Chevron and the States: A Conversation with Governors' General Counsel about Judicial Deference to State Administrative Agency Interpretations of State Laws

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Deference doctrines utilized by the federal Judiciary when federal agencies act is the subject of substantial debate and attention.  Chevron deference, Skidmore deference, and Kisor/Auer deference are recognizable to many.  But less attention is paid to how state legislatures and judiciaries calibrate the balance of separated powers on the same score.

In this webinar, Professor Aram Gavoor will lead a balanced discussion and press the governors' General Counsel or Chief Legal Counsel from Florida, Tennessee, and Texas. The program will explore the similarities, differences, and unique features of state judicial deference to administrative agency interpretations of law.


Ryan D. Newman, General Counsel, Governor of Florida Ron DeSantis

Jonathan T. Skrmetti, Chief Legal Counsel , Office of Tennessee Governor Bill Lee

James P. Sullivan, General Counsel , Office of Texas Governor Greg Abbott

Moderator: Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, The George Washington University Law School


To register, click the link above



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript


Ryan Lacey:  Hello, and welcome to this Federalist Society webinar. This afternoon, June 13th, 2022, we discuss “Chevron and the States: A Conversation with Governors' General Counsel about Judicial Deference to State Administrative Agency Interpretations of State Laws.” My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today’s call.


Today, we are fortunate to have an excellent panel moderated by Aram Gavoor whom I’ll introduce briefly. Aram Gavoor is an Associate Dean of Academic Affairs at The George Washington University Law School where he teaches administrative law, constitutional law, and federal courts. His scholarship has earned him placement in the Florida Law Review, Indiana Law Journal, Ohio State Law Journal, and others. Prior to this role, he was a veteran’s career senior counsel at the US Department of Justice where he defended challenges to federal programs and likewise engaged in human rights enforcement actions. In 2020, he served on detail in a third in rank role as counselor in the Office of Management and Budget’s Office of Information and Regulatory Affairs.


After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions as we can toward the end of today’s program. With that, thank you for being with us today. Aram, the floor is yours.


Aram A. Gavoor:  Thanks so much, Ryan. And thanks to The Federalist Society. This is a program that’s been arranged by the Administrative Law and Regulation Practice Group. Chevron deference, as it is generally understood, is a topic of great discourse at the federal level. The Supreme Court right now is potentially considering the viability of Chevron deference in West Virginia v. EPA. And one of the key reasons why it is important is because it really relates to a core question of governance. Who has the power? Who has the power to decide and resolve silence, ambiguity, and inconsistency within statutory schemes? The Executive Branch, the judiciary, or perhaps no one and that the legislative dominance needs to be maintained.


But what hasn’t really been well inculcated, certainly at the federal level, is what the states are doing about what’s known as judicial deference doctrine. And each state has its own unique calibration of separated powers between the Executive Branch, the legislature, and the judiciary. And the impacts are very very real and different. So with us today -- we’re very lucky to have I would say a luminary level panel of three state governors’ general counsel. And I’ll note that a fourth discussant from a democrat led state government was not able to join us today, but he was signed up. So what I will do is, in the Q&A part of the moderation, I’ll be voicing some of the arguments laid out by the left and by progressives in favor of judicial deference.


So our first discussant today in alphabetical order is Ryan Newman. He serves as the General Counsel to Governor Ron DeSantis of Florida. Previously, he served as Counselor to the United States Attorney General Barr for national security and international affairs and as a Deputy General Counsel for the Department of Defense where he was the senior lawyer in charge of litigation for the department. Prior to that, he was the acting Assistant Attorney General at the Office of Legal Policy at the Department of Justice where he was responsible for coordinating judicial nominations with the White House and Senate including the nomination of Neil Gorsuch as Associate Justice of the Supreme Court. And prior to serving in the Executive Branch, Ryan was the Chief Counsel to United States Senator Ted Cruz during the 114th Congress. And prior to that role, worked as an attorney at Jones Day. He served as a law clerk to the Honorable Samuel A. Alito Jr. on the Supreme Court of the United States and the Honorable Richard J. Leon of the United States District Court for the District of Columbia and the Honorable J. L. Edmonson of the United States Court of Appeals for the Eleventh Circuit. He graduated from the United States Military Academy, West Point, 1998. And he earned his law degree with high honors from University of Texas School of Law in 2007 where he was on the editorial boards of the Texas Law Review and the Texas Review of Law and Politics.


Our next discussant is Jonathan Skrmetti, who serves as the Chief Legal Officer to Tennessee Governor Bill Lee. In this role, he provides counsel to the governor regarding legal issues that arise in the day-to-day operations of the Executive Branch. He serves as the Executive Branch’s Chief Ethics Officer, assists with the appointments of judges and district attorneys general, analyzes clemency requests, and works with Tennessee’s departments and agencies and their general counsels and sits on the teams advising the governor on the state budget and legislation. He earned honors degrees from the George Washington University, the University of Oxford, and Harvard Law School where he served as Editor in Chief of the Harvard Journal of Law and Public Policy. And following law school, he clerked for Judge Steven Colloton of the United States Court of Appeals for the Eighth Circuit.


Our third discussant today is James P. Sullivan who serves as the General Counsel at the office of Texas Governor Greg Abbott. Previously, he had served as Deputy General Counsel to the governor, as Assistant Solicitor General of Texas, and as a law clerk to Judge Thomas B. Griffith on the US Court of Appeals for the D.C. Circuit. In addition to stints as an adjunct professor at the George Mason University and an appellate litigator in private practice, he’s a graduate of Harvard Law School where he was the articles editor of the Harvard Law Review and of Rice University.


So welcome to this group. And what we’ll be doing at least for the first portion of our program is give each of our discussants maybe eight to ten minutes to talk about how separation of powers works in their respective state and how judicial deference doctrine consequently has been regulated within their state. First up is Ryan Newman.


Ryan D. Newman:  Great. Thanks, Aram, for having me. It’s a real pleasure to be on this panel. And James and Jonathan -- really great to see you guys. I’m glad that I’m able to be here and participate on this panel with you all. Now, I’m sure some of you out there may have heard of a guy by the name of Lincoln Steffens. He was the leftist progressive investigative journalist known back in the early 1900s as a muckraker. Well, he visited the Soviet Union shortly after the Bolshevik Revolution. When he returned to the United States, he’d go around the country promoting the Soviet system saying, “I have seen the future and it works.” Well, I think it’s an understatement to say that his observation didn’t really age well. But this little bit of history won’t keep me from resorting to his famous line. I just hope it ages better for me.


I’m not from Florida. I moved here just a year ago actually this month to work for Governor DeSantis. And I’ve been his general counsel since October, so I’m still pretty new to the Florida scene. But having worked in the Florida Executive Branch for the last year or so -- comparing my experience here with my experience in the federal government -- I think I feel comfortable saying that I have seen the future. I’ve seen the future and it works. And that is especially so regarding the subject of our discussion today which is judicial deference to state agency interpretations of state statutes.


Florida is the future because I believe it is certainly one of the first states to completely abandon the doctrine of Chevron deference -- to just chuck it all together. But it did so only recently. For the better part of the last 80 years, Florida courts followed the same trajectory of the federal courts in extending deference to administrative agencies. In fact, the first seeds of this deference doctrine were planted all the way back in the New Deal era. In 1941, the Florida Supreme Court stated that the administrative and departmental construction of statutes, the duty of enforcement of which rests upon such departmental or administrative office is persuasive. But the court still wasn’t willing to go so far as to say that it was controlling. Eight years later though, in 1949, the Florida Supreme Court made an even stronger statement. It said that an agency interpretation of a state statute is often persuasive and great weight should be given to it.


But yet, it still left open whether, at the end of the day, it was controlling. But in 1952, the Florida Supreme Court actually in a statement that sounds a lot like Chevron deference which was coined, of course, roughly 30 years later, the Florida Supreme Court fully embraced the doctrine of judicial deference to agency interpretations. In Gay v. Canada Dry Bottling Company, the Florida Supreme Court held, and I’m quoting here, “The contemporaneous administrative construction of the statute by those charged with its enforcement and interpretation is entitled to great weight and courts generally will not depart from such construction unless it is clearly erroneous.” And so with that, all the way back in 1952, Florida courts were off and running with the deference doctrine. An agency interpretation had to be sustained, so long as it was reasonable, consistent with legislative intent, and supported by substantial competent evidence even though another interpretation may be possible or even in the view of some permissible or actually preferable.


Of course, similar to federal practice, there were limits to this doctrine. The agency interpretation could not enlarge, modify, or contravene a statute. In other words, deference only applied when the statute was ambiguous. Courts and agencies otherwise had to follow the plain terms of the statute. Additionally, to receive deference, the agency must have been acting within the scope of its powers and jurisdiction. In other words, only the agency charged with implementing the statute was entitled to deference and only when it acted as the legislature authorized it to act, which is kind of along the lines of the Chevron Step Zero. This doctrine of administrative deference was grounded in the belief that agencies have more expertise, of course, than the courts, which were generalist.


But all of this came to a sudden abrupt end in November 2018 when the people of Florida approved an amendment to the Florida Constitution that prohibits courts and administrative law judges from deferring to agency interpretations of the laws they administer. Now, this amendment, it didn’t come to pass by citizen initiative unfortunately, although that would have been pretty amazing. But this amendment was actually proposed by a 37-member Florida Constitution revision commission which meets in accordance with the Florida Constitution every 20 years and can submit proposals -- proposed constitutional amendments directly to the voters. The voters approved the amendment by the requisite 60 percent. And the amendment took effect on January 8th, 2019, which is about three and a half years ago. So it’s still a fairly new thing here.


The amendment is situated at Article 5 Section 21 of the Florida Constitution, and it reads like this, “In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule and must instead interpret such statute or rule de novo.” The amendment thus eliminated both Chevron deference as we call it in the sort of federal space but also our deference as well. This was the culmination of criticism that had been boiling up from judges in concurrences and separate opinions and, frankly, that had been emanating from the broader originalist legal community for quite some time. The doctrine of administrative deference after all is offensive in at least three respects.


This first one I don’t hear as often, so I just threw this in there because I find it an important one, but the doctrine is really constructed on an erroneous philosophical foundation. That is to say that it kind of embraces the assumptions and beliefs of legal realists who generally reject that legal texts have an objective, discernible meaning and that judges -- that the judicial task, generally speaking, is to go out and find or discover that objective legal meaning. But deference doctrine instead encourages judges to abandon the horrid and vigorous work of discovering the true meaning of legal texts in favor of capitulating to claims of ambiguity. But this sort of thinking, in my mind, undermines the rule of law and tends to shift the locus of law making away from the legislature to the administrative state -- to administrative bureaucracies.


Second, the deference doctrine is fundamentally inconsistent with the separation of powers. It is in effect an unlawful delegation of judicial power -- the power to say what the law is in a given case -- to the Executive Branch. So this criticism was voiced by ALJ judges in Florida as well as other judges. And third, it is inconsistent with principles of fundamental fairness and due process. The judiciary is supposed to be an impartial arbiter of legal disputes, but the deference doctrine is a judicial policy whereby the judiciary places its proverbial thumb on the scale in favor of one of the litigants of the case. It’s the government. The government comes in with its competing interpretation and the courts have got to defer to the government’s position. Well, that too undermines the rule of law.


Now, I’ve made the claim that I’ve seen the future in Florida, and it works. But what do I mean by it works? Well, at least in theory, the demise of deference should do at least two things. First, it should lead to the more faithful execution of the legislatures’ will as expressed in the laws that they enact. The Executive Branch must now scrupulously pursue the legislatures’ agenda as expressed in the best reading of the relevant statute. The Executive Branch can’t go out and pursue its own agenda so long as it can manufacture a reasonably plausible interpretation of the statute. The Executive Branch now has to interpret the relevant statute in accordance with the best interpretation and follow that regardless of what it wants to do.


Second, it should limit the power and discretion of the administrative state. This is obviously related to the first but, at the end of the day, it really sort of imposes some real constraints on what the Executive Branch and administrative agencies can do. And I can certainly attest to this from my standpoint. There have been a number of occasions when, for whatever reason, it would have been nice to resort to administrative action. And, in light of the constraints that are imposed on us here, we elect not to pursue that and have to pursue legislation or not act at all.


That said, I do have a word of caution. The demise of deference works in Florida because other critical elements are in place to ensure that it does. First, this administration and the prior administration have worked very hard to appoint textualist judges to the Florida judiciary. Without textualist judges, the prohibition on judicial deference will simply shift the locus of law making from administrative agencies to the courts where there is even less political accountability. Second, Florida has a more robust nondelegation doctrine than the federal government. Article 2 Section 3 of the Florida Constitution provides that the powers of the state government shall be divided into Legislative, Executive, and Judicial Branches and no person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.


Now the Florida Supreme Court has interpreted this to mean that fundamental and primary policy decisions shall be made by the members of the legislature and that the administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the statute establishing the program. So without a strong nondelegation doctrine, the demise of Chevron deference could allow courts to exploit broad delegations of legislative power that lack ascertainable standards and guidelines to impose their own policy preferences, which then would have the protection of stare decisis. This would undermine democratic accountability and move us even further from republican government. Fortunately for Florida, we have a functioning legislature that can act quickly to overcome judicial and for that matter executive usurpations of its authority. Not so sadly for the federal government, but I do think it’s important. And I think the demise of Chevron is a good thing but it’s also important that we consider it in light of these other considerations. We need strong textualist judges in place to apply the law, and we need to reinvigorate the nondelegation doctrine to prevent courts from basically usurping that authority and engaging in law making themselves. Thanks, Aram.


Aram A. Gavoor:  Thank you, Ryan, for your remarks. Very thoughtful and incisive. Next up is Jonathan Skrmetti.


Jonathan T. Skrmetti:  Thank you. It’s a pleasure to be here. I appreciate the chance to talk about this interesting topic. So looking at deference broadly, there are different reasons to disfavor the kind of deference that developed under federal law and in many states. We never had a really strong articulation of deference in Tennessee law, but it was there -- in part mirroring the federal law and in part relatively subtly appearing in short string of cases. But there are various reasons to be concerned about the appearance of deference doctrines.


One reason is to constrain a too powerful Executive Branch. Another reason is to give notice to individuals of what conduct is going to be prohibited. If there’s ambiguity and the agency that’s enforcing the rule gets to decide what it means, a person at home reading the rule may not have a good sense of whether they’re going to be subject to an enforcement action down the road as a result of the courts letting the agency decide what the rule means. And another reason is to empower the judiciary to embrace its fundamental role of saying what the law is. And I think at the federal level, that’s a big part of what’s driving the concerns about deference now. But these different rationales for disfavoring deference carry different weights in different systems.


So at the federal level, there’s a well-founded fear that the Executive Branch has eclipsed the other branches perhaps too much. That’s not the case in Tennessee. We have a much different structural arrangement here that puts the different branches in different relative positions, and some of the concerns that arise at the federal level don’t really apply well here. We have a very strong legislature. It’s a strong legislature by design. The framers of the Tennessee Constitution were very cognizant of the risks of a powerful Executive Branch, and so there are numerous checks to keep the Executive Branch from getting too strong. The most significant may be that it only takes a majority of the legislature to override a veto, and so the veto threat is very limited here.


Another way that the power is limited in the Executive Branch is by splitting it up. We have a plural Executive, as many states do. The governor retains most of the executive authority but the comptroller, the treasurer, the secretary of state are all separate. And they’re all appointed by the legislature to serve as an additional counterbalance to the governor’s power. In addition, our attorney general is in the Judicial Branch in Tennessee. And uniquely, our attorney general is appointed by our state supreme court. And so there’s a clear effort to keep the executive from amassing too much power structurally.


Since the founding of the modern Tennessee Constitution, we’ve had a few developments that further reinforced that trend. One is the emergence of numerous boards and commissions that are independent of the governor’s authority and are often staffed by people appointed by the Legislative Branch as much or more so than by the Executive Branch. In addition there’s a very active legislative committee, the Government Operations Committee that reviews rules and regulations in addition to providing broader oversight over the executive agencies and the boards and commissions. So our legislature is very active. It has a lot of structural hooks to control the way the law develops. And some of the federal concerns involving an Executive Branch run amok don’t apply here.


But that said, there are still a lot of well-founded concerns about deferring to agency action. And as a result of that, this past executive session, our legislature passed, and our governor signed a bill that explicitly rejects any sort of deference. It’s SB2285 and the text in full is, “In interpreting a state statute or rule, a court presiding over the appeal of a judgment in a contested case shall not defer to a state agency’s interpretation of the statute or rule and shall interpret the statute or rule de novo. After applying all customary tools of interpretation, the court shall resolve any remaining ambiguity against increased agency authority.” And so the first sentence of that eliminates any sort of formal deference -- Chevron or our type deference. So if an agency is interpreting a statute that gives it authority or if an agency is interpreting its own rules, the courts are not bound by that interpretation and the agencies are bound by whatever the rules or the statutes say.


The residual clause there functions almost as a parallel to the rule of lenity which is also relevant. The rule of lenity says that in any criminal case, the law needs to be construed in favor of the defendant. And many of our regulatory offenses here are criminal offenses, and so the rule of lenity, in theory, applies to all of those as well. But this separate residual clause makes it clear that the courts need to ensure that their interpretations do not allow agencies to assign themselves additional authority via a backdoor interpretation of the legislative language.


There was some debate about what that clause should say and there were several amendments. And one thing I found interesting was, at one point, there was a proposal to have the residual clause say, “Any remaining ambiguity shall be resolved against the state.” But because there are some cases involving regulatory language that don’t involve the state, and because there are some cases where you have litigants that are trying to expand the scope of the state’s authority, the legislature determined correctly that that was the wrong way to approach it.


One of the most interesting things about this legislation is not what it’s going to do in courts but it’s the second order effect on the people that are going to make and interpret the rules. We haven’t had any litigation involving this as far as I’m aware yet. It was very recently adopted. But it’s certainly something that’s been noticed internally. And it changes the incentives of regulatory drafters and regulatory enforcers. It makes their lives harder in some ways because they have to be sure there are no mistakes up front. The drafters have to ensure that they very clearly articulate what they need the regulation to do and not hope that the courts will give it to them on the back end if there’s a problem. And more importantly, in enforcement actions, if there’s any question about whether the rule or statute at issue is going to cover the activity against which they want to enforce, there’s going to be a lot of second thinking and a lot of concerns about whether the law fully embraces what they want to do.


And, of course, the upshot there is, if you’re a citizen in Tennessee engaged in some activity, you’re going to have clear notice as to whether or not that activity is illegal. And if there’s a problem and an agency determines that something is bad, but that it’s not currently covered by a regulation or covered by an existing law, then rather than enforce against it and have the courts go along with that out of deference to the agency, they’re going to be able to go to the legislature or adopt new rules that explicitly cover that so that everybody is aware that what they’re doing is wrong, if they’re doing that. As I said, we don’t really have a problem with excessive executive authority in Tennessee structurally. There are numerous, numerous checks and balances. But this is an important change in part because it reinforces the separation of powers with respect to the judiciary. Going back to Marbury v. Madison, the judiciary’s role is to say what the law is, and doctrines of deference have chipped away at that and given more authority to the other branches, to the Executive Branch at the expense of the court’s power.


In addition, I do want to echo Ryan’s concerns about the necessary preconditions for a non-deference system to work. If you look federally and you look at where things were at the time Chevron came along and at the time deference doctrines were embraced, you really did have a situation where the Executive Branch had amassed a tremendous amount of power -- or I’m sorry, where the judiciary had amassed a tremendous amount of power. And the boogey man of the day was activist judges, and deference at the time was a way of reigning in a judiciary that had exceeded the scope of its appropriate authority under the separation of power structure. And now, at a time when you have more and more federal judges who have a more restrained view of their role, who are more focused on rooting any determinations in the text of the constitution and the text of legislation, you don’t really have that problem. And, as a result of the deference doctrines, you saw the ballooning of the executive authority. The judiciary wasn’t willing to serve as such an aggressive check on the Executive Branch. The power of the Executive Branch expanded.


And, as a result, the modern boogeyman in separation of powers at the federal level is the Executive Branch running over Congress. Congress has been enervated. The concern is Congress isn’t making the law, the Executive Branch is making the law. And all that goes back to kind of the dynamic separation of powers issues where what is now a problem, these deference doctrines, was in its time a solution. But that said, separation of powers is the fundamental constraint on tyranny in the American system and in the state systems. So whether or not there’s a particular moment where one branch is exceeding its relative authority for some structural reason, it’s very important that the judiciary retain the authority to say what the law is. And it’s very important that citizens receive notice whether it’s of the nature of the legislation or the nature of the rule that is going to constrain their activity. And so historically, there are a lot of interesting reasons why deference is getting its moment of examination now, why the doctrine emerged, and why it’s on the wane now. But as an enduring rule, it’s really necessary to ensure that the powers of the three branches of government remain separate and ensuring that there’s not undue deference to executive decision making is a key part of that. Thank you.


Aram A. Gavoor:  Thank you, Jonathan. Especially I think in your deeper explication of the preconditions to have an effective non deference system within your state and also the unique features of Tennessee governance. Last up in our group and certainly not least is James Sullivan.


James P. Sullivan:  Hi. Can everybody hear me?


Aram A. Gavoor:  Yes. 


James P. Sullivan:  All right. Great. Yeah, probably least. It’s an honor to be on this panel, and I thank you for the opportunity. Going last with such an all-star lineup like this, I’m kind of left for those of you with an education in the classics, the Simpsons line about, “Stop. Stop. He’s already dead.” They’ve already kicked the guts out of the doctrinal underpinnings and separation of powers problems with a regime of Chevron deference. And so I don’t have too much to add to what they’ve already put forward here. And Aram, that’ll be your problem when you have to try to give the “Got to hear both sides,” part of it after this. One of the things that I think is so interesting about this project and looking at this through the 50 flowers blooming lens of federalism is that we get to see slightly different constitutional regimes in the different states to help them use those to better understand our understandings of who should say what the law is and whether deference has any real and appropriate place in a regime of ordered liberty.


And so Texas has some constitutional differences with Florida and with Tennessee and with the other states although, like those other two states, we have an explicit separation of powers provision in Article 2 Section 1 of our constitution. It’s very similar to the one that Ryan read. But ours reads like it was written in 1876 because it was. So there are a few more curly ques on there and some of the other differences in the way the people of Texas have set up our government. We have a partisan elected judiciary, and we also have a plural executive. So not everybody reports directly to the governor, and indeed, some Executive Branch agencies in Texas are actually elected. So for instance, the railroad commission which, contrary to its name, has a lot of very important authority over oil and gas and the development of that important resource to our state. The comptroller is also elected by the people of the state. So that’s a difference as well. And we have a part time legislature. So the Texas legislature is in every other year. So odd years for about five months at a time, and then, they are also subject to a call from the governor for a special session in the event some emergency might arise that needs immediate legislative solution.


So the solutions that Florida and Tennessee have put forward on the deference problem are really interesting to see here. I’m envious that the commission that Ryan mentioned for proposing amendments periodically to their constitution -- our constitution, this is just the text of it, and it’s quite thick. The people of Texas take a very keen interest in setting the foundational charter by which they will govern themselves. And to date, the people of Texas have not moved forward on a deference limiting regime or kind of the -- it’s kind of refreshing in Florida’s constitution to see a textual basis for the Marbury, “Saying what the law is,” approach. We have had some bills along the lines of what Tennessee has, but so far, they haven’t moved very far. The last one I’m familiar with was in 2019. I think it got out of committee in the House but didn’t get too much further than that.


But I think maybe part of the reason that there hasn’t been such a hard and fast solution to the problem of Chevron style deference in Texas is that we’ve never really adopted it here. So my boss, Governor Abbott, before he was governor, he was the attorney general elected on a statewide basis and before that he was a justice on the Texas Supreme Court also elected on a statewide basis. And as far back as 1998, then Justice Abbott said that while not controlling the contemporaneous construction of the statute by the administrative agency charged with its enforcement is entitled to great weight. So the formulations of deference by the Texas Supreme Court have always been something along the lines of the trifling statement of the obvious as Justice Scalia described Skidmore deference in his dissent in Mead. Our justices have never really fully wanted to cede control to one of only unelected parts of Texas government, which is a lot of the agencies created by the legislature, appointed by the governor but not always directly answerable to the governor and not always -- basically, when everybody else is elected in the administrative agencies aren’t, perhaps not surprisingly, the elected justices say, “We’re not going to just totally punt to the administrative agencies.”


And, as we have seen more discussion of deference -- there was a big statement about a decade ago by the Texas Supreme Court called Railroad Commission v. Texas Citizens for Clean Water that tried to kind of meld together all of the different threads and discussions in that court’s jurisprudence of deference doctrines. But it was made pretty clear that Chevron deference has not been adopted by the Texas Supreme Court. And so, where we are now, and I think this echoes one of the points that Ryan had made along the lines of personnel as policy, our justices are elected, but when there’s a vacancy, the governor can make an appointment until the next election.


So Governor Abbott has now appointed five of the nine justices on the Texas Supreme Court. And his very first appointment was my predecessor, Jimmy Blacklock. And Justice Blacklock, just this spring, had what I thought was a pretty helpful statement in an opinion just to resolve any lack of clarity that there might have been about whether Texas does or doesn’t do Chevron deference. He said explicitly, “Texas courts have not adopted the agency deference doctrines employed by the federal courts. Instead this court has said,” and then, the same kind of like, “Great weight,” and, “We’ll take a close look,” or whatever, “Of course, a court must always endeavor to decide for itself what the statutory text means so that it can determine whether the agency’s construction contradicts the statutes plain language.” And ultimately, that’s kind of what we’ve seen with -- Governor Abbott has taken great care to try to appoint faithful textualists who are going to read the statutory text by their best lights and not just try to copy off of somebody else’s homework.


And partially in response to the fact that we have good textualists on our court over here in the Executive Branch, the attorney general’s office has also taken pains to reduce overreliance on deference. So even though agencies would sometimes like it very much if the attorney general representing them in state courts would argue for some kind of Chevron style deference, beginning under when Brantley Starr was the deputy first assistant attorney general -- he’s now on the US District Court for the Northern District of Texas. But the leadership in the attorney general’s office including several solicitor’s general including the current Solicitor General Judd Stone, they’ve made very clear to all of their line attorneys within the agency that, when they are arguing on behalf of some administrative agency’s preferred interpretation of the statutory text, if the best thing that they can go to the podium with is some kind of deference argument, then they’re not really going to argue that.


Instead, our courts and so our lawyers in the Executive Branch have kind of adopted a more of a textualism with elbow grease approach here. So it takes a lot of work. It’s a pain, but we’re going to go through, and we’re going to make the best arguments we can based on the words that the legislature enacted and sent to my boss’s desk for signature. We’re going to look at context. We’re going to use the canons collected in Scalia and Garner and other places. And we’re going to expect our courts to have the confidence in their own work ethic and in their own intellect and their own fidelity to textualist principles to come up with what they think of as the best reading of the statute and then to impose that. There have been occasional instances like that Texas citizen’s case that I mentioned where the court will say, “We are deferring to the agency.” But I find it pretty interesting that the case in which the court did that was a case involving the railroad commission which, as I mentioned, those are also statewide elections.


So between a judiciary that is kind of ready to get things right and do the hard work that that takes and an Executive Branch, I mean, one of the things that we do in my office, we have kind of a one-man OIRA. So before agencies propose rules that would use some of the authority that they have been delegated, we ask that they bring those to us, and we will sometimes press them on things that seem very basic to ad law nerds like us. Can you tell me in the statute where you have the authority to do this and how is this faithful to the authority you were given and what you were charged with doing by the legislature? And the Tennessee approach of amending the statute -- I think that’s very interesting. As I said, we had a bill to that effect that did not pass. We do have a Code Construction Act that says that courts can consider things like legislative history. Oh, I think that my headphones may have just run out of battery here.


Aram A. Gavoor:  We can still here you.


James P. Sullivan:  Oh, okay. Great.


Aram A. Gavoor:  Loud and clear. 


James P. Sullivan:  I’m probably almost over time anyway. The one thing that I do wonder about is, if you put something in a statute like what Tennessee has or like what we have considered, there’s also very similar language to the same effect in the Administrative Procedure Act that Chevron itself ignored. The APA and 5USC706 says that the reviewing court shall decide all relevant questions of law and interpret constitutional and statutory provisions. And as Justice Thomas pointed out in 2020 in a dissent, the courts have just kind of ignored that. And so to Ryan’s point again, you really do need faithful judges if you’re actually going to run a railroad that doesn’t rely on deference doctrines. So I’ll turn it back over.


Aram A. Gavoor:  Thanks, James, especially for your reinforcement, I think, of the right methodological approach that’s needed in review for judges and also the Executive Branch to appropriately balance the separated powers in the context of judicial deference doctrine. So now, we’ll shift to the part of the program -- maybe five, ten minutes -- where I will seek to pose the hypotheticals and counter arguments that the left would bring to bear in the context of this -- the sort of the administrativist perspective.


So drawing on all of your commentaries, the preconditions necessary predicate for a deference free state government to state agency interpretations of state law in active legislature, rigorous advocacy by the state Executive Branch and also textualist methodology by judges to reading the law as opposed to the competing statutory interpretation methodology called purposivism. That’s just for the non-lawyers in the group. But the primary basis of reading the statute once the plain meaning is not sufficiently discerning, say what’s the societal goal or the ill meant to be resolved by the statutory schema -- strikingly different from a textualist methodology.


Well, what happens, let’s say, for certain state legislatures that don’t sit in session all year. Let’s say they finish their general assembly period or let’s say it’s over a holiday break and some emergency comes up where there is no clear authority by the governor to act. What’s the solution then? Is the governor to say, “I don’t have the authority. Hey, state legislature, reconvene. Give me the authority, so that I can act in the benefit of the people.” Or is the state governor essentially out of tools to solve the problem?


Jonathan T. Skrmetti:  Unfortunately, we have a lot of recent experience with this sort of thing as a result of Covid. And I think there are a number of legitimate concerns on the other side of these arguments. But with respect to the ability of the Executive Branch to function in an emergency, my predecessor in this job -- I came in here in December -- oversaw by far the record number of executive orders as a result of the pandemic. I think he hit 93, which just blew away any prior record for any governor in terms of number of executive orders. And in addition, we have provisions that allow for emergency rules and emergency revision of rules by our agencies. So I think there are some challenging objections to the non-deferential approach, but I think emergencies are not the strongest argument against it because there are mechanisms that allow for the rules to be changed relatively quickly at least for the short term to address any real deficiencies that turn up. And, if there’s a huge legislative gap, there’s always the ultimate recourse of the special session, but the governor’s emergency powers in Tennessee are quite broad. So once that declaration goes out, there are a lot of ways to impose new order or suspend existing laws in response to the emergency. And again, there are limitations and restraints on that. But the idea is, you address the emergency in the short term, and then, there’s time to either get the legislature back in or amend the rules or do whatever you need to do to ensure that there is a more enduring solution there.


Aram A. Gavoor:  That’s a very thoughtful response. Thank you, Jonathan. And maybe the next question I ask either Ryan or James could field just because I want to get to the Q&A from the audience. That’s starting to pile up at the back end which is good -- audience interest. Another question I think that would be one that the left would espouse was, what about democratic accountability -- flip it on its head. The state executive is usually the person whose desk has, “The buck stops with me,” on it, figuratively speaking. And doesn’t the absence of judicial deference to agency applications of silence, gaps, ambiguity, and authorizing statute -- doesn’t that provide just a nice mechanism for a state governor to say, “Not my fault. I don’t have to deal with this. It’s really the legislatures’ fault.” Doesn’t that cause a bit of pressure on the people holding the governor accountable?


James P. Sullivan:  Ryan, do you want that one? Or do you want me to do it?


Ryan D. Newman:  I’m happy to go ahead and take a stab at it. I actually think one of the strongest arguments for the Chevron doctrine, and this is one of the arguments for the deference doctrine, and this is one of the arguments that Justice Scalia himself relied upon, was that it actually ensures some democratic accountability in the system because, as administrations change -- to the extent that there is ambiguity in the law -- it allows for some democratic checks, some democratic accountability. I actually think that’s one of the strongest arguments for it. But, from my perspective, the most important thing that we have to figure out though, is how to restore power and authority and responsibility to the legislature. And the legislature needs to act with more clarity. This is why I think there has to be a reinvigoration of the non-delegation doctrine, certainly at the federal level.


In Florida, I think, as I tried to lay down in my initial remarks, I think we have hit all of these areas. Governor DeSantis is able to appoint justices to the Supreme Court and to the intermediate courts of appeal subject to retention elections. He appoints most of the trial court judges, although they’re subject to competitive elections. We have a very responsive legislature. Yes, it’s a part time legislature, unlike Texas which is biannual, it does sit annually for 60 days a year. But I think, at the end of the day, what everything that we’re talking about here needs to be oriented towards doing is forcing the legislature to speak with more clarity. When they delegate, they need to delegate with more clarity so that the Executive Branch is basically operating as the legislature’s agent. But the Executive Branch can’t really do that without instruction, and that’s where the real democratic accountability is at. It’s in the legislature. And so everything should be geared towards that.


We need to require the legislature to speak with more clarity, and then, that in turn will allow the Executive Branch to act with more certainty and will allow the judicial branch to do its job which is to interpret the statutes. But when the legislature is passing things like the Executive Branch can enact laws in this sphere that serve the public interest. Or imagine what sort of broad and open-ended wording you get in a lot of legislative text. That’s what needs to be discouraged. But, at the end of the day, what this debate between the left and the right is really comes down to whether legislatures are capable of that, at the end of -- but that really goes to the question of whether republican government even works in a modern industrial society where you need a lot more regulation. Those are the deeper philosophical questions that are at the root of all of this. And I just think, if we’re going to have a republican government in this country, we need to force the legislature to start speaking with more clarity.


One way of doing that, frankly, would be, look, maybe we should start proposing regulatory regimes by -- I get it, the bureaucracy has experts. They can cook up the rags, but rather than enacting them or promulgating them after the fact based on some broad open-ended delegation from the legislative body, maybe we do it the other way around. The Executive Branch proposes the regulatory scheme, and then, Congress or the legislatures enact it. I think we’re just fortunate here in Florida where we do have some of these systems in place to ensure that the legislature speaks with more clarity. But I can say I’ve read enough Florida statutes now to know that that oftentimes is not necessarily the case and things get mucked up. But I do think that, if courts would start demanding more clarity from the legislature, the whole thing, whole system would work better from the standpoint of democratic accountability and republican governance. Whether it would work better in the sense of having a more highly attuned, regulated society or not -- I don’t know about that. But that’s not -- the government exists to do the will of the people, not to have an immaculate regulatory regime. 


James P. Sullivan:  Yeah. And Aram, to your question, the scheme that you described, I think that the ivory tower types would describe as a deliberation forcing mechanism. And that seems to me an unalloyed good in this context. And to the extent, on the federal side, there’s a concern that the Congress doesn’t ever really do anything. Sometimes I kind of wonder if being able to pass the buck like this, where they never really pass anything, and just leave it to the Executive Branch, and administrations will change, and they’ll do these gigantic changes in how the people will be governed, maybe if that were kicked away, maybe the Congress would be a little bit more responsive both to the people and to the problems that the people perceive and have legislatures that actually did things like they do in our three states here.


Aram A. Gavoor:  I think those are really additive comments and certainly, legislatures certainly, when they’re regulating on substance tend to have an impulse to have very broadly worded sort of imprecise text, except for spending packages. They’re extremely good at having very precise, long, and thoughtful spending packages. My one last question to sort of take and balance the arguments of the left is this, as you all know, sitting as the chief legal counsel for your respective executives, they’re on the clock. Every moment is a very high intensity period in your jobs. And it seems to me that the absence of Chevron deference, and even the imposition of an administrative rule of lenity where ambiguity goes in favor of the regulated party, really does have the effect of slowing down the governor’s ability to execute on priorities that he ran on. And it seems to take, at least to me, it would take a significant degree of discipline not to fall into the impulse of political expediency. Maybe James, you can talk on that a little bit just because I haven’t directed a question precisely to you yet.


James P. Sullivan:  Sure. Yeah. I think that we would all agree that our jobs would be a lot easier, and we would have fewer dinners that get cold while our wives and kids are waiting for us, if we could just do whatever we want at all times. But that just, ultimately, for the people of Texas, and it sounds like for the people of Florida and Tennessee, expediency alone doesn’t justify the state coming through and just deciding that they want to solve some problems because one person thinks that it’s a problem. So it’s a pain but it’s meant to be, and that’s part of the oath that all of us and all of our bosses have taken to allow the people of our respective states to govern themselves. 


Aram A. Gavoor:  Thank you. So I think it makes sense to try to get a couple questions from the audience in -- Q&A. One of the questions is, “Can you give examples of regulatory offenses that carry criminal liability within your respective states because that’s really where the implication of a Chevron deference or the absence of it is really most acute if you go to jail based on an Executive Branch agency’s interpretation of an ambiguity.” If you have any in mind, that’s sort of a gotcha question, but I wanted to have fidelity to the audience.


James P. Sullivan:  I think that that would probably most likely for our TCEQ, our environmental regulation agency, and there more than anywhere else, if we’re talking about, ultimately all of this, we’re talking about the men with guns showing up at your house and telling you that you have to do something by authority of the state of Texas or Florida or Tennessee, it seems like that ought to be something that the peoples’ representatives have taken a very careful look at.


Aram A. Gavoor:  That makes sense. I guess the last question, and this will just be open floor is, “If you could wipe the slate clean, essentially a reset of separation of powers, what would be the appropriate balance as it pertains to deference? None at all? Maybe de novo? Maybe less than de novo with the rule of lenity? Maybe something like what dominated the federal government for 40 years from 1944 to ‘84, Skidmore deference, the power to persuade if not to control.”


Ryan D. Newman:  Well, I’m a fan of de novo, if all of the other elements that I’ve -- and I feel like I’m beating a bit of a dead horse here -- as long as those other elements are in place, then de novo should work. If the legislature is speaking with clarity, and the courts hold them to that. The courts have to -- the delegation must be clear and the guidelines that the legislature is imposing on the administrative state are clear, then I think you can have a system where courts can just do their normal job and interpret the law de novo. But a lot of this kind of -- it’s a little trickier than that. It depends on exactly what’s being delegated and what’s being regulated. But at least in theory, if we can get the legislature to speak with more clarity, then it should work. But in the absence of that, I do think that we risk just transferring power away from at least a branch of government that has some political accountability, the Executive Branch, to one that has even less accountability and then locking in those judicial interpretations for a very long time, make it very difficult to overcome that. 


Aram A. Gavoor:  I think that we are out of time, but I think that was a really great parting thought. Thank you so much, Ryan, James, Jonathan. I’ll pass the floor to you, Ryan.


Ryan Lacey:  Thank you so much, Aram. On behalf of The Federalist Society, I would like to thank our panel for the benefit of their valuable time and expertise today. And I would like to thank the audience for joining us and for participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about our upcoming webinars. Thank you for joining us today. We are adjourned.