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A vital change is quietly happening in state capitals and courtrooms across the country — one by one, states are ditching a legal rule that, for decades, has tilted the courtroom playing field in the government’s favor. Nineteen states have already ended “judicial deference” to administrative agencies (including Kansas this month), either through legislation or state court rulings. And they’re not done yet: similar bills are moving in places like South Carolina, Alabama, South Dakota, and West Virginia.
The common thread is a growing sense that this doctrine undercuts the rule of law and gives government agencies an edge they shouldn’t have.
Judicial deference is a court-created rule that tells judges to give extra weight to an agency’s interpretation of the law — even when that interpretation expands the agency’s own power. That’s odd when you stop and think about it. Administrative agencies don’t exist on their own; legislatures create them, and they only have the authority lawmakers choose to give them. Yet under judicial deference, courts are often required to accept the agency’s interpretation of the law, rather than independently deciding what it means.
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The doctrine of judicial deference has warped the separation of powers. Courts are the branch of government charged with interpreting the law, but under judicial deference, courts cannot exercise independent judgment. Instead, they must defer to an agency’s interpretation of its power, unless that interpretation is plainly erroneous.
Everyday Americans are often shocked to learn that courts have been tipping the scales in favor of government for decades. But momentum to end deference is accelerating. In 2024, the U.S. Supreme Court overturned judicial deference (known as Chevron deference) at the federal level in Loper Bright Enterprises v. Raimondo.
For four decades, the Chevron doctrine 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 in favor of the government.
The results were predictable. Chevron led to a dramatic increase in federal agencies’ win rates — 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.
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Loper Bright resolved only half the problem. While Chevron no longer binds federal courts, many states, including South Carolina, continue to apply their own versions of judicial deference. Agencies in those states 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.
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.
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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 the agency’s arguments. Instead, courts will hear and weigh arguments on both sides without favoring either side, restoring their role as neutral arbiters.
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.
South Carolina lawmakers have an opportunity to fix this problem now. A bill called the Small Business Regulatory Freedom Act is pending in the Senate Judiciary Committee. This bill would end judicial deference and put other measures in place to ensure that administrative agencies do not act outside their authority.
The question is not whether lawmakers should end deference. The question is how quickly they will act.
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ABOUT THE AUTHOR…
Jaimie Cavanaugh is Senior State Policy Counsel at Pacific Legal Foundation.
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