Derailing the Deference Lockstep
58 Pages Posted: 18 Nov 2022 Last revised: 29 Nov 2022
Date Written: November 17, 2022
Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.
This Article urges states to resist the uncritical importation into state law of anti-deference arguments based on the nature of judicial power in the federal context—that is, to resist the temptation to move deference rules in “lockstep” with federal doctrine. In state court, “saying what the law is” is essentially different than doing so in federal court. State courts are common-law courts whose judges not only interpret the law but declare it, often based on policy concerns—just as agencies do. And the law that state courts find is subject to federal supremacy, which makes courts’ law-declaration function contingent rather than final. This contingency requires them, even as they say what the law is, to cooperate with agencies in achieving state goals in the face of federal regulatory power.
These differences drain the applicability to state constitutional law of most of the arguments now centered in the federal deference debate, both for and against. State courts do not need to decide between Chevron deference and de novo review. Instead, they should seek to build a judicial relationship to agency statutory interpretation consistent with their own particular role as common-law courts, as creators of common-law precedent, and as joint participants with both state and federal agencies in federal regulatory systems.
Keywords: Administrative law, state administrative law, state constitutional law, Chevron, deference, administrative deference, standards of review, separation of powers, common law, common law theory, administrative federalism
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