A 40-year old case is being heard in the current Supreme Court session that could alter how much power regulatory government bodies are able to exercise when interpreting and implementing the law.
According to the SCOTUSblog, the Supreme Court is likely to discard the Chevron doctrine that many states rely on to settle disputes or confusion stemming from administrative regulations, as authorized by a federal, state, or local law. The original ruling came forty years ago, out of Chevron v. Natural Resources Defense Council, and generally says that a court should defer to an agency’s reasonable interpretation of a statute that is found to be unclear. The debate hinges primarily on how much power regulatory bodies, at all levels of government, should have when “filling in the gaps” of new legislation. The new ruling, expected in June, is not likely to affect the regulatory operations of local governments in a substantial way, but Maryland is a unique case in this regard, with some elements that make the impact unclear.
Judicial deference generally, as established by Chevron, is the process by which a court yields to the judgement of an authority or another legitimate party, such as a government agency in deciding a matter. Understandably regulations stemming from new laws can get very technical, and difficult for a non-expert to really grasp. This is why the court then relies on insights from professionals in a particular field. At the same time, this puts the court in a position of accepting the opinion of an agencies interpretation of its own regulation, which can be controversial.
As a for instance, if a local government passes a new law then the local agency, with subject matter jurisdiction, will build out the regulatory framework to implement and enforce the new law. A disgruntled resident, business, organization, and the like, could challenge the regulation as not in the spirit, intent, or authority of the law. When that case goes to court, judicial deference is essentially what the courts lean on in these instances to settle the matter, especially if it is highly technical. The same goes for cross-departmental regulations, whereas a federal agency hands down new rules to states and local governments. An opinion article in Governing just last week discussed the predicament local governments and states could be in when it comes to federal regulations with the potential shift away from Chevron.
But getting, now, at how Maryland handles these cases is decidedly nuanced. By comparison some states use Chevron-like deference, where a significant amount of weight is placed on the opinion of the agency. Some states have outright rejected that approach. According to Politico, twelve states have already eliminated or curbed agency deference. Maryland is not one of those states but has taken a somewhat different tack with these types of cases.
In some instances Maryland courts have applied a weighting approach – also called a Skidmore-like deference. This application stems from Skidmore v. Swift & Co., which said a court can determine the level of deference to afford an agency based on their ability to support their actions. Consideration for how much weight the agency stance will get is dependant on the strategy they used to develop the regulations that stemmed from the interpretation of the law in question. So Maryland courts are essentially operating on somewhat of a sliding scale in this area.
In these cases, local governments can enjoy a potentially substantial degree of deference from the courts if they can show their work, so to speak. Representing a methodical approach that was taken in the course of developing the regulations gets weight. In particular, public hearings for non-government category experts to give testimony on the proposed regulations gets a lot of weight.
Maryland’s approach has also been called into question by some for lacking consistency and issuing contradictory judgements. A 2020 article published in the Yale Journal on Regulation, reviewed Maryland’s approach as too flexible and leading to confusion. From the article:
Some states like Maryland cannot seem to make up their mind about how deferential they should be. In one recent decision, the Maryland Court of Appeals emphasized that “some weight” is given to an agency’s interpretations, something akin to Skidmore like deference. In another recent decision the Court explained that “considerable weight” is to be given, something more akin to Chevron like deference.
A 2021 Maryland Law Review article encouraged the idea of clarifying the State deference doctrine to promote confidence in the Maryland Judiciary.
Opinions from the Supreme Court justices in the Chevron deliberation were mixed. Concerns were raised that doing away with Chevron could lead to courts making technical policy judgements that they are not equipped to do. Other justices felt the impact would be less substantial. At the end of a little more than 3 hours of deliberation, the majority of justices appeared to be leaning in favor of overruling Chevron, with little fear that it will reopen thousands of lower court rulings. An outcome is expected to come in June from the Supreme Court.
