Four Ways to Deconstruct Regulation and Undermine Democracy in the States

A few years before the Supreme Court formally overruled Chevron, anti-administrative activists successfully prohibited judicial deference to reasonable exercises of interpretive discretion by regulatory agencies in a handful of receptive states. State governments’ treatment of this issue is likely to generate even more attention in Loper Bright’s wake. This Article presents novel case studies of four different ways in which state governments have prohibited deference to state agencies by state courts: (1) judicial decisions in Mississippi and Ohio, (2) a constitutional amendment proposed by an appointed commission and adopted pursuant to the initiative process in Florida, (3) statutes enacted pursuant to the ordinary legislative processes in Arizona and Tennessee, and (4) codification of a state supreme court decision by the state legislature in Wisconsin. Conventional wisdom would suggest that these reforms are legally dispositive and that eliminating Chevron deference through the political process is especially democratic. Yet each case study shows that these were carefully orchestrated political power plays rather than products of reasoned deliberation or meaningful reflections of the people’s will. Proponents relied on the same anti-administrative rhetoric that has become popularized at the federal level, rather than anything distinctive about their states. And shifting policymaking authority from regulatory agencies, which serve as the preeminent sites of multilateral deliberation and contestation within our system of government, to the judiciary undermines pluralistic democracy on a more fundamental level. This Article thus contends that the resulting state laws are democratically illegitimate. It also questions the legal force of codified interpretive rules and suggests that continued judicial deference to state agencies is legally permissible, normatively desirable, and practically inevitable. This does not mean that states must uniformly adhere to the Chevron framework, but it does challenge the prevailing view that the proper level of judicial deference to agencies is necessarily dictated or controlled by the legislature’s meta-intent or the original public meaning of framework laws. It also begs for an affirmatively democratic system of judicial review that involves both reasoned deliberation by state lawmakers and persuasive justifications by state courts. This Article explores what a democratically legitimate system of judicial review of agency exercises of interpretive discretion would entail in states with very different structural arrangements. In the process, it reconfigures the terms of the debate and draws fresh lessons for the federal system as well as the current state of federalism in the wake of Loper Bright.