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32 Cardozo L. Rev. 2189 (2010-2011)
The Executive Branch, Administrative Action, and Comparative Expertise

handle is hein.journals/cdozo32 and id is 2211 raw text is: THE EXECUTIVE BRANCH, ADMINISTRATIVE
Stephen Breyer*
How much deference should the Court give to an executive branch
agency's own formulation of a policy or to an agency's determination of
what a statute means? How willing should the Court be to overturn or
to sustain an agency's decision about these matters? The answers to
these technical-sounding questions are more important than one might
think. Administrative decision making constitutes the bulk of executive
branch work; and the bulk of its administrative decisions are subject to
judicial review. Hence, the questions' answers help to define much of
the Court-executive relationship. Moreover, agencies act within the
confines of statutes. Hence, in answering the questions, the Court must
keep Congress in mind.
Most important, the answers affect the lives of ordinary
Americans. While it is easy to see the effect of executive branch
decisions on basic rights, such as the presidential order to send troops to
Little Rock to enforce Brown, it is harder to remember that routine
agency decisions can also affect our daily existence, often in profound
The answers matter, for they affect the way government works, the
ability of modern government to solve the problems of ordinary
Americans, and consequently the broader question this book considers:
how the Court can earn the public's confidence by developing
relationships with other institutions that will help government work


* Associate Justice, United States Supreme Court. This Article is reprinted without change
Knopf 2010). Reprinted with permission. Because the original format of the chapter has been
preserved, some text and citations do not conform to Cardozo Law Review or Bluebook style.

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