The Supreme Court eliminated so-called “Chevron deference” more than a year ago. Hatched from the 1984 Chevron v. Natural Resources Defense Council ruling, the doctrine held that courts should defer to agency interpretations of the laws authorizing their activities if the language was ambiguous.
Over four decades, this misguided doctrine had warped the balance of power in our government, transforming agency staff from mere executors of the law into quasi-legislators. Thankfully, in last year’s Loper Bright Enterprises v. Raimondo decision, the court restored some sanity, ruling that federal judges were no longer required to defer to federal agency interpretations of law.
To say Chevron blurred the constitutional separation of powers would be an understatement. It required judges — those who hold the exclusive authority of legal interpretation — to effectively shrug and say, “Whatever the agency says, goes.” That’s not adjudication — it’s abdication.
Loper Bright reminds the nation that final legal interpretation belongs squarely with the judiciary — a core thread of our jurisprudential fabric stretching all the way back to Marbury v. Madison. When judges are forced to bow before bureaucrats on questions of law, we risk not only implementing the policy preferences of unelected regulators, but also expanding executive branch “lawmaking,” eroding the separation of powers characteristic of our system.
Although Loper Bright cleared the way for our federal courts, it left state judiciaries untouched. Nearly two-thirds of the states continue to operate under some form of deference, many suffering under a jurisprudential fog of unclear or inconsistently applied precedent.
In deference jurisdictions, judges are deferring to the opinions of those never elected to legislate nor authorized to practice law, let alone interpret and adjudicate it. Agency staff often implement state statutes for enforcement purposes, developing regulations under them in efforts to effectuate the intended purposes of the laws that triumph out of our legislatures. However, in doing so, these bureaucrats can take the liberty of interpreting what those laws mean, particularly when unclear.
When challenged in court, these agency interpretations hold a courtroom advantage so strong that they rarely experience defeat. Judges hold the exclusive authority to engage in judicial review — to interpret and extract the final legal meaning and effect of a law. Courts are supposed to be the only body which tells us what the law says, but deference demands otherwise. Because the deference practice requires judges to defer to bureaucrats, fundamental judicial responsibility is discarded and agency staff are granted de facto lawmaking authority.
Thankfully, a growing number of states are acting to change this. Even before Loper Bright pushed the conversation to the forefront, 12 states had acted to prohibit deference practices, either through legislation, constitutional amendments, or judicial reforms. Since the Supreme Court’s 2024 ruling, the anti-deference momentum has continued to intensify. That year, three states successfully prohibited the deference practice via legislation.
This year, more than 13 states have introduced aligned anti-deference bills, five of which — Kentucky, Louisiana, Missouri, Oklahoma, and Texas — prevailed.
Judicial deference should never be a partisan issue. It is a constitutional issue — and one resolved in the federal system over a year ago. Yet, the battle to bury deference for good still lies in the majority of the 50 states. For the sake of judicial independence and democratic accountability, every remaining state should eliminate the practice of deference and require their courts — not bureaucrats — to interpret the law. Otherwise, we will continue to compromise our invaluable separation of powers structure — a characteristic which in great part posits the U.S. as history’s greatest example of limited, republican government.
Nino Marchese is director of the Judiciary Task Force at the American Legislative Exchange Council.
