When Super Deference Is Not So Super

"Super Deference and Heightened Scrutiny" forthcoming in the Florida Law Review

Litigation over state and federal COVID-19 regulations has highlighted the potential conflict between public health measures and constitutionally protected liberties. Recent cases have implicated the constitutional protection of religious exercise, reproductive rights, and property rights, among other things. These cases also highlight that conflicts over regulatory measures may pit agency expertise against constitutional rights.

As a general matter, courts are quite deferential to federal agency policy judgments, particularly where such judgments are informed by scientific expertise. The degree of deference given to expert agency scientific judgments is so great that it is often referred to as "super deference." The reasons for this degree of deference are understandable, as courts lack the scientific expertise of agencies, but are nonetheless controversial.

In "Super Deference and Heightened Scrutiny," forthcoming in the Florida Law Review, I explore the potential tension between judicial deference to federal agency scientific judgments and the application of heightened scrutiny, and argue that the latter should trump the former. I first became interested in this question in the context of commercial speech regulation, as federal agencies sometimes seek to restrict or compel commercial speech on questionable grounds, but then recognized the conflict had broader implications to other contexts in which heightened scrutiny is implicated.

I have posted a current draft of the paper on SSRN. Here is the abstract:

Judicial review of federal agency action is systematically deferential. Such deference is arguably at its peak where agencies address scientific and highly technical matters within their area of expertise. This is what some call "super deference." While there may be strong arguments for deferential review of agency scientific determinations as a general matter, there are reasons to question such deference when agency action implicates constitutional matters. In particular, where agency actions trigger heightened scrutiny, such as occurs when agency actions intrude upon expressly enumerated or otherwise recognized fundamental rights or adopt constitutionally suspect classifications, courts should not apply traditional levels of deference. This Article explains why the application of so-called "super deference" is inappropriate where federal agency action triggers heightened scrutiny, considers some of the potential implications of such a rule.

I am still tweaking a few parts, and I am still thinking about the implications of my argument for legislative findings (among other things), so substantive comments are welcome.