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Commentary: Justices Again Show Undue Deference To Feds, But Take Case That Could Undo That

This article was written by Jack Fitzhenry and published on The Daily Signal.

In the spirit of football season, let’s imagine a short-yardage run play. The running back barrels into a mass of bodies, and the ball disappears from sight. After the officials excavate the ball, they must determine whether the runner has made the line to gain.

Now, imagine that in every such ambiguous situation, the referees were required to defer to the home team’s assessment of whether they picked up the necessary yardage. After all, making accurate calls in that situation is notoriously challenging, and perhaps what the game needs is just a consistent rule of decision.

For still greater consistency, just extend the rule further. In every ambiguous situation—every questionable penalty for holding, pass interference, whatever—the referees defer to the home team’s assessment.

Unless some scheduling anomaly enables your team to play all its games at home, this shouldn’t strike you as desirable, let alone fair. Consistency may be a virtue of sorts, but it’s hardly preferable to accuracy.

And yet, this hypothetical is something like the sporting equivalent of the doctrines that require judges to defer to federal agency decisions. Except that deference applies even in those “neutral site” games before federal judges, who are otherwise duty-bound to be impartial between litigants.

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