regulations will be more favorable to its cause.
4
The Rulemaking Process
Rulemaking processes are generally designed to ensure that
The public is informed of proposed rules before they take effect;
The public can comment on the proposed rules and provide additional data to the agency;
The public can access the rulemaking record and analyze the data and analysis behind a proposed rule;
The agency analyzes and responds to the public's comments;
The agency creates a permanent record of its analysis and the process;
The agency's actions can be reviewed by a judge or others to ensure the correct process was followed.
5
Under the APA, rulemaking would contain these steps
Legislation. The U.S. Congress passes a law, containing an organic statute that creates a new administrative agency, and that outlines general goals the agency is to pursue through its rulemaking.
Similarly, Congress may prescribe such goals and rulemaking duties to a pre-existing agency.
Advance Notice of Proposed Rulemaking. This optional step entails publishing the agency's initial analysis of the subject matter, often asking for early public input on key issues.
Any data or communications regarding the upcoming rule would be made available to the public for review.
Occasionally, a board of potentially affected parties is comprised to do give-and-take bargaining over rulemaking subject-matter which would otherwise result in deadlocked opposition by an interested party.
This is commonly called "negotiated rulemaking", and results in more custom-tailored proposed rule.
Proposed Rule. In this step, the agency publishes the actual proposed regulatory language in the Federal Register; in which a discussion of the justification and analysis behind the rule is printed, as well as
the agency's response to any public comment on the advance notice.
Public comment. Once a proposed rule is published in the Federal Register, a public comment period begins, allowing the public to submit written comments to the agency.
Most agencies are required to respond to every issue raised in the comments. Depending on the complexity of the rule, comment periods may last for 30 to even 180 days.
Final Rule. Usually, the proposed rule becomes the final rule with some minor modifications. In this step, the agency publishes a full response to issues raised by public comments and an updated analysis and justification for the rule, including an analysis of any new data submitted by the public.
In some cases, the agency may publish a second draft proposed rule, especially if the new draft is so different from the proposed rule that it raises new issues that have not been submitted to public comment.
This again appears in the Federal Register, and if no further steps are taken by the public or interested parties, is codified into the Code of Federal Regulations.
6
Under the APA, rulemaking would contain these steps
Judicial review. In some cases, members of the public or regulated parties file a lawsuit alleging that the rulemaking is improper.
While courts generally offer significant deference to the agency's technical expertise, they do review closely whether the regulation exceeds the rulemaking authority granted by the authorizing legislation and whether the agency properly followed the process for public notice and comment.
Effective date. Except in extraordinary circumstances, the rule does not become effective for some time after its initial publication to allow regulated parties to come into compliance.
Some rules provide several years for compliance.
"Hybrid" rulemaking. Not a legal term of art, but describes the kind of rulemaking performed by agencies that is somewhere between formal (with a hearing and record) and informal (with the notice and comment procedures described above).
Hybrid rulemaking generally subsumes procedural aspects reserved for adjudication, such as a formal hearing in which interested parties are sworn and subject to cross examination.
The statutory construction of the Administrative Procedure Act, as well as the Supreme Court's ruling in Vermont Yankee Nuclear Power Corp. v.Natural Resources Defense Council, Inc.,] make hybrid-rulemaking proper only when specifically provided for by the U.S. Congress.
7
8
Rulemaking Apparatus
Public participation requires some official method for the agency to communicate to the public. Generally, agencies produce an official gazette, or periodical for publishing all rulemaking notice, such as the Federal Register.
Once a rule is final, the language of the rule itself (not the supporting analysis or data) is codified in the official body of regulations, such as the Code of Federal Regulations (CFR).
In essence, the accountability of the rulemaking system assumes that the public actually does take note of all of the notices in the Federal Register, which can run over a hundred pages per day.
In practice, many industry or public advocacy lobbyists and lawyers monitor the Federal Register Table of Contents every day by email on behalf of their constituents or clients.
Public comments are the heart of the public’s ability to participate in the rulemaking process.
The agency rulemaking is usually required to consider and publish a written response to all comments.
Holding agencies accountable for objective, fact-based rulemaking requires maintaining a formal record of the facts and analysis behind the rule.
Interested parties generally must travel to an agency repository to inspect and copy this record.
In the federal government is moving toward posting rulemaking dockets on-line at www.regulations.gov.
9
Rulemaking and the Courts
In the U.S., interested parties can sue to have a judge review the rulemaking process once the rule is finalized.
Interested parties frequently sue the rulemaking agency, asking the court to order the agency to reconsider.
For example, environmental groups may sue, claiming that the rule is too lax on industry; or industry groups may sue, claiming that the rule is too onerous.
Traditionally, courts are reluctant to step into the shoes of the technical experts and re-open the decisions made in the agency’s detailed analysis.
However, courts do review whether a rulemaking meets the standards for the rulemaking process.
The basis of this review by the courts may be limited to certain questions of fairness or
the procedures that ensure that both sides of a dispute are treated equally before any decision making occurs
or that the decision is not patently unreasonable.
These powers of review of administrative decision, while often governed by statute,
were originally developed out of the royal prerogative writs of English law
such as the writ of mandamus and the writ of certiorari.
10
A Party Must Argue that the Rule is:
Arbitrary and capricious and/or unsupported by the record. Most frequently, objectors will argue that, even if the judge is not an expert, the judge can tell that there is an obvious gap in the agency’s data or analysis.
A court may intervene if it finds that there is no reasonable way that the agency could have drafted the rule, given the evidence in the rulemaking record.
A court may send a rule back to the agency for further analysis, generally leaving the agency to decide whether to change the rule to match the existing record or to amend the record to show how they arrived at the original rule.
If a court does remand a rule back to the agency, it almost always involves an additional notice and public comment period.
Exceeds statutory authority. Frequently, opponents of a rule argue that it fails to follow the instructions of the authorizing legislation.
Rules can be found to exceed statutory authority if they are too strict or too lax.
If a law instructs an agency to issue regulations to ban a chemical, but the agency issues a rule that instead sets levels for safe use—or vice versa—a court may order the agency to issue a new rule.
Bolt out of the blue. Occasionally, interested parties argue that the final rule contains provisions that were never vetted during the public comment period.
A court may intervene if it finds that there was no way that the commenting public could have anticipated the new provisions and provided comment.
If so, the new provisions are said to be, in a colorful legal phrase, a 'bolt out of the blue' rather than a reasonable course correction during the rulemaking process.
Frequently, agencies will vet several options during the proposed rule phase to allow for comment on the full spectrum of rules under consideration.
11
12
Administrative Adjudication
Notwithstanding popular concern about administrative power, which focuses on the profusion of government regulations, agencies make far more quasi-judicial decisions than they do rulemaking judgments. For example;
Is an industrial plant in violation of air quality standards?
Should a specific coal miner be entitled to benefits under the black lung compensation program?
Because of these quasi-judicial decisions, administrators are making decisions that matter,
judgements that determine rights or status under the law.
The consequences of administrative decision can be of major importance, and therefore the means
by which they are made are also significant.
https://en.wikipedia.org/wiki/Administrative_Conference_of_the_United_States
https://en.wikipedia.org/wiki/Due_process
13
Due Process Clause
The Fifth and Fourteenth Amendments to the United States Constitution each contain a due process clause.
Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law.
The Supreme Court of the United States interprets the clauses more broadly, concluding that these clauses provide four protections:
procedural due process (in civil and criminal proceedings),
substantive due process,
a prohibition against vague laws,
and as the vehicle for the incorporation of the Bill of Rights
https://en.wikipedia.org/wiki/Due_Process_Clause
14
Procedural Due Process
Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property.
When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at minimum,
notice, an opportunity to be heard, and a decision made by a neutral decision maker.
This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.
A suggestive list of basic due process rights to be applied equally to civil due process and criminal due process, are:
An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepares a record of the evidence presented.
Requirement that the tribunal prepares written findings of fact and reasons for its decision
Not all the above rights are guaranteed in every instance when the government seeks to deprive a person life, liberty, or property.
A person is due only notice, an opportunity to be heard, and a decision by a neutral decision maker.
Courts use various tests to determine whether a person should also be guaranteed any of the other above procedural rights.
15
Substantive Due Process
In United States constitutional law, substantive due process is a principle allowing courts to protect certain fundamental rights from government interference,
even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution.
Courts have identified the basis for such protection from the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which
prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law."
Substantive due process demarcates the line between the acts that courts hold that are subject to government regulation or legislation and the acts that courts place beyond the reach of governmental interference.
Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent.
Substantive due process is to be distinguished from procedural due process.
The distinction arises from the words "of law" in the phrase "due process of law."
Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include
sufficient and timely notice on why a party is required to appear before a court or other administrative body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings.
In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority:
courts may find that a majority's enactment is not law and cannot be enforced as such, regardless of whether the processes of enactment and enforcement were actually fair.
https://en.wikipedia.org/wiki/Substantive_due_process
16
A Prohibition Against Vague Laws,
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand or if a term cannot be strictly defined and is not defined anywhere in such law.
There are several reasons a statute may be considered vague; in general, a statute might be called void for vagueness reasons when
an average citizen cannot generally determine what persons are regulated,
what conduct is prohibited, or what punishment may be imposed.
Criminal laws which do not state explicitly and definitely what conduct is punishable for example are void for vagueness.
A statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.
Related to the "void for vagueness" concept is the "unconstitutional vagueness" concept.
No one must risk criminal prosecution merely because he or she cannot reasonably understand what conduct is prohibited under the law.
To summarize the contents of the doctrine, it establishes specific criteria all laws, or any legislation must meet, to qualify as constitutional. Such criteria includes the following:
Law must state explicitly what it mandates, and what is enforceable.
Definitions of potentially vague terms are to be provided.
https://en.wikipedia.org/wiki/Vagueness_doctrine
17
Incorporation of the Bill of Rights
Incorporation, in United States law, is the doctrine by which portions of the Bill of Rights have been made applicable to the states.
When the Bill of Rights was ratified, courts held that
its protections only extended to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of state and local governments.
However, the post-Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery,
gave rise to the incorporation of other Amendments, providing more rights to the states and people over time.
Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation through the Fourteenth Amendment in 1868 and the Fifteenth Amendment in 1870.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments.
Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments.
However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time,
enforceable against the state governments.
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
18
14th Amendment to the United States Constitution
The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.
Arguably one of the most consequential amendments to this day, the amendment addresses citizenship rights and equal protection of the laws and was proposed in response to issues related to former slaves following the American Civil War.
The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions The amendment limits the actions of all state and local officials, including those acting on behalf of such an official. The amendment's first section includes several clauses:
the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.
The Citizenship Clause provides a broad definition of citizenship, nullifying the Supreme Court's decision in Dred Scott v. Sandford (1857), which had held that Americans descended from African slaves could not be citizens of the United States.
The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure.
The Supreme Court has ruled this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, as well as to recognize substantive and procedural requirements that state laws must satisfy.
The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction.
This clause has been the basis for many decisions rejecting irrational or unnecessary discrimination against people belonging to various groups.
The second, third, and fourth sections of the amendment are seldom litigated.
However, the second section's reference to "rebellion, or other crime" has been invoked as a constitutional ground for felony disenfranchisement.
The fourth section was held, in Perry v. United States (1935), to prohibit a current Congress from abrogating a contract of debt incurred by a prior Congress.
The fifth section gives Congress the power to enforce the amendment's provisions by "appropriate legislation"; however, under City of Boerne v. Flores (1997), this power may not be used to contradict a Supreme Court decision interpreting the amendment
19
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States,
shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
20
What is Judicial Review ?
Judicial review is a process under which executive or legislative actions are subject to review by the judiciary.
A court with authority for judicial review may invalidate laws and governmental actions that are incompatible with a higher authority:
an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution.
Judicial review is one of the checks and balances in the separation of powers:
the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.
https://en.wikipedia.org/wiki/Judicial_review
21
Judicial Review – the Dilemma
Historically, judges were expected to provide an:
external check on administrative power,
to support the sense of legitimacy of administrative law by ensuring that there is a place where citizens can take their disputes outside the administrative arena for vindication of their rights,
and to integrate the law of public administration with the rest of our body of law.
The dilemma occurs when:
Judges presume that government officials are acting lawfully in order to not second-guess the substance of administrative decisions.
Even though judges perform a vital function in ensuring that administrators obey the law, there is no clear line between
excessive judicial deference to arbitrary or unlawful administration and inappropriate interference with decisions that are properly the province of expert administration.
Because laws are mostly a work in process and many cases take time to work thru the court system, what appears to a logical outcome maybe changed as a result of ongoing activity in the legislation. For example U.S. Supreme Court case, Citizens to Preserve Overton Park v. Volpe
https://en.wikipedia.org/wiki/Citizens_to_Preserve_Overton_Park_v._Volpe
22
Judicial Review of Administrative Activity
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts now use two forms of scrutiny or judicial review.
The inquiry balances the importance of the governmental interest being served and the appropriateness of the method of implementation against the resulting infringement of individual rights.
If the governmental action infringes upon a fundamental right, the highest level of review, strict scrutiny, is used.
To pass strict scrutiny, the law or the act must be both narrowly tailored and the least restrictive means of furthering a compelling government interest.
If the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used, which determines whether a law or act is rationally related to a legitimate government interest.
The government's goal must be something that it is acceptable for the government to pursue.
The legislation must use reasonable means to the government's goals but not necessarily the best.
Under a rational basis test, the burden of proof is on the challenger
so laws are rarely overturned by a rational basis test.
23
Myth and Reality in Judicial Review
Judicial review is not a simple one-stop gate at which some gatekeeper is charged with deciding whether to allow the administrative decision to go forward or not.
As a simple system model of administrative justice system can demonstrate, decisions can exist at several points without going to court.
In reality only a small percentage of administrative decisions
are ever taken to judicial review.
When cases do go to court, they may be remanded (sent back) for clarification.
In a remand, a decision may not be reversed, but the court may find that the decision-maker needs to supplement the ruling that was made or
correct portions of the administrative action that was inadequately supported or decided according to an incorrect interpretation of law.
Judicial review has been described as a more of a dialogue over the requirements of law between courts and officials in the executive and legislative branches
than a dictating of terms in one grand, final decision.
24
Functions of Judicial Review
A review, as such as that prescribed by the ADA serves a number of purposes:
It establishes the boundaries of administrative authority through interpretation of the Constitution and statutes;
It provides feedback to the legislature, agencies, and the public on the meaning of law and the nature of agency authority;
It reconciles or at least identifies potentially conflicting federal, state, and local statutes and regulations;
It helps agencies develop orderly and regular processes for change and resolution of disputes;
It discourages, to some extent at least, abuses of discretion, thereby supporting the legitimacy of administrative decision-making;
It provides some protection from temporary majoritarian pressures on agencies that might undermine protection of individual rights or interfere with the use of an agency’s independent technical expertise;
It forces the development of records for use in later policymaking.
Note: Judges have an obligation to keep administrators within the law.
However, they are able to do so only sporadically, as cases arise, and the way in which cases are structured is largely out of their control.
25
25
The Expected Role of the Public Law Judge
Judges must be more than umpires, they must deal with often a challenging role in the managing of cases that come to their courts.
In cases where there are 25 or more briefs and 40 or more parties, this may be very difficult.
Part of their legal decision-making is the task of dealing with multiple and sometimes conflicting units of government or
at least agencies that have different missions and agency cultures.
Some situations may involve different agencies operating in the same policy area and same geographic area, with different roles,
and any of these agencies may end up before the same reviewing courts.
Cases that involve the use of water could attract varied groups such as:
farmers, commercial fishing operators, tribal communities, and electric power providers.
See cases listed in “Water law in the United States.”
https://en.wikipedia.org/wiki/Water_law_in_the_United_States#Major_legal_cases_in_American_water_law
26
Procedural Roadblocks to Judicial Review
Whether a case for judicial review will be allow to be heard involves the following three areas of concern:
Jurisdiction:
The case must be presented to a “tribunal that has the jurisdiction to decide it.
The case and the parties:
The case must be ready for review and the proper parties must bringing it.
Judicial gatekeeping:
Will the judges use the discretion they posses in interpreting procedural rules, what they sometimes refer to as prudential considerations, to block the case.
A decision is not reviewable when:
The statute involved specifically prohibits review;
If a court determines that even though no prohibition is stated, the statutory scheme or the legislative intent indicates that no review was available;
If a court determines that, whether or not the legislation specifies it, the kind of decision involved is committed to agency discretion.
27
What Kind of Review is Provided?
If the request can survive the judicial roadblocks, the following questions will have to address, directly or indirectly by the reviewing judge.
Has the administrator acted within his or her proper range of authority?
Were proper procedures followed?
Was the decision arbitrary and capricious or abuse of discretion?
Was there substantial evidence on the record as a whole to support the conclusion?
Is there a constitutional violation?
Is there a contractual question?
Is there a supranational issue?
Note: The court must avoid the danger of second-guessing the appropriate range of discretion and expertise exercised by administrators.
28
Deference and Authority Bias
Deference (also called submission or passivity) is the condition of submitting to the espoused, legitimate influence of one's superior or superiors.
Deference implies a yielding or submitting to the judgment of a recognized superior, out of respect or reverence.
Deference has been studied extensively by political scientists, sociologists, and psychologists.
Authority bias is the tendency to attribute greater accuracy to the opinion of an authority figure (unrelated to its content) and be more influenced by that opinion.
This concept is considered one of the so-called social cognitive biases or collective cognitive biases.
Humans usually have deep-seated duty to authority, and tend to comply when requested by an authority figure.
There are scholars who explain that individuals are motivated to view authority as deserving of their position and this legitimacy lead people to accept and obey the decisions that it makes.
https://en.wikipedia.org/wiki/Deference
29
Deference and the Issue of Legal Interpretation
The doctrine of contemporaneous administrative construction holds that the reviewing courts will grant deference to
the contemporaneous interpretation of a statute by the agency charged with its administration.
Historically there are three reasons have been advanced to justify this policy:
The agency has often been the repository of technical expertise and experience in it field;
The agency is the institution to which the Congress has delegated authority for the implementation of the statue and it therefore possesses both the authority that comes with the legislative delegation and the authority of the executive branch.
Contemporaneous interpretation stems from the fact that it is presumed that the agency was engaged in the conversations that gave rise to the statute in question and many even have participated in the drafting of the law.
30
Deference and the Problem of Agency Expertise
Judicial review and its use of deference to administrative action is perhaps most difficult where
the agency administers policies governing scientifically and technologically based activity.
Administrative decisions in such areas as air and water pollution and toxic substances control involve difficult and often
controversial scientific judgments about which even the recognized experts disagree.
Note: In complex cases coming on judicial review from administrative agencies, judges must sometimes work hard simply to understand the language, concepts, and arguments presented.
31
