Email: Learning Journey: Deference Day 3

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  Today, we look at deference at the state level.

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Welcome back! Today, we look at deference at the state level. We also examine the future of deference and potential proposals for reform.     Deference in the states At least thirty-six states have implemented forms of judicial deference to state administrative agencies similar to the federal deference doctrines discussed in the earlier installments. The following five states, however, have taken steps to limit or eliminate deference: Wisconsin: The Wisconsin Legislature in December 2018 codified the intent of a Wisconsin Supreme Court decision that eliminated judicial deference to state agencies. Florida: Voters in Florida approved a ballot measure in November 2018 that prohibited courts from deferring to state agency interpretations of rules in legal cases. Mississippi: The Mississippi Supreme Court issued a decision in June 2018 that ended judicial deference to state agencies. Arizona: Governor Doug Ducey (R) signed legislation into law in April 2018 requiring state courts to decide all questions of law without deference to government agencies. Michigan: The Michigan Supreme Court issued a decision in July 2008 that ended judicial deference to state agencies.   Read On: State responses to judicial deference Pop quiz! Which of the following options is NOT one of the three most common forms of deference? A. Chevron deference B. Auer deference C. City of Arlington deference D. Skidmore deference The future of deference Judicial deference as a doctrine faces an uncertain future. Chevron deference in particular has been seen as "entering a period of uncertainty, after long seeming to enjoy consensus support on the Court,” according to administrative law scholar Michael Kagan. What has emerged since 2015, according to Kagan, has been a period "in which it seems that the Court may be more willing to explicitly refine the doctrine, to limit its application in certain ways, and to articulate new exceptions." Read On: Chevron and a new period of uncertainty   Deference reform proposals Administrative law scholars and government officials have proposed various approaches to reforming deference. The following is a selection of reform proposals: Legislative approaches: The Separation of Powers Restoration Act (SOPRA) and the Regulatory Accountability Act (RAA) are two legislative proposals that would limit or eliminate judicial deference to agencies in cases where there is a dispute about the meaning of a statute or regulation.  Judicial approaches: The United States Supreme Court could narrow the scope of Chevron deference by (1) declining to apply the doctrine to questions of economic and political significance, (2) applying a context-specific inquiry into congressional intent, and (3) improving the resolution of statutory ambiguity. The court could also narrow the scope of Auer deference to limit the ability of judges to defer to agencies' interpretations of their own regulations. Executive approaches: The executive branch could instruct agencies to use cost-benefit analysis when issuing new regulations. Paul R. Noe, a former Office of Information and Regulatory Affairs (OIRA) staff member during the George W. Bush administration, suggested that the next president could direct “agencies, including independent agencies, to reexamine their statutory interpretations … and, 'unless prohibited by law,' implement those statutes through cost-benefit balancing.”   Read On:   Reform proposals related to judicial deference   What’s next? In the next email, we’ll recap the highlights of our Learning Journey.   Review State responses to judicial deference Chevron and a new period of uncertainty Reform proposals related to judicial deference