Law, College of


Date of this Version



98 IOWA L. REV. 465 (2013)


Courts deciding constitutional cases frequently have to make deference determinations—that is, decisions about whether to respect a political branch’s factual findings and policy judgments because of that branch’s institutional superiority. The U.S. Supreme Court’s approach to a wide range of these determinations, however, is inconsistent and undertheorized. Indeed, the Court’s difficulties with deference determinations mirror broader failures to resolve carefully and consistently a number of “stealth” determinations that recur in constitutional cases—determinations that fall outside the black-letter doctrinal framework but can still greatly impact a case’s outcome.

Rather than relying on pithy platitudes about each government branch’s strengths and weaknesses, courts should examine the actual behavior and processes of the relevant governmental institution before deciding whether deference is appropriate. This contextual, institutional approach would provide better incentives for Congress and administrative agencies to craft policy utilizing their expertise and reinforcing their political accountability. It would also offer a more searching, rigorous model for courts approaching other extra-doctrinal determinations, thus improving the legal status of both deference determinations themselves and stealth constitutional determinations more generally.