Majority of Ohio Supreme Court Justices Open to Rejecting Chevron Deference to Administrative Agencies

The Wisconsin and Mississippi Supreme Courts have recently rejected state-level Chevron deference.

|The Volokh Conspiracy |

Under the federal Chevron doctrine, federal courts generally defer to federal agencies' interpretations of the statutes that the agencies are charged with interpreting, so long as the courts think the agencies' interpretations are "reasonable" (even if not the same as what the court would have chosen). That doctrine is highly controversial, and some argue that courts' duty is to interpret laws the way they think is right.

The same question also arises—usually much less prominently—as to whether state courts should defer to state agencies' interpretations of state statutes. Earlier this year, the Wisconsin and Mississippi Supreme Courts rejected Chevron deference, and in today's State ex rel. McCann v. Delaware Cty. Bd. of Elections, four of the seven Ohio Supreme Justices (two concurring and two dissenting) suggested that they were open to doing the same.

Presumably someone will soon bring a case before that court that will allow the Justices to consider the matter squarely; in this case, the concurrence took the view that "this proceeding—an expedited elections matter with limited briefing and a quick turnaround—is not the appropriate one in which to give our administrative-deference practice the review it deserves," and the dissent seemed to also think that, on the facts of this case, the issue wasn't squarely presented.

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  1. A proposed constitutional amendment is scheduled to be on the ballot in November (unless a court challenge determines otherwise) that would eliminate Chevron deference in Florida courts. The actual text of the proposal would read “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.”

    However, it was grouped with two other, unrelated amendments on crime victims; rights and increasing the retirement age for judges (by the state’s every-20-years constitutional revision committee) as a single amendment to vote on, which has been challenged for misleading voters. The ballot summary leaves out the part about not deferring to an agency’s interpretation and would read “and creating Section 21 of Article V of the State Constitution to require a state court or an officer hearing an administrative action to interpret a state statute or rule de novo in litigation between an administrative agency and a private party.”

    Original proposal approved: http://www.flcrc.gov/Proposals…../2017/0006

    Amendment as combined to be placed on ballot: http://flcrc.gov/Proposals/Com…..b=BillText

  2. Odd phrasing to benefit interests, combining freaking amendments to one, tools of the power hungry to keep their power at maximum by thwarting the very American impulse to limit government.

    Maybe everyone hates at least one of those, so we can poison the one we really don’t want reducing our power.

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