State agencies exercise immense power. They can discipline, fine, and even recommend criminal penalties for alleged rule violations. Agencies frequently use experts to interpret and implement statutes, effectively extending themselves the same power and authority in the rule-making process as judges and legislators.
They not only make the rules, but also investigate and adjudicate violations with an administrative law judge employed by the agency. In other words, unelected administrators are empowered to be “lawmaker, sheriff, judge, and jury,” as Goldwater Institute Vice President Jon Riches wrote.
It's the old, “We have investigated ourselves and found no wrongdoing,” gambit.
As of April 2020, in all but 14 states, if an alleged rule violation makes it past the administrative judge to an actual court, that court is required to defer to the agency interpretation unless it is plainly erroneous. This is an unusual position for courts to be required to take. Courts adjudicate disputes all the time without putting their thumb on the scales of justice. Agency disputes appear to be the only time courts throw up their hands and defer to one party’s interpretation of a statute.
Idaho proposes “de novo” review of agency rule disputes
In Idaho, HB 562 would prohibit judicial deference by amending the state’s Administrative Procedures Act (APA).
Idaho’s APA already has language directing that an Idaho court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact,” but the proposed amendment goes much further. From HB 562:
“When interpreting the provisions of this chapter or any rule, as defined in [the APA], Idaho Code, the court shall not defer to an agency's interpretation of the provisions of this chapter or the rule and shall interpret the meaning and effect de novo. In an action brought by or against an agency, after applying all customary tools of interpretation, the court shall exercise any remaining doubt in favor of a reasonable interpretation that limits agency power and maximizes individual liberty.”
If passed, the new standard would require courts to interpret agency rules de novo, meaning without consideration for the agency’s position, judgment, or interpretation of the statute from which the rule was derived. Without such direction, courts will defer to an agency’s interpretation of ambiguous statutes.
The U.S. Supreme Court, for example, has deferred to agency interpretation for nearly four decades in the wake of Chevron v. Natural Resources Defense Council. However, the Court heard oral argument last month challenging that deference doctrine and a majority appears poised to abandon it.
Since 2020, several states have curtailed or ended judicial deference to agency interpretations of ambiguous statutes, including Ohio, Tennessee, Colorado, Mississippi, Georgia, and Arkansas, either through state supreme court decisions or legislative action.
Under de novo review, a court may still land on an agency’s interpretation of a statute, it simply means they are not required to preload the justice scales in favor of that outcome. Agency deference undermines the court’s rule to decide what a statute says and what it means—instead handing that duty over to the agency.
Wyoming puts federal government on notice
Meanwhile, shots were fired in Wyoming (not literally), where the Legislature has had it with federal rulemaking that does not “respect the custom and culture of Wyoming.” In a House Joint Resolution, Wyoming legislators urge support for meaningful local input in drafting and developing proposed federal rules and “commit to oppose….proposed federal rules, resource management plans and environmental impact statements that negatively affect…Wyoming’s agriculture, energy, mineral and recreation industries…” The resolution takes specific aim at the actions of the Federal Bureau of Land Management and the U.S. Department of Agriculture.
These are positive developments for the mountain states, where legislators are signaling their intent and desire to stop agency end-runs around the legislative process. Administrative agencies need to be kept in check. Elected legislators are just the folks to do it.