Endangered Deference: Separation of Powers and Judicial Review of Agency Interpretation

Authors

Kathryn M. Baldwin

Document Type

Note

Abstract

(Excerpt)

This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. Part IV concludes with a suggestion to courts to better balance separation of powers not through de novo review, but by embracing congressional intent as exhibited in post-enactment legislative history.