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The next battles over administrative law will unfold in state capitols, state courts, and state ballot boxes.

Federal and state statutes often share a common problem: they’re vague. When legislators write bills, they often fail to define complicated terms and frequently use fuzzy language. When enforcing unclear laws, executive agencies have to make educated guesses about the best way to interpret hazy statutory language.

But sometimes, agencies guess wrong, and that leads them to implement laws in ways Congress never would have approved—from forcing factory workers in West Virginia to use expensive smokestack scrubbers to meet emissions standards, to forcing fishermen in Rhode Island to pay federal “herring monitors” to perform fishing inspections. These consequences prompt lawsuits against the administrative state that all hinge on the same question: what does the law actually mean?

For 40 years, the answer to that question has often been, “whatever the bureaucrat says it means.” That’s because the Supreme Court in Chevron v. National Resources Defense Council directed the federal judiciary to defer to executive agencies’ interpretations of federal statutes whenever those statutes were ambiguous. This doctrine of deference put a thumb on the scales, favoring bureaucrats over the people they sought to regulate. But this June, that ended when the Supreme Court overruled Chevron.

Yet while Chevron deference is dead in the federal courts, it’s alive and well at the state level. In October 2023, the State Court Report compiled a list of different states’ deference standards. It found that courts in over half of the states defer to executive agencies.

The most common way state courts defer to administrators is by using what the State Court Report calls “substantial deference” standards. These standards give state agencies about the same amount of deference that Chevron gave to federal agencies. Other states use weaker deference standards. But regardless of whether deference is narrow or expansive, the mere existence of state deference standards is inherently problematic.

Agency interpretations of statutes—at both the federal and state level—are regularly motivated by politics. They notoriously fluctuate from one administration to another. And to make matters even worse, deferring to agency interpretations consistently violates the separation of powers. American courts—federal and state—were designed to interpret statutes. It is their job, plain and simple—the very “judicial power” assigned to them in the Constitution. Shifting the power of statutory interpretation to executive agencies snatches away the constitutional prerogative of an impartial judiciary and drops it into the hands of unelected, often politically motivated agency officials.

Eliminating state deference standards ought to be a top priority for state and local politicians and public interest litigators who want to see the separation of powers restored and individual rights protected. And they won’t have to start from scratch. They can follow the playbook of 14 states that already eliminated Chevron-style deference standards.

This graphic, which represents data from Ballotpedia, shows the three tactics that states have used to successfully eliminate Chevron-style deference standards: legislation, litigation, and state constitutional amendment.

First, state legislators have banned deference by passing bills into law. Idaho, Nebraska, Indiana, Arizona, Wisconsin, and Tennessee used good-old-fashioned legislation to end in-state judicial deference. The three most recent laws banning deference—those passed in Idaho, Nebraska, and Indiana—were inspired by model legislation from the Goldwater Institute and the Pacific Legal Foundation.

Second, state supreme courts have declared their deference standards unconstitutional. Since 1999, the Kansas, Utah, Mississippi, Arkansas, Michigan, Ohio, and Delaware Supreme Courts have each taken a sledgehammer to their state deference standards.

Third and finally, citizens have routed deference standards via state constitutional amendment. A Florida ballot initiative in 2018 amended the state constitution to ban judicial deference to agencies. It required state courts to interpret statutes using de novo review, which means without deference.

Which of these political strategies is the best way to eliminate state deference standards? It will inevitably vary. Sometimes, state legislatures will chomp at the bit to curb agency power. Other times, litigation will be a better bet. And in situations like Florida’s, the best way forward will be direct democracy, locked and loaded to reject state deference at the ballot box.

Prudent state actors will have to discern the best way to eliminate judicial deference within unique situations and then get to work. To quote Justice Lee A. Johnson of the Kansas Supreme Court, state judicial deference ought to be “abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal.”