The Volokh Conspiracy

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Administrative Law

Super Deference and Heightened Scrutiny

What should courts do when an agency action is based upon scientific evidence within the agency's expertise, but also implicates heightened scrutiny?


Federal courts are generally quite deferential to administrative agency conclusions about scientific matters within the agency's expertise. This is particularly true where the  subject matter concerns questions on the frontiers of science, or in areas that are contested. Courts are not experts on the underlying scientific questions, but agencies often are. Moreover, Congress often delegates to agencies the authority to make such judgments.

While courts are quite deferential to agency scientific determinations, current doctrine provides that courts are not supposed to defer to agencies when they take actions that implicate constitutionally protected rights or implicate suspect classifications. Rather, courts are supposed to apply various forms of heightened scrutiny to ensure that government officials are not transgressing constitutional protections.

What should courts do when these two imperatives conflict? In my latest article, "Super Deference and Heightened Scrutiny," just published in the Florida Law Review, I argue that the answer should be clear: heightened scrutiny trumps deference, even the "super deference" agencies receive for some scientific determinations.

What this means is that if federal agencies wish to argue that, say, scientific evidence concerning the spread of a disease justifies considering race when making treatments available or that such evidence supports suppressing speech (even commercial speech), courts should not review the scientific basis for such claims deferentially. Rather, they should fulfill their constitutional obligation to apply the non-deferential review that heightened scrutiny requires.

Here's 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 concerns. 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 and considers some of the potential implications of such a rule.

A PDF of the full article is here.