7. Discretion and deference

Abstract

This chapter discusses how judges can defer in appropriate ways to administrative authorities on some issues, while still opposing abuses of power. The chapter explains why the courts defer massively to administrative authorities on some issues involving foreign affairs and national security, public expenditure, planning, and legal and political processes. The mere fact that the law has allocated the power to an administrative body gives rise to a presumption that a court should not interfere unless there is a ground for review other than that the court would have reached a decision. The extent to which a court ought to defer is determined by the three reasons for allocating power to an administrative body: the body’s expertise, its political responsibility, and/or its decision-making processes.