Judicial Deference to Agency Expertise in the States

The U.S. Supreme Court will hear two cases this term about how much deference federal courts should give to the expertise federal agencies have in administering statutory directives — possibly upending a decades-old standard of review established by a unanimous Supreme Court.

In Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, the Court will reconsider Chevron deference, a longstanding doctrine that directs federal courts to defer to an agency’s interpretation of its governing statute if the law is silent or ambiguous on the pertinent issue and the agency’s interpretation is reasonable.

Some commentators have suggested that state courts are harbingers of a trend disfavoring doctrines of deference to agency expertise. In support of that view, they point to several state supreme courts that have rejected Chevron-type frameworks. But in fact, 35 states provide for substantial or appreciable deference to agency actions, and states nearly universally acknowledge the unique expertise agencies have to make policy in the public interest.

State courts’ approaches to judicial review of expert-driven policymaking are an essential component of modern governance for several reasons. First, as evidenced by the Covid-19 pandemic, state agencies are often at the forefront of science-based policymaking that impacts the public on a day-to-day basis, more so even than the federal government. Second, as modern issues confronting government policymakers become highly technical and complex, expert-driven policymaking will only become more essential at the local and state levels. Finally, the U.S. Supreme Court’s use of the novel “major questions” doctrine to curtail federal agencies’ authority means more responsibility will fall to the states to handle vast, highly technical issues such as climate change, economic inequality, and threats to public health.

This piece provides an overview of agency deference in the 50 states and Washington, D.C.

Substantial Deference

The judiciaries of 25 states — Alabama, Connecticut, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maine, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Vermont, West Virginia, and Wyoming, plus the District of Columbia — tend to employ robust deference to agency interpretations of the statutes they administer, although the case law in a few states, such as South Dakota, is at times contradictory. And in an 26th state, Utah, where courts generally review agency action without any deference, the supreme court has acknowledged that deference is warranted when the legislature has directed an agency to engage in discretionary decision-making.

The courts in these jurisdictions cite various justifications for using a deferential standard of review for agency decision-making. In many states’ jurisprudence, deference “stems from the recognition that agencies have the specialized expertise necessary to enact regulations dealing with technical matters,” as articulated in a recent New Jersey Supreme Court decision. Some courts, such as those in Alabama and Indiana, recognize that judicial deference promotes uniformity by encouraging reliance upon one interpretation rather than new judicial interpretations each time a policy is challenged.

Notably, while opponents of agency deference at the federal level tend to be conservative, states where courts have employed a deferential standard towards agency expertise have diverse ideological and political majorities, ranging from Georgia and Idaho to Hawaii and Massachusetts. This spread demonstrates how judicial deference has historically remained above politicized debate. The courts of some states, such as Maine, South Carolina, and West Virginia, adopted the Chevron framework nearly wholesale. Others, including Nevada, Oklahoma, Oregon, and Pennsylvania, established their own deferential standards well before Chevron articulated the federal standard and have continued to develop their frameworks over time.

For instance, whereas many states base their doctrines of deference upon the presence of statutory ambiguity, Oregon courts look at the specific statutory term in question in a case. When the term is not defined in the statute and implicates policy judgments or several possible interpretations, it is deemed “delegative.” “Delegative terms” have “incomplete legislative meaning that the agency is authorized to complete,” and judges defer to agencies to do so. For example, in Oregon Occupational Safety & Health Division v. CBI Services, the Oregon Supreme Court deferred to the agency’s definition of the statutory terms “reasonable diligence” and “serious violation” in the Oregon Safe Employment Act due to the agency’s distinctive ability to define those terms in the workplace context.

Appreciable Deference for Agency Expertise

Courts in nine states — Alaska, California, Iowa, Missouri, Montana, North Carolina, North Dakota, Virginia, and Washington — give agencies’ interpretations “considerable weight” or “appreciable deference.” In many of these jurisdictions, courts defer to agency expertise when interpreting technical language, while applying a less deferential standard to evaluate agency interpretations of general statutory terms (e.g., “respectful consideration”). Those courts reason that agencies are uniquely situated to persuade the court of particular interpretations of technical statutes. For instance, in Missouri, courts “defer to the expertise of an administrative agency in reaching decisions based on scientific and technical data.” Courts in Alaska and California are more deferential to longstanding agency interpretations than new ones. And in Iowa and California, courts afford more deference if the state legislature has expressly granted interpretive discretion to the agency.

Due Weight for Agency Interpretations

The judiciaries of 10 states — Arkansas, Colorado, Delaware, Louisiana, Maryland, Michigan, Minnesota, Nebraska, Ohio, and Wisconsin — acknowledge that agency interpretations of a statute may be helpful in judicial review and tend to give them “due weight,” recognizing their persuasive power. This approach tracks a federal doctrine called Skidmore deference, which predated Chevron and stated that the value of agency action depends on the thoroughness of the agency’s consideration of the legal question, the validity of its reasoning, and its consistency with related actions, which together give the agency “power to persuade, if lacking power to control.” In adopting a similar approach, courts in many of these states base their review of agency action off indicia such as technical complexity, procedural rigor, and adherence to legislative intent. Some of these courts, such as those in Michigan and Minnesota, adopted these standards of judicial review before the U.S. Supreme Court rendered the Chevron decision.

No Deference

Five states — including three (Arizona, Florida, and Mississippi) that were previously known for their substantial deference doctrines — have abolished judicial deference to agency expertise either through judicial opinion (Kansas and Mississippi), statute (Arizona and Tennessee), or constitutional amendment (Florida). Many of these new developments were supported by groups with ties to major conservative political donors, as is also the case with federal efforts to end judicial deference to agency expertise.

However, even states that have disavowed deference to agency decision-making may not fully deny agencies’ competence to assess matters within their longstanding expertise. For example, Arizona’s new statute banning judicial deference maintains an exception for appeals related to healthcare and utilities regulation, both highly technical subjects. And in the case in which the Mississippi Supreme Court abolished deference, the court nevertheless upheld the challenged Mississippi Employee Appeals Board decision.

The intent behind Florida’s 2018 constitutional amendment to ban judicial deference to agency expertise is likewise uncertain. The measure appeared on the ballot with the misleading title “Rights of Crime Victims; Judges,” and was packaged with measures asserting rights for crime victims and raising the retirement age for judges.

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State deference doctrines vary, but there is broad recognition that agencies have unique expertise to craft policy. To be sure, there are differences between state and federal systems that may justify different judicial approaches to agency expertise. For example, unlike federal agency heads, who are typically appointed, state agency heads are sometimes elected, as are many state judges. State executives also often exert less control over agencies than the president does over federal executive branch departments. Additionally, state agencies tend to have smaller expert staffs than their federal counterparts. These variations impact the expertise as well as the democratic accountability of both agencies and courts.

Nevertheless, one thing is clear: modern society requires expert-driven policymaking to address urgent contemporary challenges. The government agencies created by legislatures are essential to those endeavors.

If the scope of federal administrative power continues to be curtailed, state courts’ recognition of the value of agency expertise may serve as a critical bulwark for evidence-based policymaking. Otherwise, government at all levels will be far less capable of addressing contemporary societal issues in a competent and efficient manner at a time when science-based solutions are more critical than ever.

Martha Kinsella is a senior counsel at the Brennan Center for Justice. 

Benjamin Lerude is a student at New York University School of Law and an intern at the Brennan Center for Justice.