Bertrall Ross has posted this draft on SSRN (University of Chicago Legal Forum). Here is the abstract:
What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes.
In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should.
I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.