National Review: States Should Jettison Chevron-Style Deference

Last month, the Supreme Court heard oral arguments in two cases striking at the heart of a legal doctrine that props up the administrative state: Chevron deference. Herring fishermen are challenging a National Marine Fisheries Service (NMFS) regulation that requires them to pay the salary of federal monitors riding on their fishing boats.

In the pair of cases, Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, the fishermen lost in the lower courts because the Chevron-deference doctrine forces judges to side with a government agency’s interpretation if there’s an ambiguity (actual or imagined) in the federal law the agency is charged with carrying out. The NMFS says such an ambiguity exists with respect to industry-funded monitors; the fishermen say otherwise.

Rather than weighing these competing interpretations and picking the most persuasive one, Chevron mandates that judges put a thumb on the scale for the government. This has led to a dramatic win rate for the government — at the expense of individuals and businesses that find themselves in the crosshairs of a government agency.

Defenders of deference argue that agency bureaucrats are experts in their given fields, so judges should defer to them on the meaning of the laws they execute. After all, the defenders say, what does a judge know about commercial fishing? Deferring to an agency bureaucrat’s interpretation of legal language, however, has nothing to do with technical expertise. Judges are experts at interpreting laws.

Thankfully, reform appears to be in the air at the Supreme Court. But even if the justices jettison Chevron, there’s more work to do in the states.

Though Chevron deference is a legal doctrine that federal courts use when they hear disputes involving federal agencies and federal law, many states have dabbled with similar doctrines. State courts often take their lead from federal courts, adopting interpretations of state constitutional provisions or laws that mirror how the U.S. Supreme Court has construed similar provisions in the federal Constitution or laws. Chevron deference is no exception. Thus, while a Supreme Court decision overturning Chevron would mean federal courts no longer rely on it, state courts’ jurisprudence will remain unchanged.

In recent years, states such as Arizona, Florida, Tennessee, and Wisconsin have passed laws (or even amended their constitutions) to prevent courts from giving Chevron-style deference to government agencies. Others, including Delaware, Michigan, Mississippi, and Ohio, have rejected Chevron through their courts. Legislatures in Indiana, Iowa, Nebraska, and Oklahoma have introduced bills during the current legislative session to clarify that Chevron has no place in their courts.

West Virginia and 26 other states filed a “friend of the court” brief supporting the herring fishermen, explaining that in states without Chevron-style deference, residents “are reaping the gains from better accountability and responsible regulation.” At the same time, states remain “able to efficiently and effectively tackle” complex policy issues. In short, these states prove the sky will not fall without Chevron.

Unshackling judges from the requirement that they set aside their independent judgment in favor of a government agency’s judgment doesn’t mean that the government will always lose (though at Pacific Legal Foundation, we prefer to always win). It simply restores courts to their proper place as impartial arbiters of the law.

You wouldn’t want a referee who always sides with one team. The same goes for judges, who are supposed “to call balls and strikes, and not to pitch or bat,” as Chief Justice John Roberts aptly put it during his Senate confirmation nearly two decades ago.

Whether or not the Supreme Court chucks Chevron into the ash heap of history, states with Chevron-style deference don’t have to wait to make a change. They can — and should — revise their laws to eliminate this reflexive deference to government. As then-judge Neil Gorsuch once put it, “We managed to live with the administrative state before Chevron. We could do it again.”

This op-ed was originally published in National Review on February 8, 2024.