Take a listen to our conversation with BYU Law Professor Aaron Nielson on his recent administrative law scholarship.
Counting the Preamble and the signing statement at the bottom of page four, the word the appears approximately 420 times in the United States Constitution. The terms that the modifies are predictably varied—both singular and plural, both uppercase and lowercase—but they rarely represent anything but grand concepts. Previously, scholars have engaged in deep-rooted study of words in the Constitution that are just as short and seemingly routine as the, not to mention analysis of even shorter, everyday words by important constitutional actors. But until recently, the constitutional the had not really gotten its due, its starring role, until the January 2013 decision of the United States Court of Appeals for the District of Columbia in Noel Canning v. NLRB. It was a long time coming for the most common word in the English language. It’s just too bad it was entirely unnecessary.
The topic of judicial deference arises each time a court reviews the legitimacy of an opinion or regulation by an administrative agency to which Congress has delegated some rulemaking authority. Determining the appropriate deference standard is important because it sets limits on an agency’s quasi-legislative power and informs taxpayers and practitioners on the likelihood of challenging seemingly invalid administrative rulings. Noting the importance of the deference issue, Professor Kristin E. Hickman, one of the foremost authorities on administrative law in the federal income tax context, wrote that "[d]rawing fine distinctions among deference standards may seem a purely academic exercise . . . [but] deference standards matter."