Deference (administrative state)

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See also: Taxonomy of arguments about judicial deference and Judicial deference: a timeline

Deference (or judicial deference), one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state, is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. The U.S. Supreme Court has developed several forms of deference in reviewing agency actions, including Chevron deference, Skidmore deference, and Auer deference.[1][2]

The Trump administration was open about its desire to nominate judicial appointees who were, according to a March 2018 New York Times article, "devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations, often without being subject to judicial oversight." The criteria were first applied when nominating Justice Neil Gorsuch to the U.S. Supreme Court. Gorsuch's opposition to the Chevron doctrine made him the model for Trump administration judicial appointments.[3]

In addition to the information in this article, the additional pages list below provide a deep dive into the history, application, and arguments for and against judicial deference:

Background

The U.S. Supreme Court's 1984 ruling in Chevron v. Natural Resources Defense Council established the principle of Chevron deference, which requires a federal court to yield to an agency's interpretation of a statute that Congress instructed the agency to administer if the statute is ambiguous and the agency's interpretation is deemed reasonable. Since the development of Chevron, the U.S. Supreme Court has adopted additional forms of deference to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. These deference regimes, known as Skidmore deference and Auer deference, are based on U.S. Supreme Court decisions issued during the 1940s. According to Justice John Paul Stevens' 1984 opinion in Chevron v. Natural Resources Defense Council, the U.S. Supreme Court at the time had "long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer." Justice Antonin Scalia echoed Stevens' claim in a 1989 lecture at Duke Law School, stating that "courts have been content to accept 'reasonable' executive interpretations of law for some time."[1][4]

Types of deference

See also: Chevron deference

According to Justice Scalia, Chevron deference is "the principle that the courts will accept an agency's reasonable interpretation of the ambiguous terms of a statute that the agency administers." Under Chevron deference, a federal court must defer to an agency's interpretation of a statute that the agency administers if the underlying statute is unclear and the agency's interpretation is deemed reasonable.[4][5]

Skidmore deference, developed in the opinion for the 2000 U.S. Supreme Court case Christensen v. Harris County and named for the 1944 U.S. Supreme Court decision in Skidmore v. Swift & Co., allows a federal court to defer to an agency's interpretation of a statute that it administers according to the agency's ability to demonstrate persuasive reasoning. According to Justice Clarence Thomas' opinion in Christensen v. Harris County, Chevron deference is binding for agency rules developed through administrative rulemaking while Skidmore deference is applied to agency interpretations "such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines."[5][6]

Justice Robert H. Jackson's opinion in Skidmore v. Swift & Co. states:[5]

“ We consider that the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.[7][8] ”


Unlike Chevron deference, a federal court exercising Skidmore deference is not compelled to defer to an agency's interpretation of a statute. Instead, the court determines the appropriate level of deference based on the agency's ability to demonstrate that its interpretation is based on valid reasoning.[2][9]

See also: Auer v. Robbins

Auer deference, also known as Seminole Rock deference, is named for the 1997 U.S. Supreme Court decision in Auer v. Robbins that reaffirmed a deference regime first described in the court's 1945 ruling in Bowles v. Seminole Rock & Sand Co. Under Auer deference, a federal court must defer to an agency’s interpretation of an ambiguous regulation that the agency has promulgated. According to Justice Frank Murphy's opinion in Bowles v. Seminole Rock & Sand Co., a court must yield to an agency's interpretation of its own unclear regulation unless the court finds that the interpretation is "plainly erroneous or inconsistent with the regulation."[5][10][11]

Data on deference

In 2008, professors William Eskridge Jr. and Lauren Baer published a study of "all Supreme Court cases decided between Chevron (1983 Term) and Hamdan (2005 Term) in which a federal agency interpretation of a statute was at issue, 1,014 in all." According to the authors:[12]

“

For us, the most striking finding of our study was that in the majority of all cases—53.6% of them—the Court invoked no deference regime at all. This finding is especially notable in light of the fact that we searched hard for signs of deference and counted quite liberally (including Supreme Court reliance on amicus briefs, which formed the bulk of our consultative-deference category).[12][8]

”

The following table from Eskridge and Baer's study shows a breakdown of the various deference regimes cited by the Supreme Court in agency interpretation cases from 1983 to 2005:[12]

The Supreme Court's Continuum of Deference
Deference Regime Form of Deference Percentage of Cases in Population Agency Win Rate
No Deference Ad hoc judicial reasoning 53.6% 66.0%
Anti-Deference The Court invokes a presumption against the agency interpretation in criminal cases (the rule of lenity) and in some cases in which the agency interpretation raises serious constitutional concerns (the canon of constitutional avoidance) 6.8% 36.2%
Consultative Deference The Court, without invoking a named deference regime, relies on some input from the agency (e.g. amicus briefs, interpretive rules or guidance, or manuals) and uses that input to guide its reasoning and decisionmaking process 17.8% 80.6%
Skidmore Agency interpretation is entitled to "respect proportional to its power to persuade," with such power determined by the interpretation's "thoroughness, logic and expertness"; its "fit with prior interpretations"; etc. 6.7% 73.5%
Beth Israel Pre-Chevron test permitting reasonable interpretations that are consistent with the statute 4.8% 73.5%
Chevron Reasonable agency interpretations of ambiguous statutes accepted. If the statute is clear, no deference to agency 8.3% 76.2%
Seminole Rock Strong deference afforded to an agency's interpretations of its own regulations 1.1% 90.9%
Curtiss-Wright Super-strong deference to executive interpretations involving foreign affairs and national security 0.9% 100.0%

State responses to judicial deference

Judicial deference instructs federal courts to defer to administrative agencies' interpretations of ambiguous statutes or regulations. State-level approaches to judicial deference vary significantly. State courts are not obliged to defer to state-level administrative agencies or adopt federal deference doctrines. Thirty-five states as of 2023, however, had implemented forms of judicial deference to state administrative agencies similar to the federal deference doctrines.[13] Below is a selection of state government responses to judicial deference:

Idaho lawmakers end judicial deference practices (2024)

Idaho Governor Brad Little (R) on March 29, 2024, signed a bill into law to end judicial deference practices in the state. The bill, HB 626, ends judicial deference to agency interpretations of statutes or rules and requires courts to apply de novo review.

The bill was introduced by Representative Mike Moyle (R) and Representative Vito Barbieri (R) on February 22, 2024, and was inspired by model legislation developed by The Goldwater Institute and the Pacific Legal Foundation. The bill passed the Idaho House of Representatives on March 11, 2024, with a vote of 58-11-1 and passed the Idaho State Senate on March 25, 2024, with a vote of 31-1-2.[14][15]

Nebraska lawmakers end judicial deference practices (2024)

Nebraska Governor Jim Pillen (R) on March 27, 2024, signed a bill into law to end judicial deference practices in the state. The bill, LB 43, prohibits courts from deferring to agency interpretations of statutes or rules and requires courts to apply de novo review.

The bill was introduced by State Senator Rita Sanders (R) on January 5, 2023, and was inspired by model legislation developed by The Goldwater Institute and the Pacific Legal Foundation. The bill passed the Nebraska State Senate on March 21, 2024, with a vote of 39-0-10.[16][17]

Indiana lawmakers ends judicial deference practices (2024)

Indiana Governor Eric Holcomb (R) on March 13, 2024, signed a bill into law to end judicial deference practices in the state. The bill, HB 1003, ends judicial deference to agency interpretations of constitutional provisions, statutes, and regulations.

The bill was introduced on January 8, 2024, by Representative Gregory Steuerwald (R), and was inspired by model legislation developed by The Goldwater Institute and the Pacific Legal Foundation. The bill passed the Indiana House of Representatives on January 23, 2024, with a vote of 85-10, and passed the Indiana State Senate on March 5, 2024, with a vote of 40-7.[18][19]

Ohio Supreme Court rejects Auer deference (2023)

The Ohio Supreme Court on October 18, 2023, issued a ruling that ended the practice of state courts deferring to state agency interpretations of ambiguous regulations—a doctrine known as Auer deference in the federal courts.

In re Application of Alamo Solar I, LLC concerned challenges from a citizen group that opposed the development of two solar farms in Preble County, Ohio. The Ohio Power Sitting Board had approved the solar farms and imposed certain conditions on the development of the facilities. Though the Ohio Supreme Court affirmed the agency action as lawful, Justice Pat DeWine argued against the court’s exercise of Auer deference.

Writing for the majority, Dewine cited the court’s 2022 decision in TWISM Ents., LLC v. State Bd. of Registration for Professional Engineers & Surveyors that ended Chevron deference in the state. He further argued, “When a court defers to an agency’s interpretation of its own regulation, it allows the agency to assume the legislative power (the rule drafter), the judicial power (the rule interpreter), and the executive power (the rule enforcer).”

In a concurring opinion, Justice Jennifer L. Brunner argued that the court was not tasked with considering agency deference in the case. Brunner wrote that “the agency-deference issue addressed in TWISM … plays no part in our resolution of this case, and the majority’s discussion of TWISM is a distraction that is beyond the scope of what we were tasked with deciding.”[20][21]

Ohio Supreme Court limits Chevron deference (2022)

The Ohio Supreme Court on December 29, 2022, ruled against applications of Chevron deference in the state. In TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, the court found that state courts do not need to defer to state agency interpretations of the law—a deference doctrine known as Chevron deference at the federal level.[22]

Lower courts in TWISM deferred to the Ohio Board of Registration for Professional Engineers and Surveyors’ interpretation of its engineering certification rules, which denied TWISM Enterprises’ application to provide professional engineering services because the company’s designated licensed engineer was an independent contractor rather than an employee. TWISM Enterprises appealed the decision to the Ohio Supreme Court, arguing that the agency’s interpretation of the governing statute was flawed because the law does not specify that the licensed engineer must be an employee of the business.[22]

Justice Pat DeWine (with Justices Sharon L. Kennedy, Pat Fischer, and Michael P. Donnelly concurring) disagreed with the agency’s interpretation of the statute and argued that the judicial branch has the authority to determine whether the statutory interpretations of state agencies are lawful. DeWine, writing for the court, argued “that it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means. Thus, the judicial branch is never required to defer to an agency's interpretation of the law.” DeWine added that “an agency interpretation is simply one consideration a court may sometimes take into account in rendering the court's own independent judgment as to what the law is.”[22]

Justices Maureen O’Connor, Melody Stewart, and Jennifer Brunner concurred in the judgment only.[22]

Tennessee lawmakers end judicial deference practices (2022)

Tennessee Governor Bill Lee (R) on April 14, 2022, signed a bill aimed at ending judicial deference practices in the state.[23]

Senate Bill 2285 requires courts to interpret state statutes or rules de novo, as opposed to deferring to state agency interpretations of laws or regulations. The law also states, “After applying all customary tools of interpretation, the court shall resolve any remaining ambiguity against increased agency authority.” This resembles the rule of lenity in criminal law, which resolves ambiguities in favor of the defendant.[23]

Colorado Supreme Court narrows state deference practices (2021)

In the wake of the Mississippi Supreme Court’s June 10, 2021, rejection of state-level Auer deference, the Colorado Supreme Court followed suit in a June 14, 2021, en banc decision that narrowed applications of Brand X deference and Chevron deference practices in the state.[24]

In Nieto v. Clark’s Market, the court declined to extend Brand X deference to a regulation issued by the Colorado Department of Labor and Employment (CDLE). Brand X deference requires courts to defer to reasonable agency interpretations of statutes even when the interpretations conflict with prior court precedent. The challenged regulation in Nieto adopted an interpretation of a state labor law that departed from precedent set by the state Court of Appeals, but the Colorado Supreme Court declined to extend Brand X deference to the agency’s interpretation in the case.[24]

“[T]he CDLE is a state agency, and the [U.S. Supreme] Court’s holding in Brand X is not binding as to parallel state administrative procedure statutes,” wrote Justice Melissa Hart in the opinion. “We have not yet similarly interpreted the Colorado Administrative Procedure Act, and we decline Nieto’s invitation to do so here.”[24]

The justices further rejected state-level Chevron deference, which compels a court to defer to an agency’s interpretation of an unclear statute. Justice Hart stated that while the court has applied Chevron-style deference in the past, “we have made clear that, while agency interpretations should be given due consideration, they are ‘not binding on the court.’”[24]

Mississippi Supreme Court rejects state-level Auer deference, ends judicial deference in state (2021)

The Mississippi Supreme Court on June 10, 2021, ruled 8-1 in Mississippi Methodist Hospital and Rehabilitation Center Inc. v. Mississippi Division of Medicaid to end the state practice of deferring to agency interpretations of regulations, a doctrine known as Auer deference at the federal level. The court’s decision, combined with its prior rejection of state-level Chevron deference, effectively banned judicial deference practices in the state, according to an analysis by Pacific Legal Foundation attorney Daniel Ortner.[25]

Justice Leslie King wrote the opinion for the court, noting that the practice of “[d]eferring to agency interpretations of rules and regulations is inconsistent with the standard of review for statutory interpretation, causes confusion, causes inconsistencies in application and within our own caselaw, and violates article 1, section 2, of Mississippi’s Constitution.” The court’s decision institutes a new period of de novo review over agency regulatory interpretations.[26]

The court ended the state-level Chevron deference doctrine, which requires courts to defer to agency interpretations of unclear statutes, in the 2018 case King v. Mississippi Military Department. The justices argued that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review over such agency interpretations, which the court later reaffirmed in a 2020 tax and gambling case.

Georgia lawmakers approve limits on judicial deference in tax cases (2021)

Georgia Governor Brian Kemp (R) on April 29, 2021, signed into law Senate Bill 185, which limited judicial deference in the state by ending deference to certain tax regulations. [27][28]

The bill, sponsored by state Senator Bo Hatchett (R) and six Republican cosponsors, required state courts and the Georgia Tax Tribunal to decide all questions of law without deference to the regulations or policy interpretations of the state’s Department of Revenue, among other provisions.[27]

The Georgia House of Representatives on March 22 voted 164-4 to approve the bill. The state Senate unanimously approved the legislation on March 1. Georgia lawmakers had failed to approve similar legislation in 2020 before the close of the legislative session.[27]

Arkansas Supreme Court ends Chevron deference (2020)

An April 9, 2020, ruling by the Arkansas Supreme Court limited how much deference agency interpretations of law would receive in the future. The court ruled in Meyers v. Yamato Kogyo Co. that the court should determine the meaning of state laws for itself and should not defer to state agency interpretations (a deference doctrine known as Chevron deference in the federal courts).[29]

Justice Shawn Womack delivered the opinion of the court and cited “the risk of giving core judicial powers to executive agencies in violation of the constitutional separation of powers” if they did not clarify how courts were supposed to review agency decisions.[29]

Womack wrote that the power and responsibility to interpret laws lies with the judicial branch while the executive branch enforces laws made and interpreted by the legislature and courts. He went on to say that by “giving deference to agencies’ interpretations of statutes, the court effectively transfers the job of interpreting the law from the judiciary to the executive. This we cannot do.”[29]

Womack added that the court would review all future agency interpretations of statutes on a de novo basis, which means without relying on the agencies’ conclusions. He wrote that the court would interpret unambiguous laws based on the clear meaning of their texts. In cases where the law in question is ambiguous, he wrote that agency interpretations of that ambiguity would only be one of many tools the court would use to determine the meaning of the law.[29]

Special Justice Scott Hilburn joined the opinion written by Justice Womack. Justice Karen R. Baker concurred with the decision but did not write a separate opinion. Chief Justice Dan Kemp did not participate in the case. Justice Josephine Hart wrote a dissenting opinion focusing on the facts of the case and not judicial deference in general.[29]

Arkansas Supreme Court reiterates Chevron deference prohibition (2020)

The Arkansas Supreme Court on October 29, 2020, clarified in American Honda Motor Co. v. Walther that state courts should not exercise deference to state agency interpretations of statutes (a deference doctrine known as Chevron deference at the federal level). Instead, the court held that Arkansas state courts should review agency statutory interpretations de novo.[30]

The court’s decision reiterated its May 2020 holding in Meyers v. Yamato Kogyo Co. that the court should determine the meaning of state laws and not defer to state agency interpretations of statutes.[30]

In an opinion by Justice Karen Baker, the court cited its earlier holding in Meyers, stating that “it is the province and duty of this Court to determine what a statute means. In considering the meaning and effect of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. An unambiguous statute will be interpreted based solely on the clear meaning of the text. But where ambiguity exists, the agency’s interpretation will be one of our many tools used to provide guidance.”[30]

Wisconsin Legislature ends Chevron deference, codifies Wisconsin Supreme Court ruling (2018)

The Wisconsin Legislature approved legislation on December 5, 2018, that codified the intent of the Wisconsin Supreme Court’s ruling in Tetra Tech, Inc. v. Wisconsin Department of Revenue, which ended the practice of judicial deference to the statutory interpretations of administrative agencies in the state—a doctrine known as Chevron deference in the federal courts. The judicial deference provision was part of a larger legislative package passed by legislators during a lame duck session.[31][32]

The Wisconsin Supreme Court issued a decision in Tetra Tech, Inc. v. Wisconsin Department of Revenue on June 26, 2018. The ruling ended the practice of judicial deference to the statutory interpretations made by administrative agencies in the state. The court stated in the case opinion, "We have also decided to end our practice of deferring to administrative agencies' conclusions of law. However, pursuant to Wis. Stat. § 227.57(10), we will give 'due weight' to the experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments."[33]

The case concerned the Wisconsin Department of Revenue's interpretation of a statute that classified the environmental remediation work of Lower Fox River Remediation LLC and its contracted firm, Tetra Tech EC Inc., as taxable activities. In reviewing the case, the court also considered whether the practice of judicial deference to agency interpretations of statutes, such as the disputed statutory interpretation of the Wisconsin Department of Revenue, undermined the state judiciary's authority to interpret and determine the law. Though the Wisconsin Supreme Court affirmed the lower court's ruling and upheld the agency's interpretation that the companies' work constituted taxable activities, the court also determined that the practice of judicial deference to administrative agencies was contrary to Article VII, Section 2 of the Wisconsin Constitution, which vests judicial power in the state judiciary.[33]

Florida voters approve ballot measure prohibiting judicial deference (2018)

See also: Florida Amendment 6, Marsy's Law Crime Victims Rights, Judicial Retirement Age, and Judicial Interpretation of Laws and Rules Amendment (2018)

The Florida Amendment 6, Marsy's Law Crime Victims Rights, Judicial Retirement Age, and Judicial Interpretation of Laws and Rules Amendment ballot measure, passed by voters on November 6, 2018, prohibited state courts from deferring to an administrative agency’s interpretation of a statute or regulation. The measure required state courts to interpret statutes or rules de novo—that is, without deference to the legal opinions of administrative agencies or previous judgments.[34]

The ballot measure was one of eight constitutional amendments referred to the November 6, 2018, ballot by the Florida Constitution Revision Commission (CRC) on April 16, 2018. The CRC bundled three proposed amendments related to trials, judges, and courts.[34]

Mississippi Supreme Court ends state-level Chevron deference (2018)

On June 7, 2018, the Mississippi Supreme Court issued a decision in King v. Mississippi Military Department that ended the practice of judicial deference to the statutory interpretations made by administrative agencies in the state—a doctrine known as Chevron deference at the federal level. The court stated in the case opinion, "[W]e announce today that we abandon the old standard of review giving deference to agency interpretations of statutes. Our pronouncements describing the level of deference were vague and contradictory, such that the deference could be anywhere on a spectrum from 'great' to illusory. Moreover, in deciding no longer to give deference to agency interpretations, we step fully into the role the Constitution of 1890 provides for the courts and the courts alone, to interpret statutes."[35]

The case concerned a review of the dismissal of Cindy King, a former employee of the Mississippi Military Department. King appealed her dismissal to the Mississippi Employee Appeals Board, which dismissed the case on the grounds that the military department's employment activities were outside of the board's jurisdiction. In reviewing the case, the court also questioned whether the practice of judicial deference to agency interpretations of statutes undermined the state judiciary's authority to interpret and determine the law. Though the court upheld King's dismissal on the grounds that the department's adjutant general has broad statutory discretion over agency employment outside of the scope of the board, the court also determined that judicial deference to agencies conflicted with the constitutional authority of the state judiciary to interpret statutes.[36]

Mississippi Supreme Court reaffirms end of state-level Chevron deference (2020)

The Mississippi Supreme Court on May 28, 2020, unanimously held in a tax and gambling case that a state tax statute requiring judicial deference to a state agency’s interpretation of an unclear law (Chevron deference) was unconstitutional because it prohibited the court from exercising its constitutional duty to interpret the law.[37]

The court reaffirmed its 2018 ruling in King v. Mississippi Military Department, which ended the state-level Chevron deference doctrine on the grounds that the practice violated the separation of powers prescribed by the state constitution. The King decision instituted a new standard of de novo review.[37]

The court further clarified in the tax case that the King decision applied to any state statute requiring the Chevron deference doctrine.[37]

Arizona lawmakers end judicial deference practices (2018)

Arizona Governor Doug Ducey (R) on April 11, 2018, signed into law House Bill 2238, which ended judicial deference practices in the state by instructing courts to decide all questions of law without deference to government agencies, including on matters of constitutional, statutory, and regulatory interpretation. This requirement "applies in any action for judicial review of any agency action that is authorized by law." The law also included two exceptions to this requirement. First, for healthcare-related appeals arising from a specific article of Arizona law, courts are instructed to defer to agencies unless they find that the agency action in question "is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." Second, agencies created pursuant to the Arizona Corporation Commission (the state's utility regulator) are exempt. At the time it was passed, the law was the first of its kind at the state or federal level.[38][39][40]

Utah Supreme Court ends judicial deference practices (2013)

The Utah Supreme Court in 2013 held in Murray v. Utah Labor Commission that the court would no longer defer to agency interpretations of statutes or regulations. The court "distinguished between the distinct concepts of 'discretion' and 'deference,' and noted that while an agency may be given discretion in matters of policy, it could not be delegated deference in matters of law since the correct interpretation of a statute 'has a single "right" answer in terms of the trajectory of the law' and is best resolved by the judiciary without deference," according to administrative law scholar Daniel M. Ortner. The court went on to explicitly reject Chevron deference in the 2014 case Hughes General Contractors Inc. v. Utah Labor Commission and Auer deference in the 2016 case Ellis-Hall Consultants v. Public Service Commission.[25][41]

Kansas Supreme Court ends judicial deference practices (2013)

The Kansas Supreme Court held in the 2013 case Douglas v. Ad Astra Information Systems LLC that the court would no longer defer to agency interpretations of statutes or regulations. Justice Lee A. Johnson wrote in the opinion that the exercise of judicial deference in the state "has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal."[25][42]

Michigan Supreme Court ends Chevron deference (2008)

On July 23, 2008, the Michigan Supreme Court issued a decision in In re: Complaint of Rovas against SBC Michigan that ended the practice of judicial deference to the statutory interpretations made by administrative agencies in the state—a deference doctrine known as Chevron deference in the federal courts. The court stated in the case opinion, "[I]n accordance with longstanding Michigan precedent and basic separation of powers principles, we hold and reaffirm that an agency's interpretation of a statute is entitled to 'respectful consideration,' but courts may not abdicate their judicial responsibility to interpret statutes by giving unfettered deference to an agency's interpretation."[43]

The case concerned the interpretation of a provision of the Michigan Telecommunications Act by the Michigan Public Service Commission (PSC). In reviewing the case, the court questioned whether the practice of judicial deference to agency interpretations of statutes undermined the state judiciary's authority to interpret and determine the law. The court disagreed with the PSC's interpretation of the statute, reversed the decision of the court of appeals, and also determined that judicial deference to agencies conflicted with the constitutional authority of the state judiciary to interpret statutes.[43]

Delaware Supreme Court ends Chevron deference (1999)

The Delaware Supreme Court in 1999 held in Public Water Supply Co. v. DiPasquale that the court would no longer defer to agency interpretations of statutes—a deference doctrine known as Chevron deference in the federal courts. In its decision, the court "overturned past decisions to the contrary, and 'reaffirmed [its] plenary standard of review,'" according to administrative law scholar Daniel M. Ortner.[25][41]

State legislation related to judicial review and deference

The following table lists bills related to judicial review of and deference to administrative decisions that have been introduced in state legislatures. Bills are compiled and monitored by BillTrack50 and sorted by action history.

See also

External links

Footnotes

  1. ↑ 1.0 1.1 Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
  2. ↑ 2.0 2.1 Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
  3. ↑ New York Times, "Trump’s New Judicial Litmus Test: Shrinking ‘the Administrative State’," March 26, 2018
  4. ↑ 4.0 4.1 Duke Law Journal, "JUDICIAL DEFERENCE TO ADMINISTRATIVE INTERPRETATIONS OF LAW," June 1989
  5. ↑ 5.0 5.1 5.2 5.3 The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, January 1, 2008
  6. ↑ Legal Information Institute, "CHRISTENSEN V. HARRIS COUNTY (98-1167) 529 U.S. 576 (2000) 158 F.3d 241, affirmed." accessed September 13, 2017
  7. ↑ JUSTIA, "Skidmore v. Swift & Co.," accessed September 12, 2017
  8. ↑ 8.0 8.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  9. ↑ Notre Dame Law Review, "HIERARCHICALLY VARIABLE DEFERENCE TO AGENCY INTERPRETATIONS," accessed September 12, 2017
  10. ↑ JUSTIA, "Bowles v. Seminole Rock & Sand Co. 325 U.S. 410 (1945)," accessed September 13, 2017
  11. ↑ Yale Law & Policy Review, "The Uneasy Case Against Auer and Seminole Rock," January 28, 2015
  12. ↑ 12.0 12.1 12.2 The Georgetown Law Journal, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," 2008
  13. ↑ State Court Report, "Judicial Deference to Agency Expertise in the States," October 26, 2023
  14. ↑ Goldwater Institute, "Victory! Idaho Becomes Latest State to End Judicial Deference to Administrative State," March 29, 2024
  15. ↑ Idaho Legislature, "House Bill 626" accessed April 3, 2024
  16. ↑ Goldwater Institute, "Victory! Nebraska Ends Judicial Deference to Bureaucrats & Protects Donor Privacy," March 28, 2024
  17. ↑ Nebraska Legislature, "LB43 - Adopt the First Freedom At and the Personal Privacy Act, authorize tribal regalia to be worn by students, change provisions relating to withholding records from the public, provide requirements for interpretation of statutes, rules, and regulations, and prohibit state agencies from imposing certain requirements on charitable organizations," accessed April 3, 2024
  18. ↑ The Goldwater Institute, "Victory! Indiana Ends Judicial Deference to Unelected Government Bureaucrats," March 14, 2024
  19. ↑ Indiana General Assembly, "Actions for House Bill 1003," accessed April 8, 2024
  20. ↑ Ohio Capital Journal, "Ohio Supreme Court decision clears the path for Preble County solar farms," October 23, 2023
  21. ↑ Supreme Court of Ohio, "In re Application of Alamo Solar I, L.L.C." October 18, 2023
  22. ↑ 22.0 22.1 22.2 22.3 Supreme Court of Ohio, "TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors," December 29, 2022
  23. ↑ 23.0 23.1 LegiScan, "Tennessee Senate Bill 2285," accessed May 20, 2022
  24. ↑ 24.0 24.1 24.2 24.3 Colorado Supreme Court, "Nieto v. Clark's Market," June 14, 2021
  25. ↑ 25.0 25.1 25.2 25.3 Yale Journal on Regulation, "The End of Deference: An Update from Mississippi, by Daniel Ortner," June 26, 2021
  26. ↑ JUSTIA, "Mississippi Methodist Hospital & Rehabilitation Center, Inc. v. Mississippi Division of Medicaid et al.," June 10, 2021
  27. ↑ 27.0 27.1 27.2 JDSupra, "Georgia Legislature approves Taxpayer Fairness Act limiting administrative deference," March 23, 2021
  28. ↑ LegiScan, "Georgia Senate Bill 185," accessed May 24, 2022
  29. ↑ 29.0 29.1 29.2 29.3 29.4 Supreme Court of Arkansas, "Meyers v. Yamato Kogyo Co.," April 9, 2020
  30. ↑ 30.0 30.1 30.2 Supreme Court of Arkansas, "American Honda Motor Co. v. Walther," October 29, 2020
  31. ↑ Wisconsin Legislature, "2017 SENATE BILL 884," accessed December 5, 2018
  32. ↑ MacIver Institute, "Republicans Call Extraordinary Session To Protect Legacy Of Reforms," December 3, 2018
  33. ↑ 33.0 33.1 Wisconsin Supreme Court, "Tetra Tech EC, Inc., and Lower Fox River Remediation LLC v. Wisconsin Department of Revenue," June 26, 2018
  34. ↑ 34.0 34.1 Reason Foundation, "Florida Ballot Amendment Analysis: Amendment 6," September 26, 2018
  35. ↑ JD Supra, "Mississippi Supreme Court Rejects Deference to Agency Readings of Statutes," June 11, 2018
  36. ↑ Mississippi Supreme Court, "CINDY W. KING v. MISSISSIPPI MILITARY DEPARTMENT," June 7, 2018
  37. ↑ 37.0 37.1 37.2 Mississippi Supreme Court, "HWCC-Tunica LLC and BSLO LLC v. Mississippi Department of Revenue and Mississippi Gambling Commission," May 28, 2020
  38. ↑ Pace Law Library, "Arizona Passes New Law Limiting Deference to Agencies," April 12, 2018
  39. ↑ Arizona House of Representatives, "House Bill 2238," 2018
  40. ↑ Endangered Species Law and Policy, "Arizona becomes the First State to Eliminate Chevron Deference," April 12, 2018
  41. ↑ 41.0 41.1 SSRN, "The End of Deference: How States (and Territories and Tribes) Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines," 2020
  42. ↑ Kansas Supreme Court, "Douglas v. Ad Astra Information Systems LLC," 2013
  43. ↑ 43.0 43.1 Find Law, "IN RE: COMPLAINT OF ROVAS AGAINST SBC MICHIGAN," July 23, 2008
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The Administrative State
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Reporting
Laws
Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
Cases
Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
Terms
Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography
Agencies
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