Reform proposals related to judicial control of the administrative state
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Judicial control of agencies is one of five pillars used to understand Ballotpedia's coverage of the administrative state. It focuses on the balance of power between administrative agencies and the courts.
Judicial control is a central concept in the debate over the nature and scope of the administrative state. It involves two primary components: judicial review of agency rules and judicial deference. Judicial review refers to the courts' authority to examine and potentially overturn agency actions or rules. Judicial deference, on the other hand, occurs when a court defers to an agency's interpretation of a statute or regulation it has issued. In other words, when a law or regulation is challenged in court, the agency’s interpretation is upheld if it is deemed reasonable, even if the court would prefer a different interpretation.
This page contains reform proposals related to executive control of the administrative state. Ballotpedia has identified three major types of reform categories related to executive control:
- Judicial deference: This category includes proposals that address how much deference courts should give to administrative agencies when interpreting laws.
- Judicial review: This category includes proposals to change how courts review agency actions, especially in terms of legal authority and cost-based assessments.
- Judicial structure and venue: This category includes proposals aimed at changing how, where, and through what procedures regulated entities can seek judicial review of agency actions.
Judicial deference
This category includes proposals that address how much deference courts should give to administrative agencies when interpreting laws. The reforms either seek to limit, preserve, or codify judicial deference.
Limiting deference
This subcategory includes proposals aimed at reducing or eliminating the deference courts give to agencies when reviewing agency interpretations of statutes.
- In Loper Bright Enterprises v. Raimondo (2023), the U.S. Supreme Court overturned Chevron deference, ruling that courts should not automatically defer to agencies' interpretations of ambiguous statutory provisions. The Court’s majority emphasized that judicial review should ensure agencies do not expand their authority beyond what Congress intended, marking a shift away from relying on agency expertise to interpret the law.[1]
- In West Virginia v. Environmental Protection Agency, the U.S. Supreme Court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff. Post-decision commentary questioned how the decision could affect other delegations of authority and whether the major questions doctrine would replace Chevron deference as the court’s preferred tool for reviewing challenges to agency authority.[2][3]
- Separation of Powers Restoration Act (SOPRA): This reform proposal would eliminate Chevron and Auer deference by amending the Administrative Procedure Act to require courts to review agency actions de novo —without deferring to agency interpretations. SOPRA was first introduced in the 114th Congress and has been reintroduced in subsequent sessions.[4][5][6][7][8]
- Regulatory Accountability Act (RAA): This reform proposal aimed to amend the Administrative Procedure Act (APA) to change how agencies make rules, how courts review agency decisions, and how regulatory impacts are measured. The judicial review portion of the bill included provisions from SOPRA that would have required de novo review of agency interpretations of the Constitution, laws, and regulations. It also would have prohibited courts from interpreting statutory ambiguities as implicit delegations of authority to agencies and blocked deference to agency determinations on regulatory costs, benefits, and interim rules or guidance. The bill did not pass the 115th Congress but was reintroduced in the 118th United States Congress by Rep. Beth Van Duyne (R) and Sen. James Lankford (R).[9][10][11]
- Law professor Christopher J. Walker wrote, “Some scholars have argued that Auer deference should resemble the less deferential Skidmore standard more than its current formulation as a rule-based Chevron doctrine.”
- Walker wrote, "Some scholars argue that Auer should be limited—much like the Supreme Court limited Chevron in Mead—to focus on procedural formality and congressional delegation.”
State legislatures have taken various approaches to limit or eliminate judicial deference to administrative agencies. These measures typically require courts to interpret statutes or rules de novo—without deferring to agency interpretations. Some states have enacted broad prohibitions on judicial deference, while others have focused on specific policy areas such as tax law.
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.[12]
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.[12]
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. [13][14]
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.[13]
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.[13]
Wisconsin Legislature ends judicial deference to agencies, 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 2018 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.[15][16]
Tetra Tech, Inc. v. Wisconsin Department of Revenue ended the practice of judicial deference to the statutory interpretations made by administrative agencies in Wisconsin. The court stated, "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."[17]
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.[17]
Florida ballot measure prohibiting courts from deferring to state agency’s interpretation of rules in legal cases approved (2018)
This 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. It was approved on November 6, 2018. The CRC bundled three proposed amendments related to trials, judges, and courts into this one ballot measure. The third part of the measure prohibits state courts from deferring to an administrative agency’s interpretation of a statute or rule in legal cases. The measure requires state courts to interpret statutes or rules de novo—that is, without deference to the legal opinions of administrative agencies or previous judgments.[18]
Arizona law limited judicial review of state administrative decisions (2018)
On April 11, 2018, Arizona Governor Doug Ducey (R) signed House Bill 2238 into law. The law amended Arizona Revised Statutes §12-910, which addresses judicial review of administrative decisions. H.B. 2238 instructs courts handling proceedings between an agency and regulated party 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.[19][20][21]
Require judges to interpret laws without deference
This reform proposal would have judges interpret laws on a de novo basis, meaning they would apply their own interpretations of ambiguous laws instead of deferring to those made by agency officials.
- Law professor Philip Hamburger wrote in a law review article, "Even when Congress leaves profound ambiguities in its authorizing statutes, the judges can deal with the indeterminacy by recognizing the modesty of the traditional duty of judges to expound. Judges have never had a duty to find a meaning for a constitution or statute come hell or high water. Instead, they traditionally had a duty to expound the law—to find and enunciate the law’s meaning (as far as necessary to resolve a case)—but not to go so far as to impose a meaning."
- From this perspective, as has been explained elsewhere, when judges reach the point at which they no longer can discern the meaning of a statute, they should not attribute meaning to it. In other words, where a statute—considered in its context and with canons of interpretation and other aids to construction—reveals its meaning, judges should expound the statute; but where the statute is so profoundly ambiguous that it reveals no more meaning, judges should simply stop. At that point, the statute has nothing more to say."[22]
Codifying or adjusting deference
This subcategory includes proposals that seek to formally define or revise the rules governing judicial deference.
Codify judicial deference
This reform proposal aims to enshrine existing deference practices into law to provide clarity and consistency.
- Stop Corporate Capture Act: This reform proposal aims to enact broad changes to the regulatory process, including codification of the Chevron deference doctrine. U.S. Representative Pramila Jayapal (D-Wash.) first introduced the bill on December 1, 2021, in the 117th Congress. The bill did not pass but was reintroduced on March 9, 2023, in the 118th United States Congress.[23][24]
Arguments against judicial deference reform
This approach argues for the current system of judicial deference to agency interpretations of laws and regulations. The following claims defend that position.
Chevron is the most plausible method to determine what statutes mean
- Justice Antonin Scalia said in a speech, “If the Chevron rule is not a 100% accurate estimation of modem congressional intent, the prior case-by-case evaluation was not so either-and was becoming less and less so, as the sheer volume of modem dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the ‘genuine’ legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.”[25]
Removing Chevron would empower judges at the expense of the American people
- Attorney T.J. McCarrick wrote, “So, what—if not Chevron—accounts for the continued expansion of the administrative state? Conscious political choice. Congress and the President ensure bureaucratic growth in their passage and implementation of laws. And voters, not courts, must hold them accountable. Eliminating deference only elevates judges. That begets smaller government, but only of a kind—the unelected, life-tenured variety. Indeed, in the post-Chevron world, judges would likely replace the political choices of indirectly accountable agency officials with their own. Ambiguities would confront courts with a Rorschach test; what judges see would say a great deal more about their political preferences than congressional intent or statutory meaning.”[26]
Strict-constructionist judges should not fear Chevron
- Antonin Scalia argued that strict-construction approaches to statutory interpretation limit the application of Chevron.[25] He says, “In my experience, there is a fairly close correlation between the degree to which a person is (for want of a better word) a ‘strict constructionist’ of statutes, and the degree to which that person favors Chevron and is willing to give it broad scope. The reason is obvious. One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt. Contrariwise, one who abhors a 'plain meaning' rule, and is willing to permit the apparent meaning of a statute to be impeached by the legislative history, will more frequently find agency-liberating ambiguity, and will discern a much broader range of ‘reasonable’ interpretation that the agency may adopt and to which the courts must pay deference. The frequency with which Chevron will require that judge to accept an interpretation he thinks wrong is infinitely greater.”[25]
Judicial review
This category includes proposals to change how courts review agency actions, especially in terms of legal authority and cost-based assessments.
Judicial review of agency action
This subcategory covers proposals that focus on the legal standards courts should use when reviewing agency decisions.
Modify the role of judicial review in agency action
This reform proposal suggests changing how extensively courts evaluate the legality of agency actions.
- Law professors Jacob Gersen and Adrian Vermeule proposed that courts abandon hard look review, which requires agencies to provide extensive justifications for their decisions. They argue that reducing judicial scrutiny would allow agencies to operate more efficiently and make decisions based on expertise rather than judicially imposed procedural requirements.
Require courts to adopt de novo review of agency actions
Courts would independently review agency decisions without deferring to the agency’s interpretation, ensuring neutral, thorough judicial oversight.
Enacted state legislation
- Idaho House Bill 626: This bill mandates that courts conduct de novo review of agency interpretations of state law and rules, without deferring to the agency, while affirming or setting aside agency actions based on constitutional, procedural, or evidentiary grounds.
Require courts to adopt strict construction of statutory language
This proposal mandates that courts interpret statutes strictly according to their text, limiting agency discretion, and preventing overreach from ambiguous language.
Allow legal challenges to enforcement actions based on guidance
This reform would allow regulated parties to challenge enforcement actions based on non-binding guidance documents, ensuring agencies do not impose de facto rules without proper rulemaking procedures.
Best means test through judicial review
This reform proposal would require that a rule can only take effect if it is shown to be the best means of achieving its policy objective, with courts empowered to assess that justification as part of judicial review or in response to a public challenge.
Review of cost-based rules
This subcategory includes proposals allowing courts to review agency rules based on their economic impact or cost-benefit rationale.
Allow judicial review of regulations based on costs exceeding benefits
This reform would enable courts to overturn regulations if their costs outweigh the benefits, ensuring agencies account for economic impacts before implementing rules.
- In Michigan v. EPA (2015), the U.S. Supreme Court ruled that the EPA must consider regulatory costs. Justice Scalia noted, "The Agency must consider cost... including, of course, the cost of compliance." [27]
Allow judicial review of cost-benefit analysis methodology
Courts would have the authority to review the methodologies agencies use in cost-benefit analyses, ensuring objectivity and transparency in regulatory decisions.
- Law professors W. Kip Viscusi and Caroline Cecot stated that "courts have been willing to question BCA methodology and assumptions and request more transparency on these issues." [28]
- Professor Victor Flatt argued, "Courts should examine so-called 'objective' evidence for accuracy to curb abuses of benefit-cost analysis and improve its use in practice." [29]
Allow judicial review of rules based on cost imposed on an entity's economic means
This proposal allows courts to review regulations to determine if compliance costs exceed an entity’s financial capacity, particularly for small businesses.
- The Regulatory Flexibility Act (RFA) allows small entities to challenge regulations if they believe their economic impact was not properly assessed. [30]
Court should require agencies to use cost-benefit analysis when issuing new rules
This reform proposal would require agencies to justify new rules through cost-benefit analysis subject to judicial oversight.
Judicial oversight of agencies
This category includes reforms that shift adjudicative authority and oversight from executive agencies toward the judicial branch, particularly Article III courts.
Adjudication structure
This subcategory includes proposals to transform or eliminate the existing system of agency adjudicators in favor of structures that increase judicial independence or limit executive influence.
Transform agency adjudicators into adjuncts of Article III courts
This proposal aims to resolve an alleged tension in administrative adjudication between political accountability for adjudicators and due process for those with cases before agencies. Law professor Christopher J. Walker discussed that tension in a 2019 law review article.[31]
- In his law review article, Walker wrote that Congress could change agency adjudicators into adjuncts of courts established by Article III of the U.S. Constitution. That change is designed to make sure that political control of adjudicators through the president's appointment and removal power does not lead to partisan meddling in what should be neutral adjudication.[31]
- Walker discussed the following different ways Congress could achieve the goal of making adjudicators into adjuncts of a court:
- First, he wrote that Congress could eliminate Chevron deference to their adjudication decisions involving questions of law. By restricting how much courts would rely on the legal interpretations offered by these agency officials, Congress would put Article III judges in more control of how to apply the law in different cases.[31]
- Next, Walker wrote that Congress could restrict the availability of agency adjudication of private rights (disputes between private parties) to make sure that only officials who were adjuncts of courts could perform those adjudications.[31] Walker listed three criteria for such adjuncts, citing Stern v. Marshall (2011): "First, Congress must limit such adjudication to agencies 'that oversee particular substantive federal regimes.' Second, the agency adjudicator must have 'only limited authority to make specialized, narrowly confined factual determinations regarding a particularized area of law.' Third, the agency adjudication must have the authority 'to issue orders that could be enforced only by action of the District Court.'"[31]
Replace Article II adjudicators with Article III adjudicators
This proposal aims to resolve an alleged tension in administrative adjudication between political accountability for adjudicators and due process for those with cases before agencies. Law professor Christopher J. Walker discussed that tension in a 2019 law review article.[31]
- In his law review article, Walker discussed the idea that Congress could pass a law to replace agency adjudicators controlled by Article II of the U.S. Constitution with administrative law judges (ALJs) controlled by Article III of the U.S. Constitution. Article II established the executive branch of the federal government while Article III established the judicial branch. Walker mentioned the following variations on this proposal:[31]
- Congress could expand the size of the federal judiciary to handle the increased workload that would follow taking on responsibility for all of the adjudication decisions now made by administrative agencies.
- Congress could pass a more limited law that targeted 158 administrative adjudicators with the power to exert significant regulatory control and issue civil monetary penalties. The law could replace those adjudicators with ALJs appointed by the president and confirmed by the U.S. Senate, like other federal judges.
- Congress could replace all of the nearly 2000 agency ALJs with ALJs subject to Article III requirements (presidential approval and U.S. Senate confirmation).
Establish independent administrative law courts
This reform proposal would create a new, independent court system outside of executive agencies to handle administrative adjudications.
Prohibit agency directors from reversing ALJ findings of innocence
This reform proposal would prevent agency heads from overturning administrative law judge (ALJ) decisions in favor of regulated parties, strengthening due process protections.
Judicial oversight of executive actions
This subcategory contains reforms aimed at applying judicial review standards to actions taken directly by the president.
Apply the judicial review provisions of the Administrative Procedure Act to the president
Advocates of this proposal argue that the judicial review provisions of the Administrative Procedure Act (APA) should apply to the president and those who work for him.[32]
- Law professor Alan Morrison argued that "with so many rights and obligations established by statutes or rules, and not the Constitution, enabling the president to escape judicial review of sub-constitutional claims is inconsistent with the concept of the rule of law."[32] He added, "Much as I would like to see the APA amended tomorrow to make the president subject to judicial review under it, the idea is not ready for enactment. That will require a careful study of the kinds of actions that Congress has authorized the president to take and the laws that govern them to be sure that the proper balance is struck between assuring that the President [sic] obeys the law and tying his hands by unreasonably limiting his discretion to govern."[32]
Judicial structure and venue
This category includes proposals aimed at changing how, where, and through what procedures regulated entities can seek judicial review of agency actions.
Allow regulated entities to seek judicial review in state courts without exhausting administrative remedies
This reform would allow regulated entities to bring their cases directly to state courts if they believe their constitutional rights have been violated, bypassing administrative remedies.
Establish independent administrative law courts
This reform would create separate administrative law courts to reduce executive influence over adjudications and improve judicial independence in agency disputes.
Use Article III courts instead of agency adjudication
This reform proposal would shift responsibility for adjudicating certain regulatory disputes from administrative agencies to federal courts, emphasizing judicial neutrality and constitutional safeguards.
See also
- Deference (administrative state)
- Chevron deference
- Skidmore deference
- Auer deference
- Taxonomy of arguments about judicial deference
- Judicial deference: a timeline
- List of court cases relevant to judicial deference to administrative agencies
- List of legislation relevant to judicial deference to administrative agencies
- List of executive orders relevant to judicial deference to administrative agencies
- List of scholarly work pertaining to judicial deference to administrative agencies
- Scholarly work related to judicial deference to administrative agencies
- United States Supreme Court
- Administrative state
Footnotes
- ↑ U.S. Supreme Court, "22-451 LOPER BRIGHT ENTERPRISES V. RAIMONDO," accessed February 1, 2025
- ↑ United States Supreme Court, "West Virginia v. Environmental Protection Agency," June 30, 2022
- ↑ Reuters, "U.S. Supreme Court just gave federal agencies a big reason to worry," June 30, 2022
- ↑ Competitive Enterprise Institute, "Primer on the Separation of Powers Restoration Act," William Yeatman, accessed March 26, 2019
- ↑ Congress, "H.R.4768 - Separation of Powers Restoration Act of 2016," accessed March 26, 2019
- ↑ Congress, "H.R.76 - Separation of Powers Restoration Act of 2017," accessed March 26, 2019
- ↑ United States Senate, "Sasse, Colleagues Introduce Separation of Powers Restoration Act of 2019," March 27, 2019
- ↑ Congress.gov, "H.R.288 - SOPRA," accessed August 28, 2023
- ↑ Congress, "H.R.5 - Regulatory Accountability Act of 2017," accessed March 26, 2019
- ↑ Congress.gov, "H.R.422 - Regulatory Accountability Act," accessed August 28, 2023
- ↑ Congress.gov, "S.1615 - Regulatory Accountability Act," accessed August 28, 2023
- ↑ 12.0 12.1 LegiScan, "Tennessee Senate Bill 2285," accessed May 20, 2022
- ↑ 13.0 13.1 13.2 JDSupra, "Georgia Legislature approves Taxpayer Fairness Act limiting administrative deference," March 23, 2021
- ↑ LegiScan, "Georgia Senate Bill 185," accessed May 24, 2022
- ↑ Wisconsin Legislature, "2017 SENATE BILL 884," accessed December 5, 2018
- ↑ MacIver Institute, "Republicans Call Extraordinary Session To Protect Legacy Of Reforms," December 3, 2018
- ↑ 17.0 17.1 Wisconsin Supreme Court, "Tetra Tech EC, Inc., and Lower Fox River Remediation LLC v. Wisconsin Department of Revenue," June 26, 2018
- ↑ Constitution Revision Commission, "Proposal Analysis - P6," January 29, 2018
- ↑ Pace Law Library, "Arizona Passes New Law Limiting Deference to Agencies," April 12, 2018
- ↑ Arizona House of Representatives, "House Bill 2238," 2018
- ↑ Endangered Species Law and Policy, "Arizona becomes the First State to Eliminate Chevron Deference," April 12, 2018
- ↑ Philip Hamburger, "Chevron Bias, The George Washington Law Review, Vol. 84, No. 5 (September 2016)
- ↑ Congress.gov, "Stop Corporate Capture Act," accessed January 24, 2023
- ↑ H.R. 1507 - Stop Corporate Capture Act," accessed August 28, 2023
- ↑ 25.0 25.1 25.2 Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)
- ↑ T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
- ↑ Justia, "Michigan v. EPA," June 29, 2015
- ↑ Vanderbilt Law School Faculty Publications, "Judicial Review of Agency Benefit-Cost Analysis," accessed February 4, 2025
- ↑ William and Mary Bill of Rights Journal, "The ‘Benefits’ of Non-Delegation," 2007
- ↑ Small Business Administration, "The Regulatory Flexibility Act", accessed Feb. 6, 2025
- ↑ 31.0 31.1 31.2 31.3 31.4 31.5 31.6 Iowa Law Review, "Constitutional Tensions in Agency Adjudication," accessed August 26, 2020
- ↑ 32.0 32.1 32.2 Cite error: Invalid
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