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Judicial deference: A 50-state survey (2020)

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This survey is part of a series of 50-state surveys examining the five pillars key to understanding the administrative state
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Disclaimer: The research presented on this page was completed in 2020. It has not been regularly updated since its completion. This page is likely outdated and may be incomplete.

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This page compares results from a series of Ballotpedia surveys about judicial deference, one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. Ballotpedia reviewed all 50 state constitutions and administrative procedures acts (APAs) to see how each state approached judicial deference as of 2020.

This article shows how state approaches to judicial deference compared with one another based on the following questions:

For each survey question, Ballotpedia labeled a state as yes or no based on whether the state gave more or less power to its administrative state.

You can find the results of other Ballotpedia surveys here.

This page features the following sections:

In 2025, Ballotpedia updated the pillar system used to understand the main areas of debate about the nature and scope of the administrative state. Click here to learn more about this updated structure and to see Ballotpedia's current content related to the administrative state.

Methodology

What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.

Ballotpedia examined all 50 state constitutions and Administrative Procedure Acts (APAs) to see how states approached judicial deference in their foundational laws. Administrative Procedure Acts (APAs) govern the procedures state administrative agencies must follow to issue regulations and adjudicate disputes. The particular procedures outlined in each APA vary among the 50 states.

For each survey question, Ballotpedia labeled a state as yes or no based on whether the state gave more or less power to its administrative state.

Other state laws that might have addressed how a state approaches judicial deference are beyond the scope of this survey.

To see the specific legal provisions Ballotpedia used to categorize each state, click here.

Summary of key findings

Ballotpedia's survey of state constitutions and APAs produced the following key takeaways (as of November 2020):

  • 45 states had nos for every judicial deference question. That means those states did not have restrictions on judicial deference in their foundational laws.
  • Five states had at least one yes for judicial deference questions.
Those states were: Arizona, Colorado, Florida, Nebraska, and Wyoming

Table showing how states approached judicial deference

The table below includes each state in alphabetical order and indicates how specific provisions in their constitutions or APAs addressed executive control of agencies. Ballotpedia evaluated each state according to the following questions:

  • Does the state APA or constitution always require state courts to review administrative agency decisions de novo?
  • Does the state APA or constitution impose different standards of review for agency actions in criminal versus civil cases?

For the answers:

  • Yes means that the state's APA or constitution limited the power of the administrative state
  • No means that the state APA or constitution expanded or did not limit the power of the administrative state
  • The numbers on the right side of the table indicate how many yeses and nos each state had

Other state laws that might address how a state approaches judicial deference are beyond the scope of this survey.

State De novo review Criminal/Civil distinction Yeses Nos
Alabama No No 0 2
Alaska No No 0 2
Arizona Yes No 1 1
Arkansas No No 0 2
California No No 0 2
Colorado Yes No 1 1
Connecticut No No 0 2
Delaware No No 0 2
Florida Yes No 1 1
Georgia No No 0 2
Hawaii No No 0 2
Idaho No No 0 2
Illinois No No 0 2
Indiana No No 0 2
Iowa No No 0 2
Kansas No No 0 2
Kentucky No No 0 2
Louisiana No No 0 2
Maine No No 0 2
Maryland No No 0 2
Massachusetts No No 0 2
Michigan No No 0 2
Minnesota No No 0 2
Mississippi No No 0 2
Missouri No No 0 2
Montana No No 0 2
Nebraska Yes No 1 1
Nevada No No 0 2
New Hampshire No No 0 2
New Jersey No No 0 2
New Mexico No No 0 2
New York No No 0 2
North Carolina No No 0 2
North Dakota No No 0 2
Ohio No No 0 2
Oklahoma No No 0 2
Oregon No No 0 2
Pennsylvania No No 0 2
Rhode Island No No 0 2
South Carolina No No 0 2
South Dakota No No 0 2
Tennessee No No 0 2
Texas No No 0 2
Utah No No 0 2
Vermont No No 0 2
Virginia No No 0 2
Washington No No 0 2
West Virginia No No 0 2
Wisconsin No No 0 2
Wyoming Yes No 1 1

See also

Footnotes

v • e
The Administrative State
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Pillars
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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