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With Chevron gone, states must finish the job on judicial deference
Across the country, a quiet but important shift is underway in how courts review administrative agency decisions. Nineteen states have ended judicial deference to administrative agencies (including Kansas just this week), either through legislation or state court decisions. More are poised to follow. Bills are currently pending in states like Alabama, South Carolina, South Dakota, and West Virginia, reflecting a growing recognition that judicial deference undermines the rule of law and tilts the scales of justice too far in the government’s favor.
That momentum accelerated in 2024, when the U.S. Supreme Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo. For four decades, Chevron required federal judges to defer to an agency’s interpretation of the laws it administers whenever statutory language was deemed ambiguous. Rather than weighing competing interpretations and choosing the most persuasive one, Chevron mandated that judges put a thumb on the scale for the government.
The results were predictable. Chevron led to a dramatic win rate for federal agencies—often at the expense of individuals, small businesses, and regulated entities that found themselves in the crosshairs of government enforcement. By overruling Chevron, the Court reaffirmed a basic constitutional principle: it is the judiciary’s job to say what the law is.
But Loper Bright resolved only half the problem. While federal courts are no longer bound by Chevron, many states continue to apply their own versions of judicial deference. In those states, agencies still enjoy a built-in advantage when their interpretations of state law are challenged. As a result, Americans’ rights can vary dramatically depending on whether a dispute arises under federal or state law—and depending on which state they live in.
Judicial deference matters because agencies today regulate nearly every aspect of daily life, from healthcare and housing to fishing, farming, and finance. When agencies have both the power to write regulations and a built-in advantage in court, accountability suffers. Judicial deference effectively allows the government to be judge in its own case.
Unsurprisingly, defenders of deference argue that agency bureaucrats possess subject-matter expertise that judges lack. What, they ask, does a judge know about commercial fishing, environmental science, or telecommunications? But this argument fundamentally misunderstands what’s at stake. Judicial review of agency action is not about second-guessing technical judgments or scientific conclusions. It is about interpreting the law.
Judges may not be experts in every technical field—but they are experts in reading statutes, applying canons of construction, and determining what the law allows and forbids. Deferring to an agency’s interpretation of legal language has nothing to do with technical expertise and everything to do with legal authority. When courts defer on questions of law, they abdicate their core constitutional duty.
Importantly, ending judicial deference does not mean judges will suddenly run agencies or substitute their policy preferences for those of regulators. Nor does it threaten agencies that are acting within the authority the legislature actually gave them. If a statute clearly delegates discretion to an agency, courts will continue to respect that delegation. What changes is who decides what the law means when the statute is unclear.
Ending judicial deference also does not mean that courts will simply ignore agency’s arguments. Instead, courts will weigh the arguments on both sides without favoring any, restoring their role as neutral arbiter.
That’s why proposed “carve-outs” to judicial deference reform make little sense. Some argue that deference should remain in place for certain agencies or technical subject areas. But carving out exceptions only preserves the very problem reform is meant to solve: unequal justice depending on who the litigant is and which agency is involved. A legal standard that says the government gets special treatment in court—sometimes, but not always—is no standard at all.
This week, Kansas joined the list of states that passed bills to end judicial deference. States that have already ended judicial deference offer a compelling counterpoint to the fear-mongering. Courts still respect agency expertise where appropriate. Agencies still regulate. But judges, not bureaucrats, decide what the law means. This restores the constitutional balance between the branches of government and ensures that when citizens challenge government action, they get a fair hearing before an unbiased decision-maker.
Ending judicial deference is not a radical idea. It is a return to first principles: laws should mean what the legislature enacted, courts should say what the law is, and agencies should operate within the bounds set for them. In fact, when the Supreme Court was deciding Loper Bright, 27 states signed a brief urging the Court to end Chevron deference at the federal level. Many of those states are considering state-level reforms now. Lawmakers across the country have an opportunity to ensure that justice is not reserved for the government alone.
The question is no longer whether judicial deference should end. The question is how long states will wait to restore the courts to their proper role.
The post With Chevron gone, states must finish the job on judicial deference appeared first on Pacific Legal Foundation.
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