State legislatures should end judicial deference to the administrative state.
State legislatures should end judicial deference to the administrative state.
S hould fishermen be forced to pay the salaries of government-mandated observers to ensure that the fishermen comply with federal regulations? When an obscure federal agency called the National Marine Fisheries Service tried to make them pony up, the fishermen sued because Congress never granted the agency authority to impose this extraordinary power. But a federal appellate court deferred to the government and upheld the agency’s actions, causing extraordinary financial hardship for small, often family-owned fishing businesses.
Is a July 4 fireworks display a form of oceanfront “development” because fireworks create smoke? The California Coastal Commission, a little-known state agency that regulates land use along California’s 800-mile coastline, prohibited a town’s fireworks show for that reason. Judges then upheld the commission’s order, deferring to the agency’s head-scratching interpretation and bringing to an end a small town’s annual tourist attraction.
Both cases are examples of the kind of broad deference judges give to government regulators’ interpretation of the law when they make decisions that are later challenged in court. This problem is rampant at all levels of government across the country — and while the problem originated in the federal judiciary, it’s time for state legislators to take action to stop it.
“Deference” is the term lawyers use for letting bureaucracies define legal terms for themselves, which they often do in ways that expand their own authority. These doctrines have aided in the drastic expansion of the administrative state — the unelected branch of government that controls nearly every aspect of American life.
While two parties that appear in court are supposed to be on equal footing, when courts use deference, government regulators get a thumb on the scale in their favor. The result, as Columbia law professor Philip Hamburger put it, is “systematic judicial bias.”
Deference also raises core due-process and separation-of-powers concerns because it prevents judges from impartially reviewing agency decisions that affect real people’s rights. Courts are supposed to exercise independent judgment when interpreting the law, but deference short-circuits this process and concentrates legislative, judicial, and executive power in the hands of regulators — a practice that James Madison rightly labeled “the very definition of tyranny.”
This structural problem is accompanied by a practical one: Regulators know they can create expansive rules, investigate borderline violations, and adjudicate close cases in their own favor because they’re unlikely to lose any court challenge to their actions. This results in more and more rulemaking — much of it arbitrary — and in more investigations, more findings of violation, and, ultimately, bigger, more intrusive government.
Perhaps as a result of these circumstances, Americans and their lawmakers are waking up to the problem of deference to government regulators in an unexpected place: state legislatures.
Much attention has already been paid to the myriad problems that judicial deference to administrative action has created at the federal level. But deference to administrative power is not a uniquely federal issue. In fact, state agencies — probably more so than federal agencies — exercise tremendous power over the lives of everyday Americans. Among other things, state agencies make crucial decisions on matters involving everything from child welfare and parental rights to an individual’s right to operate a business or obtain a license to practice a trade or profession.
Recent efforts to fix the deference problem have focused on the judiciary. Legal scholars such as Hamburger, and U.S. Supreme Court justices such as Neil Gorsuch and Clarence Thomas, have focused on the constitutional problems caused by deference. State supreme courts have also taken strong positions on the legality of various state deference doctrines in recent years. For example, the high courts in Wisconsin, Mississippi, Arkansas, and most recently Ohio have eliminated their state versions of administrative deference.
But such reforms need not come only from the courts. Because many states have copied their own administrative laws from federal law, state legislatures can play a key role in scaling back or eliminating deference.
Arizona’s legislature has already taken the lead. In 2018, it passed legislation developed by the Goldwater Institute eliminating the state’s version of deference. Arizona’s reform has been extraordinarily successful, already resulting in court decisions strengthening the due-process rights of regulated parties as well as the separation of powers.
Other states are now following suit, advancing reforms that have proven surprisingly popular, given that administrative law is a somewhat esoteric area. Georgia lawmakers passed legislation eliminating deference in tax cases by a nearly unanimous vote. Tennessee’s law eliminating deference passed by a nearly three-to-one margin in its house of representatives and an almost five-to-one margin in its senate. And a resounding 62 percent of voters approved Florida’s constitutional amendment ending deference.
This movement must continue. Administrative agencies are a potent threat, not only to individual freedom, but to the democratic idea that the law should be written and adopted by the people’s elected representatives, not by unelected bureaucracies. And deference doctrines undermine the checks-and-balances system that was designed to protect our freedom against overzealous regulators.
Administrative deference is not just a federal problem with a judicial solution. As the reforms in Arizona and elsewhere show, state legislatures can and should lead the way to ensure that citizens affected by government regulations get a fair hearing in court, and that agencies are held accountable for the decisions they make.