Notice & Comment

Chevron in the States: Mississippi Update

Mississippi’s high court announced last month that it will “no longer … give deference to agency interpretations” of their governing statutes.  The case is King v. Mississippi Military Dept.    It’s a tough summer for Chevron in state supreme courts, when you read King in conjunction with Wisconsin’s Tetra Tech, which I discussed two weeks ago.

Like Tetra Tech, King relies entirely upon separation of powers. It makes only arguments identical to those being marshaled against Chevron at the federal level.  The Mississippi justices quote their own constitution’s separation of powers provisions, but the analysis they quote is Justice Gorsuch’s, taken from the separate Gutierrez-Brizuela opinion he wrote while on the Tenth Circuit.  Deference is illegitimate because it subcontracts a core judicial task — statutory interpretation in the context of a case or controversy — to another branch of government.  A judge cannot defer to the executive and honor the judicial obligation to “say what the law is.”

As I noted in my previous post, this exclusive focus upon the judicial function elides the ways in which state agencies interpreting state statutes are their own animals, importantly different from their federal counterparts.  The state judges seem to have their eyes on the challenge to Chevron being teed up for the (US) Supreme Court.  Their opinions endorse the anti-deference arguments we will see there, without muddying the waters with idiosyncratic features of state administrative law and practice.

It’s an interesting exercise in judicial federalism.  The cases lend some authority and some momentum — probably not a lot, and it’s hard to say how much, but some — to the cause of overruling Chevron.  In doing so, they also advance the convergence of federal and state administrative law.  State law generally does not benefit when courts ignore the dissimilarities between state systems of governmental administration and that of the United States.  Deference had been one of the areas where states had charted their own path, different from the federal courts’, in administrative law.  That was for good reason.

There is also coverage of King at the Volokh Conspiracy.

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