by Timothy Sandefur

The doctrine of “administrative deference” is a hot issue in legal circles right now. That doctrine says that courts should normally defer to the decisions of administrative agencies, rather than decide questions on their own. If the Bureau of Such and Such says that it has power to regulate widgets, then judges should just accept that, rather than decide for themselves what widgets are, or how under what circumstances the Bureau can regulate them. Only where the Bureau does something totally irrational should courts intervene.

That’s the doctrine, and it has some major problems. For one thing, it’s supposed to be the courts’ job to decide what the law is—not agencies that are, in theory, part of the executive branch. To defer to these agencies violates the separation of powers principle. Also, these agencies are staffed by unelected bureaucrats who are purposely insulated against the democratic process. The idea is that they’re experts, but our Constitution doesn’t let experts run things; it gives that power to the people’s representatives.

There are different kinds of deference doctrine, and I won’t bore you with the details, which are things only lawyers could enjoy, but the most famous one is the Chevron doctrine in federal law—which Justice Kennedy sharply criticized in an opinion just the other day. But yesterday morning, the Wisconsin Supreme Court issued a sweeping—and long—decision abolishing that state’s version of administrative deference. The opinions are over 100 pages, although they’re sufficiently well written that non-lawyers can understand them, and they amount to this: Administrative deference is a threat to the rule of law and undermines our democratic institutions.

“Allowing an administrative agency to authoritatively interpret the law,” says the court, “raises the possibility that our deference doctrine has allowed some part of the state’s judicial power to take up residence in the executive branch of government.” Although governors and presidents must interpret the law to some degree in order to apply it, courts have the obligation to judge the law for themselves. What’s more, deference to agencies threatens the impartiality of courts, because when an agency appears against someone in court, and the court defers to the agency, the court is inherently biased. “It is entirely unrealistic to expect the agency to function as a ‘fair and impartial decision maker’ as it authoritatively tells the court how to interpret and apply the law that will decide its case.”

With that in mind, the court concluded that agencies can expect only the kind of deference that is due to an actual expert: “The agency should be prepared to explain how its experience, technical competence, and specialized knowledge give its view of the law a significance or perspective unique amongst the parties, and why that background should make the agency’s view of the law more persuasive than others.” That, of course, is true of every litigant—and that’s just what’s right about this opinion. Citizens whose freedom is at stake should have the same right to challenge government decisions as the agencies have to defend those decisions. The separation of powers requires that kind of even-handed decision-making.

“Henceforth, we will review an administrative agency’s conclusions of law under the same standard we apply to a circuit court’s conclusions of law—de novo.” And when an agency makes a factual argument, courts will decide the facts the way they decide other facts: by considering the evidence and expertise of the plaintiff and the defendant. (Arizonans can congratulate themselves that this is already the rule in our home state, thanks to the passage of our agency reform bill this legislative term.)

Today’s decision is a welcome sign that courts are increasingly willing to take back their jobs from bureaucracies that have too often asserted power to decide what the law is, in a way that undermines legislative accountability and threatens the freedom of all Americans.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute.