Revisiting Judicial Deference To Federal Agencies

Law360, New York (November 3, 2015, 11:49 AM EST) -- The fundamental pillars undergirding the scope of judicial deference to federal agency action date from the World War II era: Skidmore et al. v. Swift & Co. was decided in 1944, and a few months later, in June 1945, the court decided the case of Bowles v. Seminole Rock & Sand Co.[1] These landmark cases (decided at a time when the "administrative state" was much smaller and less complex) involved judicial review of a federal agency's interpretation of its own regulations and predate the enactment of the Administrative Procedure Act in 1946. Since those days, the federal government, and particularly the federal agencies created by Congress, have experienced an explosive growth in scale and influence. For example, it is now common for the federal government to publish in the Federal Register more than 80,000 pages of agency notices, decisions and rules on an annual basis. As Chief Justice John Roberts observed, "the administrative state wields vast power and touches almost every aspect of daily life." Theoretically, almost all of these reported government actions are potentially subject to review in the federal courts, which may have been a factor prompting the Supreme Court to develop and apply decisional doctrines and practices to cope with the unremitting flood of federal actions seeking review in the courts....

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