The End of Deference: How States Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines

54 Pages Posted: 18 May 2020

Date Written: March 11, 2020

Abstract

Deference doctrines such as Chevron and Auer continue to receive attention and criticism by members of the judiciary including members of the Supreme Court. In Kisor, the Supreme Court recently considered whether to overturn Auer and stop deferring to administrative interpretations of their own regulations. Supporters of deference to administrative agencies issued dire warnings that without deference the administrative state would be unable to properly function. Ultimately, a fractured Supreme Court issued a decision which retained Auer deference, but sharply limited the circumstances when it would apply.

However, while the Supreme Court has chosen incremental reform rather than a more dramatic rejection of deference doctrines, several states in recent years have made a different and more dramatic decision. At least six state supreme courts have issued decisions that seem to reject either Chevron or Auer like deference (or both). And at least two more states have states have rejected deference via legislation or referendum. There are also other signs that the anti-deference momentum is continuing at the state level. Vocal deference critics have increasingly popped up on several state supreme courts. Finally, other states have followed the incremental pathway of the Supreme Court in growing increasingly skeptical towards claims of deference. All of this can be described as a (sometimes quiet) revolution.

Despite all of these changes there has not been an article conducting a thorough state-by-state survey of state deference doctrines since 2008. This article fills in that significant gap. I categorize states into six categories: 1) States that have expressly rejected deference; 2) States that expressly employ Skidmore deference; 3) States that employ some types of deference but not other types of deference; 4) States that have grown more skeptical of deference in recent years as evidenced by either narrowing decisions or vocal voices of opposition; 5) States whose decisions are woefully inconsistent such that it is hard to categorize them; and 6) States that fully extend Chevron and Auer deference.

Suggested Citation

Ortner, Daniel, The End of Deference: How States Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines (March 11, 2020). Available at SSRN: https://ssrn.com/abstract=3552321 or http://dx.doi.org/10.2139/ssrn.3552321

Daniel Ortner (Contact Author)

Pacific Legal Foundation ( email )

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Sacramento, CA 95814
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