Judicial Deference and Executive Control Over Administrative Agencies

Abstract

Do judges defer to executives with increased institutional control over the executive branch? Administrative agencies play a key role in the policy implementation process. Executives could view aggressive judicial review of executive branch activity as a threat to executive power and negatively respond to perceived judicial intrusions. Governors across the country possess varying amounts of institutional authority over the agencies that comprise their states' executive branches. For example, in many states, executive branch officials are elected by the public or appointed by someone other than the governor. Increased fragmentation increases the difficulty of centralized management and decreases gubernatorial influence over the executive branch. I examine whether state supreme courts defer more to agencies in states where governors have more formal control over the executive branch. I find that state supreme courts are more likely to rule in favor of state administrative agencies in states where the governor has increased appointment power and increased power to review agency rulemaking.

Executive Power and Judicial Deference

“…In Model 2, the probability of a vote in favor of executive power when the executive has institutional retaliatory capacity increases by 10 percent (Table 2). Although previous findings on the impact of executive retaliatory capacity were inconclusive (Johnson 2014), these results lend support to the findings of Douglas and Hartley (2003) that court officials are aware that state executives will sometimes use their budgetary power in response to adverse rulings. 12 Although the estimates are in the expected direction, the estimates for judicial retention method, including gubernatorial retention, lack precision in Models 1 and 2.…”

Government Subsidies and Corporate Misconduct

“…In addition, state governors wield significant influence over the composition of state‐level courts. Johnson [2014] shows that this influence leads to fewer legal challenges to actions taken (or inaction) by state‐level agencies, in turn allowing these agencies greater discretion to engage in enforcement actions consistent with the preferences of the administration.…”

Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts

“…Legislative deference by judges may further rise in likelihood when legislative intent is clear. Statutes are policy “instructions” or “blueprints” (Huber and Shipan 2002, 44; see also Ferejohn and Weingast 1992), and when that legislative guidance is specific, it can “limit the policymaking discretion of other political actors” (Huber and Shipan 2002, 44; see also Johnson 2014, 2017; McCann, Shipan, and Wang ND; Randazzo, Waterman, and Fine 2006; Shipan 1997; Smith 2005, 2006).…”