The Hill: 11 states have ended judicial deference to executive agencies — more should follow their lead

January 17, 2023 | By DANIEL DEW
Ohio Supreme Court gavel sculpture.

In federal and state courts around the country, Americans often face an uneven playing field when they square off against executive agencies, thanks to doctrines that require judges to rubber stamp agency interpretations of the law. And while the Supreme Court may be slow-walking the end of Chevron and Auer deference in the federal courts, state courts and legislators around the country are acting. Eleven states have ended deference to state agencies in recent years — including Ohio just a few weeks ago and Tennessee in its last legislative session — and more should follow their lead.

But first, what are Chevron and Auer deference? It’s called “Chevron” deference because of the 1984 Supreme Court case that embraced the ridiculous doctrine: Chevron v. NRDC. Chevron required that when a legal question arises over the interpretation of a statute an agency administers, courts must defer to the agency’s interpretation unless it is plainly contradicted by the text. Auer deference — named after Auer v. Robbins, the case that created it — is like Chevron deference but applied to an agency’s own regulations.

Thanks to these doctrines, federal courts are required to defer to agency interpretations even if what the agency claims is not the most logical or well-supported interpretation. Moreover, agency interpretations of their own power, whether in statutes or regulations, are not “neutral.” In almost all cases, they seek to expand the agency power at the expense of individual liberty. This places anyone going toe-to-toe with a government agency at a huge disadvantage (as if the seemingly unlimited resources and army of government lawyers isn’t enough of a disadvantage).

Deference is particularly strange on the part of the judiciary, because it is ceding one of its core responsibilities to interpret the law neutrally and independently. While Chevron remains law, the courts make themselves irrelevant in the separation of powers. The courtroom is reduced to a mere venue at which the executive branch, through its agencies, gets to reiterate its opposition to a challenger’s claims without any true examination. The judiciary should exist to adjudicate these disputes by considering the directives that come from the legislative branch and determining if the agencies are acting within the bounds of the law. Chevron deference short-circuits that process.

Deference releases courts of their constitutional duty and flies in the face of hundreds of years of legal tradition that require judges to resolve ambiguities against the party who created the ambiguity. The rule of lenity instructs courts to resolve ambiguities in favor of the accused in criminal cases because people shouldn’t go to jail when the law is unclear. And in contract disputes, ambiguities are resolved against the drafter because the law should incentivize clear drafting to set clear expectations for each party.

When a court defers to an agency’s interpretation of a law or regulation, it flips the system on its head. Instead of relying on the plain language of the text or previous court decisions, citizens are forced to guess how government bureaucrats currently interpret laws and regulations to know what a law requires or prohibits. And when a new administration comes into power, an agency head is replaced, or the same person just changes his or her mind, people can be penalized for wrongly guessing how the government interprets the laws or regulations that day.

Thankfully, states are not bound by Chevron or Auer and the tide is turning against deference in the states.

The Ohio Supreme Court recently rejected agency bias — in a case brought by Pacific Legal Foundation — holding that, “it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means.” Ohio is the seventh state to reject deference via judicial opinion, joining Kansas, Wyoming, Utah, Michigan, Delaware and Wisconsin.

And where state supreme courts have failed to reassert themselves as the final arbiter of the law, legislatures have stepped up. Florida passed a constitutional amendment doing away with pro-government bias. Arizona, Mississippi and Wisconsin passed laws requiring courts to do their job to say what the law is without deferring to the government’s position.

Tennessee went a step further. The Tennessee legislature passed a simple, two-sentence law that instructs courts to (1) interpret laws and regulations fairly and independently and (2) interpret it in a way that limits government authority if the law is still ambiguous after using all the normal methods of interpretation.

State legislatures have an interest in halting this bias. First, it protects their constituents from government abuse. Second, doing away with bias safeguards the legislature’s prerogative to make law. By giving deference to government agencies, agencies can circumvent the legislature by breathing new meaning into laws that the legislature never intended.

Nearly every courthouse in the United States has a depiction of Lady Justice. She is blindfolded and holding the scales of justice. This symbolizes to those who enter that the law is no respecter of persons. Each party is given an opportunity to present its case and the judge is to weigh the law and evidence in a fair manner. As state legislatures go back into session, they can ensure this is the case and restore the ideals enshrined in our Constitution.

This op-ed was originally published at The Hill on January 17, 2023.