Volume 16
Issue 1
Winter '18

Is Judicial Deference to Agency Fact-Finding Unlawful?

Written By: Evan D. Bernick


Judicial deference to fact-finding by federal administrative agencies took root and developed alongside the modern administrative state. This fact deference is of great consequence to people who are charged with regulatory violations by agencies. Such violations are often initially adjudicated, not in federal courts by Article III judges, but in administrative proceedings by employees of the agency that is seeking to impose fines or other penalties. While review can later be sought in federal court, judges broadly defer to the factual findings made by agency adjudicators in the course of administrative proceedings—and those findings can be determinative of whether a regulatory violation has taken place. Although fact deference was initially constructed by the Supreme Court, it now has the express command of the Administrative Procedure Act of 1946 (APA) behind it. Section 706(2)(E) of the APA provides that fact-finding in formal administrative adjudication may be overturned by reviewing courts only if an agency’s factual determinations are found to be “unsupported by substantial evidence.”

Although longstanding administrative law doctrines that command judges to defer to agency interpretations of statutes and regulations have received intense academic and judicial scrutiny in recent years, fact deference has received comparatively little attention. This Article provides an overview of the origins, development, and present state of fact deference and subjects fact deference to a constitutional critique. It concludes that in cases involving administrative deprivations of what I will refer to as core private rights to “life, liberty, or property,” fact deference violates both Article III and the Due Process of Law Clause of the Fifth Amendment. It then proposes an alternative: de novo determination of questions of fact in Article III courts prior to any binding judgment that deprives people of core private rights.

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