Deference to Congressional Factfinding in Rights-Enforcing and Rights-Limiting Legislation

Abstract

This article examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation. Yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically undertheorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.This Article begins, in Parts I-III, by identifying the three criteria that should govern the deference question. Part I argues that courts should consider whether the deference claim is based on a justification of expertise or authority. This distinction tracks a similar distinction made in the context of administrative agency claims for deference in interpreting statutes. Obviously, this latter context is quite different from the one considered in this Article; still, lessons from that doctrine help us understand how expertise and authority justifications should influence the deference question this Article considers. Part II explains how deference claims require consideration of the type of fact at issue. It proposes a rough taxonomy of facts whose distinctions are relevant to the deference question, and explains how those distinctions address that question. Part III then then explains how deference claims turn on the details of the underlying doctrine the finding seeks to apply.Based on the insights gleaned from this analysis, Part IV identifies six principles guiding the deference inquiry. One of these principles suggests, contrary to conventional wisdom, that empirical findings merit the least judicial deference. Another principle analogizes to equal protection law to explain why findings that precisely target a constitutional rule may also be appropriately subject to more searching judicial scrutiny. Part V applies these principles to congressional deference claims in several very different contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. The Article concludes with a call for further research in order to continue finding better resolutions to this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.