The New Administrative Law II: Why Defer?

Part II of a two-part series on administrative law

In Part I of this series on administrative law, I set out the reasons why the Progressive mode of thinking about the subject has lost force in the 21st century. The basic point was that the Progressives—who thought agencies could be staffed by expert, well-intentioned people to achieve progressive goals—assumed too much. In today’s day and age, deferring to agencies on the basis of expertise or their particular substantive goals would mean drawing a consistent rule that applies to inexpert agencies and those who do not hold progressive goals.

In truth, though, this tells us nothing about what sort of judicial review doctrine should be adopted by courts—what the posture of courts should be on judicial review. The only reason I needed to write the first post in the series is because the Progressives, who are the architects behind today’s administrative state, made these weak reasons for deference the basic building blocks. The Progressives made it so political appreciations of agencies justified a deferential posture. The problem with these assumptions, though, is that they require a constant justification according to empirical facts, and a costly court-led investigation into the reasons for deference in every case. The assumptions must be true. And if they are not true, the reasons for deference melt away.

More importantly, these functional reasons for deference are not legal reasons for deference. As Justice Scalia said, they are not reasons for motivating a court to refuse to take an independent view of an agency decision.

So, the first post in this series was not a post I wanted to write, because expertise and the political goals of an agency should be wholly irrelevant to judicial review. But it was a post I had to write, because these reasons for deference need to first be put aside before embarking on a far more ambitious task: describing a defensible doctrine of judicial review.

In the spirit of the Court’s upcoming administrative law trilogy decisions, I invite readers to take a step with me into a world where there is no administrative law doctrine—but there are courts and administrative agencies. Let’s say that there is no court-made law governing the relationship between courts and agencies. All we have is our Constitution and the principles that animate it, and statutes

Luckily for us behind this veil of administrative ignorance, the Constitution itself gives some thought to how Parliament and courts should interact. When Parliament passes law, absent constitutional objection, its law binds because of the idea of parliamentary sovereignty. Putting aside thorny issues of an unconstitutional delegation of power or other constitutional challenges to administrative discretion, most administrative issues are just ordinary, hum-drum stuff involving an exercise of discretion or the interpretation of a statute.

When an administrator is delegated power under Parliament’s law to make determinations, issue rules and regulations, or adjudicate disputes, its power is confined by the statute that creates it. The administrator cannot make a decision forbidden to it by statute. Traditionally, in the common law, it was the job of the courts to interpret the limits of statutory bounds and say when a decision-maker took a decision that was not prescribed by statute. In other words, courts interpret statutes to give effect to legislative meaning regarding agencies. Courts do not invent standards to govern those agencies.

In this way, the concept of jurisdiction at common law was an attempt to synthesize parliamentary sovereignty with the rule of law. Of course, jurisdiction became a problematic concept, for the same reason that the Progressive approach to administrative law is problematic. It read a judicial conservatism into the statutes adopted by Parliament, just like Progressives wanted judges to read labour-friendly standards of review into the law. But the concept that jurisdiction was getting at—the “statutory authority” of the decision-maker—was basically sound. The idea, expressed in Bibeault, that all of judicial review is fundamentally a matter of statutory interpretation is the simple reality of the matter.

This raises the question: when does a court defer under this arrangement? In my view, the only legal and constitutional basis for deference is when a legislature expressly or implicitly says so. I have already expressed why functional or policy reasons for deference are underwhelming reasons for a court to take a hands-off approach in the interpretive process. They are empirically doubtful, and do not legally bind, because it is Parliament, not the courts, that prescribe the level of deference.

When Parliament expressly provides in a statute for the standard of review, the issue is easy. Parliament’s law binds. The trickier question exists, in the vast number of cases, where Parliament or legislatures do not expressly provide for a standard of review, and courts must do the best they can with the statute in front of them.

This moves us from the world of abstract principles in the technical, doctrinal question of judicial review: which doctrinal tools should courts use to approximate legislative meaning on standard of review when there is no clear legislative meaning available? There are any number of options, but one can divide the world into two different types of legal doctrines: rules and standards. A standard might look something like the Dunsmuir factors, in which courts are asked to look to the various indicia like the expertise of the decision-maker, the nature of the question at issue, or the existence of a privative clause or a statutory right of appeal; the former a non-binding sign that courts must defer, the latter a sign that legislatures contemplated a more searching standard of review. The goal of the standard is to take into account “context” to approximate all of the conditions under which deference could exist.

One could also imagine a rule. This has been the approach adopted by the Supreme Court as of late. In both Edmonton East and CHRC, the Court went to pains to explain that its preferred approach was a presumption of deference, based on the expertise of the “tribunal” as an “institution.” To the Court, a strong-form presumption of deference is designed to simplify the standard of review analysis and “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Alberta Teachers, at para 36, citing Dunsmuir, at para 145).

There are costs and benefits to both rules and standards, the complexities of which I cannot explore here. But, in at least one respect, the costs of standards cut hard in the direction of rules when it comes to administrative law: that is, the costs of “compliance” with a standard are likely exponential in a world where administrative agencies take different forms, carry different legislative, executive, and judicial functions, and take on varying policy tasks in complex regulatory environments. It is difficult for litigants to approximate the standard of review under the current scheme, because they cannot be sure with any degree of regularity what the standard will be in their case. There is also a kernel of truth in the Court’s reasoning about deferential presumptions: at the very least, they focus the parties in on the merits at the expense of the rather abstract standard of review.

But the standard of review, nonetheless, is integrally important in a world where government action is confined by law. It prescribes the conditions under which unelected judges can interfere with the actions of delegated actors, acting under authority delegated to them from elected actors. It is important to get the question right, as a matter of the rule of law. But it is also important to stabilize the law, also as a matter of the rule of law.

How do we balance these considerations? I favour a rule of interpretation similar to the one advanced by Martin Olszynski: there should be a presumption of correctness review. That presumption would operate under the well-supported idea that the legislature must affirmatively—explicitly or implicitly—speak before a court will infer deference. In other words, deference does not accrue to administrative agencies from the heavenly font of judicial chambers. It does not exist in the ether because of some expertise-worship or the desires of progressives; after all, experts should be “on tap, not on top.” Deference is, in reality, only a legal matter—only prescribed by legislators—and must be fairly interpreted to exist by courts.

The rule can be slightly relaxed when we come to understand under what conditions deference should operate. A privative clause, within constitutional limits, should bind courts and be a sign of deference—it should operate as a statutory “clear statement rule” that deference was intended by the legislature. In less clear cases, such as when statutes delegate power in broad terms (the classic “public interest” delegation is an example), courts should also defer, on the grounds that legislatures would have spoken more specifically if it wished the agency to have a more limited range of factors to consider in making a decision. Where a legislature uses a “statutory recipe,” deference should be very narrow, perhaps non-existent: if an agency has a list of factors to consider, it must consider that list, nothing more or less.

Of course, what I have said here is open to criticism (Professor Daly, for example, wrote a piece a few years back criticizing this line of thinking; I responded to Professor Daly’s piece, here). And nothing in here is necessarily new. Justice Stratas, for example, has written decision after decision at the Federal Court of Appeal level along these lines. Nonetheless, the contribution I seek to make here must be read in light of my previous post. My conclusions can be summarized as follows:

  1. Legislatures are sovereign within constitutional limits.
  2. This means that when legislatures delegate power, within constitutional limits, courts (as unelected actors) should respect the will of elected actors. This is a simple corollary of the English Bill of Right
  3. On that logic, it is for the legislature to tell courts just how far courts can go. In the state of nature, courts must fairly interpret those boundaries.
  4. Courts should not read progressive (or conservative) justifications for deference into the law. Courts should not presume expertise where it does not exist. Courts should not presume that agencies are owed deference because they are part of the “social welfare” state. In the latter part of the 20th century, the courts swerved in the direction of leftist politics rather than law. That tendency should be guarded against, not only because it is wrong as a matter of law, but also because it is empirically untrue. But so should the tendency to shift in conservative directions.
  5. The best rule, with this in mind, is a presumption of correctness review, with the onus on the legislature to stipulate if it wishes more deference in the context of particular statutes, using either (a) privative clauses/statutory rights of appeal or (b) broad language, implying that the legislature did not wish to limit the considerations an agency can take into account in carrying out its tasks.

The methodology here is not perfect, the considerations are not complete, and there is more that can be said. But at the very least, in this series of posts, I hope to have inspired a re-evaluation of the existing reasons why we defer to agencies. I also hope to have encouraged readers to reflect on the real reasons why we should ever defer at all.

Author: Mark Mancini

I am a graduate of the University of New Brunswick Faculty of Law, a current LL.M. student at the University of Chicago Law School, and the incoming National Director of the Runnymede Society. I clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in administrative law broadly, with specific interests in substantive review of administrative interpretations of law. I am also interested in law and economics, particularly remedies law viewed from an economic perspective. Any views expressed on Double Aspect are mine, and do not represent the views of the Runnymede Society.

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