DEFERENCE WITHOUT ABDICATION: ADMINISTRATIVE DISCRETION AFTER CHEVRON’S DEMISE

Luiz Carlos Nacif Lagrotta

No dq3rk_v1, LawArchive from Center for Open Science

Abstract: Brazilian courts increasingly invoke administrative deference when reviewing technical, scientific, regulatory, distributive, and organizational decisions. Some judgments expressly associate this form of judicial restraint with the so-called Chevron doctrine, even though Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. addressed a narrower question: whether courts should accept a permissible agency interpretation of an ambiguous statute. The United States Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overruled Chevron, makes the conceptual ambiguity of the Brazilian approach particularly visible. This Article argues that Brazilian law has not imported a single doctrine of administrative deference. Instead, courts have placed several distinct forms of judicial restraint under the same label: interpretive, epistemic, regulatory, distributive, temporal-organizational, and institutional-procedural deference. These categories do not share the same legal foundation and should not be subject to the same standard of review. Deference cannot create administrative discretion, enlarge statutory authority, or convert technical complexity into immunity from judicial scrutiny. It operates only after the legal system has conferred a genuine margin of choice upon the administration. The Article proposes a density-sensitive model of deference. The intensity of judicial review should vary according to the statutory delegation, the nature of the disputed issue, the quality of the administrative procedure, the evidentiary basis of the decision, the completeness of its stated reasons, the severity of the rights restriction, and the comparative capacities of the institutions involved. Legal certainty, reasonableness, and proportionality are not exceptions to deference but conditions for its legitimacy. Law and Economics contributes by identifying information asymmetries, externalities, error costs, systemic effects, and institutional incentives, but efficiency cannot displace legality, equality, or fundamental rights.

Date: 2026-08-10
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Persistent link: https://EconPapers.repec.org/RePEc:osf:lawarc:dq3rk_v1

DOI: 10.31228/osf.io/dq3rk_v1

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