August 27, 2020
By Timothy Sandefur

As concern grows about the unaccountable power and undemocratic nature of administrative agencies—the bureaucracies that make and enforce most of the “laws” under which we’re governed—it’s important to keep an eye on state agencies, not just federal ones. Although most of the recent attention about the overreaching of bureaucracies has focused on agencies like the EPA and the FCC, state bureaucracies are every bit as dangerous to the rights of individuals. As Jon Riches and I point out in our recent report Confronting the Administrative State, “the United States has not just one constitution, but 51—and states are free to provide greater protections for individual liberty in their fundamental law than those the federal Constitution provides…. State legislatures can also pass laws that limit or otherwise shape the powers of their administrative agencies in ways that reinforce constitutional limits while still obtaining the advantages these agencies provide.”

That’s why it’s refreshing to read court decisions like the concurring opinion by Nevada Court of Appeals Judge Jerome Tao in a decision two weeks ago called Vasquez v. State. The decision involves the sentencing of a man convicted of domestic violence. Under Nevada law, sentencing is based on reports issued by the Division of Parole and Probation, and the law requires the Division to issue regulations saying how it will prepare these reports. But the Division hasn’t followed that law. In fact, ever since that law was adopted in 2016, it’s continued to rely instead on an older set of standards—some four years old—that have no legal validity because the law they were based on was repealed in 2016. “Thus, currently there does not seem to exist any regulation that includes any standard or any objective criteria for such recommendations,” writes Judge Tao. Instead, the Division “is using standards and criteria that do not appear in any regulation currently in existence.”

But as Judge Tao notes, this issue is a lot broader than Mr. Vasquez’s particular case. Over the years, judges have adopted so called deference doctrines—the most famous being “Chevron deference”—which say that judges will uphold what bureaucracies do in all but rare cases. Not only do judges often defer to agencies on legal questions, but they often defer to agencies that interpret their own regulations—so called Auer or Brand X deference. These rules essentially allow agencies to write their own rules interpreting the law—and then write rules interpreting those rules!—which judges will then follow, thereby undermining our constitution’s checks-and-balances system.

In his highly readable and interesting opinion, Judge Tao announces that he is no longer willing to follow these deference doctrines. His earlier belief in them, he says, “was premised upon the unstated, but quite obvious, factual assumption that the standards and criteria actually existed and were not unicorns that resided only within someone’s imagination.”

Worse, the rules that the Division uses appear to be so vague that nobody can tell what they mean. The Division considers a number of factors in deciding what sentence to recommend—but it’s impossible to understand what these refer to:

Take “residential stability.” Construed generously, one could read some objectivity into this term…. But…suppose a defendant has lived at four different addresses within a four-year period. Is that proof of residential stability or instability…?  [If] the defendant was a college student who lived in four different dormitories during each year of school, most people would conclude that there exists no evidence of instability at all, but rather as much stability as ever comes with life as a college student. And that’s just one example that ignores even more vague items on the list, like “social and behavioral patterns.” I dare someone to explain to me how that’s an “objective” thing at all….

Vague terms like these are disturbing, writes Judge Tao, because vague laws are an invitation to arbitrary action by the government—which means to favoritism and discrimination—and things get worse when courts defer to agencies that use these vague terms. “The Nevada Supreme Court has stated that courts must give ‘great deference’ to how Nevada executive agencies interpret the statutes,” writes Judge Tao. “But what’s less clear is whether that simple statement is enough to create a state-law analogue for each and every additional kind of deference known in the federal system, including Auer, Brand X, Seminole Rock, and Chenery II deference. What’s even less clear is whether the Nevada Constitution permits such analogues when our state constitution is more expressly protective of the concept of separation-of-powers than the U.S. Constitution is.” And it’s even more bizarre when the agency guidelines that courts are asked to defer to don’t really exist in a legal sense at all.

“The fundamental problem with excessive judicial deference to agency regulation is that it tramples upon the concept of separation-of-powers enshrined in both the U.S. Constitution and Nevada Constitution,” Tao concludes. “The very purpose of separating governmental power into co-equal branches is to protect individual liberty.”

Judge Tao is only the latest in a growing trend of state court judges expressing their skepticism about the level of deference that state courts give to state bureaucracies. The Wisconsin and Mississippi Supreme Courts, for example, recently abolished their own versions of “Chevron deference.” This is a welcome development because, as Judge Tao observes, these deference doctrines were manufactured by federal courts, based on their interpretations of the federal Constitution, and there’s no particular reason why state courts should follow them when interpreting their own state laws—particularly since one of the major reasons we have state constitutions is to protect freedom more than the federal Constitution does.

You can read Judge Tao’s opinion here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.

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