By Kileen Lindgren

We live in a system where administrative agencies exercise extraordinary power.  Under federal and state laws, administrative agencies are free to fine people, deny licenses, and even recommend criminal penalties for alleged violations of agency rules and regulations.  These rules and regulations are not made by elected lawmakers, but by agencies themselves.

Administrative agencies are empowered to make rules through rule making processes (and often through less formal processes where bureaucrats wield unaccountable power), which have the force of law; investigate alleged violations of those rules; and adjudicate those alleged violations with an administrative law judge hired and employed by the agency.  If the agency doesn’t like the judge’s determination, it is free to ignore it.

And then, if and only if the case finds its way to an actual – supposedly impartial – court, the court is obligated to defer to the agency’s interpretation of the law. This obligation, known as “Chevron deference,” named for the Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., has plagued the American justice system since 1984. Justice has not been blind, but has had one eye open toward the government’s best interests.

In his concurrence to the Arizona Supreme Court’s opinion in Stambaugh v. Killian, Justice Bolick describes Chevron deference as an erosion of the federal separation of powers (Stambaugh v. Killian, 398 P.3d 574 (Ariz. 2017) at 8).  In that case, the Court declined to provide deference to the Arizona Department of Agriculture’s (“Department”) interpretation of a statutory provision, despite that agency’s urging that the Court do so.

Stambaugh involved whether a statute spoke to where the location of cattle brands should be placed for purposes of distinguishing herds.  There, the Department insisted that the Court defer to its interpretation of the applicable statute, purportedly because the agency had expertise in implementing that statute.  Both lower courts provided deference to the Department’s interpretation—the superior court going so far as to send Stambaugh’s appeal back to the Department for review, rather than giving him his day in court. The lower courts’ actions are examples of why Chevron deference is so dangerous.

Now, in a first for the states, Arizona has enacted House Bill 2238, which ensures that individuals, like Stambaugh, who appeal agency decisions will have their cases reviewed fairly and independently by the courts, without deference to the agency’s own interpretation of the law.  For too long, Chevron deference has empowered the administrative arm of the executive branch to reach far beyond its intended scope.  With HB2238, Arizona has put a check on this power, and balanced the scales in favor of justice, rather than government interests.

Kileen Lindgren is the legal programs coordinator for the Goldwater Institute.

Cross-posted from the Federalist Society.

For more on this issue, listen to the podcast Arizona Dumps Deference: The Beginning of the End for Chevron?” The podcast features Philip Hamburger and Jon Riches as they discuss Arizona’s recent passage of legislation eliminating Chevron deference in Arizona state courts, how this new law might change state agency rulemaking and enforcement, and whether this law can serve as a model for the rest of the country, and the federal government.