Tennessee Gov. Lee Signs Historic Bill Ending Wrongful Judicial Deference 

Last Thursday, Tennessee Governor Bill Lee signed a historic piece of legislation that makes the legal system much fairer for Tennessee businesses and individuals.

The new law flips wrongful judicial deference (also referred to as agency deference, or as Chevron or Auer deference at the federal level) on its head by instructing courts to review cases involving government agencies de novo (legalese for “from the beginning”), rather than deferring to an agency’s interpretation of its own rules and enabling statutes.

While a few states have passed laws requiring de novo review, the Tennessee law goes further by instructing courts to resolve any remaining ambiguities against government agencies.  

When people get their day in court, they believe judges will serve as a neutral party to make sure the law is followed. But prior to this new law, Tennessee, like many other states, followed a series of misguided U.S. Supreme Court decisions where the Court concluded that instead of fulfilling their constitutional duty to interpret laws and regulations, judges should defer to government agency interpretations of their own regulations.  

What this means in practice is that as long as a government agency’s interpretation of its own regulation isn’t clearly contradicted by the text of the regulation, judges side with the government every single time on matters of law. 

So, whenever a Tennessean has challenged a tax determination, a denial of health benefits, or denial of a permit or occupational license, Tennessee courts have simply adopted the agency view of the law, instead of carefully considering each side’s argument.

Under the new law, each side will present its arguments to the court and the court will use the customary tools of interpretation to apply the law to the facts, just as in every other area of the law.  

And if the court finds that the statute or regulation still is ambiguous, the new law instructs the court to resolve ambiguities against the state agency. Now the law more closely mirrors the rule of lenity, which resolves all ambiguities in criminal cases in favor of the accused. It’s only fair that people are put on notice of what conduct is illegal. It was true in the criminal context, and now in Tennessee, it’s true when a person or business goes up against a government agency in court.  

Congratulations to the legislation’s sponsors, Chair Mike Bell and Chair John Ragan, Governor Lee, and all Tennesseans for leading the way to combat government overreach and give all a fair day in court.  

Similar legislation is pending in Oklahoma and Louisiana.