The End of Deference: How States Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines

Federalism and Separation of Powers Teleforum

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In the last few years there has been a lot of critical attention directed towards Chevron and Seminole Rock/Kisor deference. In Kisor the Supreme Court narrowed and clarified but ultimately retained the deference given to agency interpretations of their own regulations. But amidst this incremental reform at the federal level, there has been a much more dramatic anti-deference revolution at the state level. In the past twelve years, 10 states have rejected deference either judicially or by statute or constitutional amendment. And several other states seem poised to do the same thing. This teleforum analyzes the anti-deference revolution and whether and where it is likely to continue to spread.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum Conference Call. This afternoon's topic is titled "The End of Deference: How States are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Daniel Ortner, who is an attorney for the Pacific Legal Foundation. After our speaker gives his opening remarks, we will then open up the floor for an audience Q&A portion.

 

      Thank you for sharing with us today, Daniel. The floor is yours.

 

Daniel Ortner:  Thanks so much for having me. I'm excited to talk about this topic today.

 

      So at the federal level, as I think we all are aware, the question of deference got a lot of attention over the past years. Many sitting members of the Supreme Court, especially Justice Thomas, Justice Gorsuch, Justice Kavanaugh, and others, have expressed a great amount of skepticism about the Chevron and Auer or Kisor deference. They argue that this kind of deference is incompatible with the idea of the rule of law. Other members of the judiciary on the courts of appeals have also issued very scathing [inaudible 00:01:38] or concurring or dissenting opinions criticizing these deference doctrines.

 

      But so far, the Supreme Court has not shown really any appetite for dramatically scaling back deference. Just last year, they had an opportunity to do so in the Kisor case for Seminole Rock, or Auer deference, which is deference to an agency's interpretation of its own regulations. But the court, I think, unfortunately, did not do so. It did issue some very valuable limitations on the application of Auer or Seminole Rock deference. It clarified that it is a doctrine of last resort. There has to be first a significant statutory interpretation. It emphasized that these interpretations can't be ad hoc or made up on the fly to a litigating position. So those are very valuable limitations in the Kisor decision. But it did not dramatically scale back deference, and we'll have to see what effect that decision has in the lower courts.

 

      At the same time, there's been a less appreciated revolution in the state courts that has gotten a lot less attention. So my purpose here today is to discuss what I call a quiet revolution that's happened in the states in rejecting deference. And this has been a pretty widescale rejection. There have been ten states that have expressly rejected deference. One of them is longstanding; Delaware has long rejected deference. But all the other states, all nine of them—it's been since 2008 and, really, just in the past three, four years—most of them have really began that process. Just a month ago, Arkansas joined that group. So this is an ongoing process of states deciding to reject deference, either Auer or Chevron deference or both.

 

      And even in the states that haven't done so, there's been a shift away from deference. In many states, some types of deference are recognized but others are not. Also, a large number of states, even if they're still embracing deference, they've grown more skeptical either through employing more rigorous statutory review, which limits the field of deference, or there are noted voices of dissent on their state supreme courts and courts of appeal.

 

      So we'll go through that, discuss some of the trends, and then discuss for a little bit what this tells us about deference and the potential for reform of deference.

 

      So there are eight states that have gotten rid of deference judicially. And I mentioned -- Delaware, I'm not going to talk much about because Delaware has long rejected deference. But the other states are Arkansas, Kansas, Michigan, Mississippi, Utah, Wisconsin, and Wyoming.

 

      This trend began in 2008 with the Michigan Supreme Court, which rejected the call to adopt Chevron deference and emphasized that the kind of unyielding deference of Chevron conflicted with the separation of powers principles and the idea that the judiciary is required to construe statutes that are issued by another branch of government. The Wyoming and Kansas Supreme Courts followed suit pretty shortly thereafter, and then the Utah Supreme Court. I was actually a clerk on the Utah Supreme Court when one of these anti-deference decisions were issued written by Justice Thomas Lee. And there's a series of decisions there—more and more restrictive—emphasizing the importance of the court, that the judiciary has the important role of deciding what is the law, and that that interpretation is ultimately a judicial function.

 

      Although these decisions really are harking on a very similar theme, I like what the Wisconsin Supreme Court said. They said, "No aspect of judicial power is more fundamental than the judiciary's exclusive responsibility to exercise judgment in cases and controversies arising under the law." A lot of them were quoting Marbury v. Madison—that it's the prerogative of the judiciary to say what the law is. A lot of these decisions really are embracing this idea that it is for the courts to decide, that deference—especially binding deference—takes the court away from the role that the state constitutions envisioned for the courts.

 

      So it's a really encouraging trend. And, as I mentioned, Arkansas just issued a decision in April along the same lines. It emphasized the risk of giving core judicial powers to executive agencies, and that would be in violation of the Constitution's separation of powers. It effectively transfers the job of interpreting the law from the judiciary to the executive, and that was improper.

 

      At the same time, there have been a number of states that have rejected deference through statute or through constitutional amendments. Florida rejected deference through a constitutional amendment in 2018. And Florida is really one of the most significant states that has done so. It was, before 2018, one of the more deferential states—a really robust form of deference, very much binding, very deferential. And it went, after this amendment, overnight, to being a state where deference is rejected and a pretty dramatic shift for Florida. We already, at least, see some impact of it. I think there need to be some [inaudible 00:07:16] studies about what impact this has had in Florida. But, already, there are at least a few high-profile decisions where the courts likely would have come out differently had there still been deference on the books. So it's a really an encouraging sign of change in Florida.

 

      Wisconsin passed a law after the state supreme court already issued a decision, and so there's less you can draw from that change at the legislative level. But it still shows that it's encouraging that the legislature embraced the principles that were put forward by the judiciary.

 

      And, then, Arizona passed a very robust anti-deference law spearheaded by the Goldwater Institute—a very encouraging change there. It fits really well with Arizona's [inaudible 00:08:05] judicial climate, but it's a very valuable change as well and really encouraging.

 

      There are some other states where there have been proposals to eliminate deference legislatively. So far there hasn't been success, but I'm optimistic that additional states will pick up this anti-deference banner for future legislative sessions.

 

      So in addition to states that have rejected deference altogether, it's worth mentioning that there are at least two states—North Carolina and West Virginia—that have always applied just Skidmore deference—not binding deference, but giving agencies just the deference that is due to their weight and their wisdom and expertise. So at least some states have never really deferred; they've always just done Skidmore-like deference.

 

      So, in addition to these states, there are a large number of states that embrace some types of deference but not other types of deference. For instance, states that have Auer deference only, Seminole Rock, Auer, Kisor deference only but not Chevron-like deference. In these states, the judiciary argues that the agencies know best what their own regulations say and, therefore, their voice on that question should be binding. But, essentially, they don't have any special knowledge [inaudible 00:09:26] of the legislative intent or [inaudible 00:09:28] statute and, so, that is a function of the judiciary. It's surprising to me that that was the result. There are at least five states that have that policy, but no states that had Chevron-like deference but not Auer-like deference.

 

      At the federal level, it seems like Auer, Seminole Rock deference, Kisor deference, is more often questioned by the judiciary and by academic scholars. I'm surprised that that wasn't the case at the [inaudible 00:09:56]. I'm not sure what explains that [inaudible 00:10:00], but it was one that definitely surprised me to see there are states that have said Chevron but not Auer.

 

      Other states defer only to certain types of agency actions. There's a couple of states—California and Oregon. Georgia is really one of the states that has made this very clear. They have, in a recent decision, said, "After using all tools of construction, there are few statutes or regulations that are truly ambiguous," and very strongly suggested that there will almost never be an opportunity for deference because of that—because the judiciary can do the work to interpret statutes—and rarely will there be a really ambiguous statute after you apply all canons of interpretation. In Texas, the Texas Supreme Court has also done this and very strongly engaged in very elaborate statutory review rather than employing deference. So that's a very encouraging trend among a couple of states.

 

      I think that's the same trend we're seeing at the U.S. Supreme Court and federal courts—really seeing an emphasis on rigorous statutory interpretation and review rather than what happened in the past, which was, "This is ambiguous. We can't figure it out very quickly, so we are going to defer." So that's a very encouraging trend.

 

      And, in addition to that, there are several states where there are very strong voices of dissent on the courts. I would highlight Ohio. There are several justices—at least three members of the Ohio Supreme Court—that have expressed very sharp skepticism of deference: Justice Kennedy, Justice DeWine, and Justice Stewart of that court. Justice Kennedy emphasized that deference is -- he called it an abdication of the court's judicial duty and authority, and he emphasized that deferring would be abandoning the court's role as an independent check for the Executive Branch. Other members of that court have been very sharp as well.

 

      The Georgia Supreme Court is actually a court that's, I think, very close to abolishing deference. In 2019, they actually granted certiorari to determine [inaudible 00:12:14] deference is "intention with a role as the principal interpreter of Georgia law." But the court, in that case that they granted cert on, decided ultimately that the regulation in question was not ambiguous and therefore did not resolve the question of whether deference would go on. As I mentioned earlier, it then emphasized the need for a very extensive statutory review. So with the combination of both having this rigorous review and strong voices of dissent on the court, it seems likely that Georgia is one of the states that will, hopefully, move away from deference in the next couple of years.

 

      It's worth mentioning that there is a large category of states that are, I would call it, very inconsistent in their application of deference. One of tales that I [inaudible 00:12:59] is very unfortunate is Indiana Supreme Court. In 2018, the court issued a very strong decision that really seemed like it was rejecting deference completely. They said, "The separation of powers principles do not contemplate a 'tie-goes-to-the-agency' standard for reviewing administrative decisions on questions of law." And they emphasized their constitutional duty to decide what the law is. It seemed like a very strong rebuke.

 

      Unfortunately, the next year, the court walked this back. The author of that opinion in 2018 wrote a very sharp dissent explaining that he had "thought this discredited standard, which the court resurrects today, had been laid to rest for good," and that, "there is no principled reason consistent with separation of powers for according fundamentally different treatment of the statutory interpretation of different agencies within the executive branch of state government." And, unfortunately, the other members of the court basically walked it back and said this [inaudible 00:13:54] that case, but in other cases, when it's appropriate, we will defer. So it's worth watching Indiana to see what direction they go in. But there's definitely a very sharp voice for abolition of deference, and so other members of the court have pushed back on that.

 

      I highlight one or two inconsistent states, but I think it really shows how all over the map some of these states are. And South Dakota is one of the most inconsistent states. South Dakota has declared that they grant no deference to agency interpretations. But in one very recent 2017 decision, the court cited Chevron, the federal Chevron case, and declared, "The same analysis applies here." Another decision from the South Dakota Supreme Court goes so far as to suggest that agency interpretations must be upheld if the interpretation is reasonable. Other decisions suggest that deference only applies when an agency is given express statutory authority to interpret a statute. And you really can find a decision from the South Dakota Supreme Court that fits in every category that I talked about so far. So the only conclusion I can safely draw is that South Dakota rarely defers to administrative agencies except when it does. And it's very hard to tell when it's going to do so.

 

      Similarly, I think the award for the most incoherent and incompatible body of precedence has to go to Nevada. Within the past few years, the Nevada Supreme Court has issued decisions expressly saying that agencies are entitled to no deference at all and other decisions saying that agencies are entitled to great deference. And I cannot reconcile those two at all. My best sense, having spoken to a couple of Nevada attorneys about this question, is that some agencies get deference; others don't. No one knows which ones, and it's not stated anywhere which ones are going to get deference. So a challenge on it. If anyone knows anything about Nevada law, it seems like that court has to, in the next couple of years, reconcile these decisions and issue a decision on whether deference will continue in the state and in what context.

 

      Finally, I want to note that the states that do have full deference -- I have 12 states that still defer completely in line with Chevron or Auer deference. There are a couple of things interesting to note about those states. First of all, at least in some of them, a broader anti-regulatory or anti-administrative states trend might already be [inaudible 00:16:32] deference.

 

      In Idaho, in the past few years, there's been a very broad anti-regulatory agenda, which includes requiring all regulations to be considered and reauthorized by the state every year. And, so, it's not clear whether deference really has a meaningful place anymore in Idaho. Or whether there's actually any deference been given to agencies in Idaho because the if legislature is ratifying every year what the agency does, then really it's more deference to the legislature except in the initial year before a regulation is ratified. So in Idaho, there is a question whether there is any meaningful grounds still for deference even though courts have not repudiated it. There's no legislation, but there might just be no room anymore for deference given the structure that has come about in the past couple of years.

 

      Even in this category of states that defer, it seems to me, looking at the cases, that there is a trend towards more rigorous interpretation of statutes. For instance, the Alabama Supreme Court emphasized that it will "not blindly follow an administrative agency's interpretation." It will interpret the statute to mean exactly what it says. So they haven't gone as far, I think, as some of the other states in questioning deference or emphasizing that they're not going to defer. But there are quite a few states that have rigorously applied tandem interpretation. It seems like a very positive trend in that direction.

 

      One other point is that there, unfortunately, seems to be quite a few states that have not fully thought carefully about justifications for deference. They go back and forth on the justifications or don't really explain it at all. And, really, I didn't see many states where there's a well-thought-out defense of deference, that really have grappled with deference and really come out explaining deference. So I think there's a lot of room for even the states that are going to keep deferring to really thoroughly examine the question of why are we deferring?

 

      For the states that have done so, I think the best explanation the states have come up with is the recognition that agencies have specialized expertise. And it seems like that's the primary rationale at the state level compared to the federal level where there are some other rationales that maybe dominate, like the need for uniformity among the federal courts of appeal. That rationale clearly doesn't apply to the state level, and so there really is a domineering rationale instead of the expertise rationale.

 

      The final point I wanted to highlight is I've talked about states in this call so far, but I do want to note that there is also a similar debate going on in territories and among Indian tribes. The Virgin Islands Supreme Court, in 2014, and the Guam Supreme Court, to a lesser degree, have rejected or questioned deference. On the other hand, the Puerto Rico Supreme Court has deferred to agencies on an expertise rationale and has rejected calls to abolish deference. And there's a similar debate going on in tribal courts. So this is not just a state issue but also a federal and territorial issue. And, to sum up, these trends are dramatic. They're quite sustained. Many states are moving in this direction. I couldn't identify any states moving toward deference, but a lot of states have gotten rid of deference or abolished it. And it's a really encouraging trend that I think we will see continued over the next couple of years.

 

Micah Wallen:  We'll now open up the floor for audience Q&A. We'll now go to our first question.

 

Alexandria Suarez:  Good morning, everyone. My name is Alexandria Suarez. I'm an attorney down in Homestead, Florida, and I've focused more on provider defense with administrative hearings. And my question is whether -- and thank you, first of all, because it's very informative. And it's a relief to know that some states are at least recognizing that great deference of agencies' rules is infringing on the judicial checks and balances, and a lot of people don't realize it.

 

      But my question is whether AHCA -- or, if you know of anything related to health care, whether those agencies -- if there's any changes to that great deference rule, if it's being looked at on a federal level, or if -- anything that's an update as far as the great deference that's given to agencies, including AHCA. I watched -- just for way of background, in South Florida, I watched the decimation of our healthcare down here with providers having to close shop because they had no bargaining power with audits. So any Medicaid overpayment, Medicare review—because of that great deference doctrine, they didn't stand a chance. And a lot of them closed up shop.

 

Daniel Ortner:  Yeah. I think it's worth -- having deference really does have consequences for businesses that are being burdened by regulatory burdens that the legislature has never really enacted. And agencies are just adopting them and taking on burdens and being given deference.

 

      I think, at the federal level, there are, as I mentioned, judges that have called for reforming or abolishing deference. There have been some very sharp concurrences in defense. But I don't think that there is yet an option at the Supreme Court for a dramatic curtailing of, especially, Chevron deference. But I do think that the moral case can be made. So one of the reasons I think states are worth studying is if you look at what's happening in state levels, states are laboratories for democracy. They allow us to test out some policies and see which ones work and what the impact is. And, so, I think the state experiments with abolishing deference will show judges and lawyers and advocates and scholars that you can get rid of deference and it doesn't destroy the administrative state. It doesn't mean that agencies can't function. It doesn't mean that they're always going to lose. It just means that it shifts the balance, the battlefield, the playing field—it levels it for litigants. It means that those who are the most powerful advocates in the country, the most frequent advocates, don't get to decide what the law means.

 

      So I think that the state experiments will hopefully [inaudible 00:23:04] impact the debate about federal deference and lead courts—and maybe even Congress—to take action recognizing that there aren't going to be really negative consequences. You know, states have done this, even large states, and you haven't seen things fall apart. The states can still function. The agencies still can make rules and enforce them. But it just makes the playing field more level. So I hope that can be the impact on the federal level, that people are going to realize yes, we can make reform; no, it's going to destroy the administrative state. But it is going to be a meaningful reform for [inaudible 00:23:43] and individuals.

 

Micah Wallen:  All right. No other questions in the queue as of now. In the meantime, Daniel, I also wanted to ask how you think this analysis you've given us today ties into Chevron and Auer deference here in D.C., sort of on the national level.

 

Daniel Ortner:  Yeah. So it kind of goes a little bit related to what I was just saying. I think that there's a lot we can learn from what the states are doing. Hopefully, the federal courts and legislatures elsewhere will see we can make meaningful reform. This is not destroying the ability of agencies to regulate. It's not going to be the death of the administrative state—although that wouldn't be the worst thing if it was curtailed significantly—but it's not going to destroy their ability to function. But it is going to instead just limit their ability to take advantage of regulated parties, to adopt interpretations that are less reasonable or more arbitrary or a reasonable interpretation of the statute were not predicted, and to instead give individuals the ability to fight back and offer what they think is the best interpretation of the law.

 

      I do hope that you might even see states going in the opposite direction—of adopting a presumption of liberty or a presumption against agency interpretations to say, if there is a reasonable ambiguity that exists about the proper interpretation, the courts should instead adopt the interpretation that is most promoting liberty and least beneficial to agency action. I think that will be a step, a big departure from the status quo. But I'm hoping that we'll see some states experiment with that in the next couple of years to see if that works as well.

 

Micah Wallen:  All right. And we do have a question in the queue. Before we go to that question, I just want to offer up a brief reminder to keep an eye out for teleforum call announcement emails. They go out during the week to announce our future calls. We also have the full schedule on The Federalist Society website. And our next teleforum call is actually going to be coming up later this afternoon at 1:30 p.m. Eastern Time, and it's going to be on the Chinese government's record of human rights, and it's going to be marking the June 4th anniversary of Tiananmen Square.

 

      With that, we'll then go to our next question.

 

Charles Grinnell:  This is Charles Grinnell in Stamford, Connecticut. Would you say that there is some authority for the proposition that the amount of deference a state court will lend to an administrative agency is really directly proportional to the expertise of the agency? For example, at the federal level, the allocation of radio frequencies is probably not something the court is particularly going to get into. That sort of -- maybe a social service agency, the court will get into; something rather technical involving engineering, maybe they won't. But is there any line of cases or support for that thought? Thank you.

 

Daniel Ortner:  Yes. There are at least seven states that use that as a metric. Alaska, Iowa, New Mexico, New York, North Dakota, Virginia, and Washington all, to some degree or another, have decisions saying, you know, "If the agency's decisions are highly technical or are specialized, we are going to defer. On the other hand, if they are not, if all they're doing is interpreting the statutory terms that are common to the judiciary—what is mens rea, what is the standard of proof, the common legal concepts that the courts deal with all the time—" they say, "we're not going to defer."

 

      I think that that common issue raises one very important point I wanted to make, which is these state policies which are lesser than Chevron or limited in some way present a possibility for how Chevron could be reformed at the federal level. You could make an argument that that makes sense as a policy. That it's something that's highly technical or specialized, and it may make more sense to have agencies have that deference. On the other hand, if it's just interpreting a terminology that anyone could really understand, that the judiciary could interpret just as well as the agency, then you should not defer.

 

      So there are quite a few states that have done so. I guess it’s a common argument that courts have adopted, and I think it is one that has potential as a way to limit Chevron and limit Auer. It's consistent with the original explanation the Court gave for why they would defer in Chevron, or at least one of the main explanations, again, which is that agency expertise—that idea that there is something specialized that agencies have that the courts do not have. So I think it makes sense to say when the courts have that knowledge—they're are on an equal level with the agencies, it's interpreting a statutory term which is a legal term of art—there is no reason to say agencies have some expertise when they don't. And, so, I think that's a sensible reform to Chevron that, then, makes a lot of sense.

 

Micah Wallen:  All right. We have a few other questions in the queue. We'll move to our next question now.

 

Larry Schnapf (sp):  Hi there. This is Larry Schnapf. Is there a list somewhere of the states that still follow Chevron that I could look up?

 

Daniel Ortner:  Sure. Yeah. I have an article that's up on SSRN. I don't know if there's a way to email it or send it to those that are on the list. But it's on SSRN, and it's called the same title as the name of this Teleforum, "The End of Deference: How States are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines." It should be up on SSRN right now. And, in there, at the end of the article, there is a list of all the states by category and a map with the states color coded. I also did a couple of blog posts on the Notice and Comment blog that the Yale Journal on Regulation has, and on there I have that map as well, the color-coded map. So look at the same title of the article, "The End of Deference," on the Notice and Comment blog. You can find it there as well.

 

Micah Wallen:  We'll now move to our next caller in the queue.

 

Dave Rigdon:  Hi. Dave Rigdon in Carson City, Nevada. You mentioned, Daniel -- and, by the way, great presentation. You mentioned that, in Nevada, it seemed to be somewhat unclear. I was just curious about that. We practice and litigate against a particular state agency here. And, in the last couple of years, we've gotten some pretty good opinions from the supreme court—at least with respect to this particular state agency—that seemed to indicate that district courts are supposed to review questions of law de novo and, while the state agency's interpretation of a statute may be persuasive, it doesn't relieve the court of the obligation of reviewing that interpretation on a de novo basis and rendering its own decision. And we found the district courts in the state, the state district courts, to be particularly open to that idea. So I was just curious about how it's kind of an open question still.

 

Daniel Ortner:  Yeah, that's encouraging. What's the agency that you've been litigating against if I could ask?

 

Dave Rigdon:  It's the Division of Water Resources. It deals with water regs and water issues.

 

Daniel Ortner:  Yeah. Excellent. Well, my sense is -- I spoke to another Nevada attorney about this question, and his understanding was there's certain agencies—especially the Department of Health and Human Services is the one that came up, that he brought up—that still receive deference, specifically anything that has to do with public health may be the common thread, if I had to pick one based on the cases I've seen. So to quote -- it's a 2018 case from the Nevada Supreme Court. They said, "Finally, we must afford great deference to the department's interpretation of a statute that it's tasked with enforcing when the interpretation does not reflect the plain language of the statute or legislative intent." So, you know, a pretty standard statement of deference. That's in 2018.

 

      On the other hand, I found a case in 2019 saying that [inaudible 00:32:08] are persuasive, but not until the deference. I think that was from the state engineers, so kind of similar to what you're talking about—you know, water rights issues. So I think it just depends on the agency it seems like. And I think there really does need to be, hopefully, a case up to the Nevada Supreme Court asking for clarification on this matter.

 

      If you have any thoughts on where that might come from, I'd be very interested to hear from you. Maybe you could reach out to me after this call. I'd love to discuss that with you further.

 

Micah Wallen:  All right. And, just another reminder, too. If anybody has a question at the end of the call, if you want to get in contact with the speaker or access to an article or anything like that like we just had, feel free to reach out to [email protected] with the teleforum name in the subject line, and we'll try and facilitate that as best we can.

 

      And we've reached the end of our question queue. So I'll throw out one more call for questions. If anyone has a question of our speaker today, just press star and then pound. While we're waiting to see if a question comes through, Daniel, is there anything else you wanted to cover before closing remarks today?

 

Daniel Ortner:  I think we've covered everything. But I do want to emphasize that there is a lot of potential here for additional states to make action to abolish deference. There are quite a few states, for instance, that have signed on to an amicus brief from the states in the Kisor case urging the Supreme Court to get rid of Seminole Rock or Auer deference -- that still have a deference, and the state courts employ Seminole Rock or Auer deference. So there are other states that still have a Republican trifecta—you know, conservative control of all branches of government—but still have deference. There are quite a few states that fit in that category. So I think there's a lot of potential for reform there. There's a potential for reform in the courts that have their own voices of dissent on the courts, especially ones like Ohio where there are multiple members of the sitting court. So I would urge those who are litigants to raise these arguments. I would urge the courts to decide them. Don't be afraid to say, "Look, all these other states are reconsidering deference; we should do so as well." Bring the arguments to courts and let them actually resolve the issue, and that will maybe be a very positive step towards the end of deference.

 

Micah Wallen:  Wonderful. And, actually, we did have one more question pop in. So we'll go ahead and fit another caller in before we close today.

 

Charlie Carter:  Good afternoon. That was an interesting presentation. My name's Charlie Carter. I'm calling from Raleigh, North Carolina.

 

      I'm going to offer a contrarian view here because I think there's been too much of a push to believe that Chevron, for example, is some sort of an evil result. I was on the EPA brief in the Chevron case in the Supreme Court, and I think folks need to be reminded of why we were there and what the Supreme Court was overruling with respect to the D.C. Circuit at that time. That circuit had basically decided it could run both the EPA and pretty much any other agency better than the agency could and were substituting their views for the views of the agency. And it had gotten completely out of hand. Chevron was the third in line of three Supreme Court cases—there was a State Farm case, and I've forgotten what the third one was—in which they finally said, "Look, you guys, you need to get it. You don't run these agencies. It's for the agencies to make their own decisions." So while there may be some cases where Chevron deference has gone too far—and I've seen some cases that I didn't entirely agree with as well—let's not throw the baby out with the bath water here. I think there should be a middle ground here that we can come to where agencies at least deserve some degree of deference, if not, you know, wholesale.

 

Daniel Ortner:  Yeah. I think I have two things I could say. One is I think that the line of Skidmore deference is a more sensible line, in my mind, where you say, well, to the degree that what the agency says is persuasive, if they're relying on very extensive studies, if they're doing work that the courts can't do, that's a situation where they receive greater deference or greater appreciation for their interpretations. I think another thing to say would be there's a difference between policy judgments and decisions and statutory interpretation. When you're deciding what do the words of the statute mean, ultimately, I would argue that is for the judiciary to do. If you're talking about what policy to adopt, then that should be Congress; or, to what degree they can delegate to the agencies, the agencies should be able to do that.

 

      But I do think courts did go too far in saying, "Well, we can't decide exactly what the statute means. Therefore, we're going to leave it up to the agency to decide." I don't think that's compatible with the rule of law. I would agree with Justice Thomas and other judges that have really questioned whether that's consistent with the idea that the judiciary gets to interpret the law. I do think there is a middle ground. I think we shouldn't go too far to say, "Well, agencies don't get to make any decisions at all." But I do think the courts with Chevron went too far in the direction of deference.

 

Charlie Carter:  Well, let me make a further point here, which is it's one thing to say courts should interpret statutory terms. That makes a fair bit of sense if it's some sort of common term. But, in the Chevron case, we're talking about the Clean Air Act, a very technical statute that the Court has no expertise in. And, yet, it was substituting its judgment for the agency's interpretation of very specific technical terms in the statute. So I think you're pushing the envelope just a bit too far to say an agency shouldn't have some deference or at least ability to interpret the statute and not be overridden by a court just because the court says, "Oh yeah, now we think it ought to go a different way."

 

Daniel Ortner:  I would say there's a big difference, also, between some deference and controlling deference—which Chevron gives controlling deference to the agency's interpretation. It says, "If it's ambiguous, then we're not going to decide what is the best interpretation; we're going to just say the agency's interpretation gets controlling weight." I think there is a lot of middle ground closer to what Skidmore deference offered, which says if the agency is offering a good or the best interpretation, we will give them extra weight. Or, like I said, if they've relied on specialized knowledge or expertise or they have a highly technical interpretation, we're going to be more likely to defer to that.

 

      You know, even under Skidmore deference, most courts were deferring largely to agencies. Agencies still win most of these cases because they have put the thought in; they have put the expert effort in. And, usually, their interpretations are reasonable and are well grounded. I think the impact of getting rid of deference will, by and large, be less dramatic than you think, and I think that that can be shown through the states that have experimented with getting rid of deference.

 

Micah Wallen:  All right. Well, Daniel, you sort of closed out with your [inaudible 00:39:21]. I'll offer you another chance. Is there anything you'd like to say or closing remarks before we close out today?

 

Daniel Ortner:  Sure. Just that I think these changes have been very dramatic, very noticeable, very encouraging, in my opinion. I think courts have really, across the country, recognized that they have an obligation to be interpreting the law, that deference interferes with that function. I'm really encouraged by these trends, and I hope to see many more states embracing that. I think it's up to us as litigants to raise these arguments and to advance the ball towards the end of deference in states and in the federal courts.

 

Micah Wallen:  All right. On behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society's practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.