Two topics:

Nondelegation

Judicial deference

Nondelegation

Guillou v. State of New Hampshire, Division of Motor Vehicles

503 A.2d 838 (N.H. 1986)

“The director may order any driver’s license issued to any person under the provisions of this title to be suspended or revoked, after due hearing, for any cause which he may deem sufficient.” RSA 263:56.

Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen

952 S.W.2d 454 (Tex. 1997)

Factors to be considered with private delegation:

1. Are the private delegate’s actions subject to meaningful review by a state agency or other branch of state government?

2. Are the persons affected by the private delegate’s actions adequately represented in the decisionmaking process?

3. Is the private delegate’s power limited to making rules, or does the delegate also apply the law to particular individuals?

4. Does the private delegate have a pecuniary or other personal interest that may conflict with his or her public function?

5. Is the private delegate empowered to define criminal acts or impose criminal sanctions?

6. Is the delegation narrow in duration, extent, and subject matter?

7. Does the private delegate possess special qualifications or training for the task delegated to it?

8. Has the Legislature provided sufficient standards to guide the private delegate in its work?

In re Petition to Transfer Territory From High School District No. 6, Lame Deer, Rosebud County, to High School District No. 1, Hardin, Big Horn County

15 P.3d 447 (Mont. 2000)

“Separation of powers. The power of the government of this state is divided into three distinct branches-legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.” Montana Const., Art. III, § 1.

Section 20–6–320 grants local county superintendents the power to transfer territory from one school district to another.

Republican National Committee v. Eternal Vigilence Action, Inc.

917 S.E.2d 125 (Ga. June 10, 2025)

1. That county election boards conduct a “reasonable inquiry” before certifying the results of an election—(the “Reasonable Inquiry Rule”).

2. That election board members are permitted to examine all election-related documentation before certifying results—(the “Examination Rule”)

3. That precinct workers count ballots by hand after the close of the polls.—(the “Hand Count Rule”).

4. That family members or caregivers provide photo identification when dropping off an absentee ballot of another voter at certain ballot drop-off locations—(the “Drop Box ID Rule”)

5. That absentee drop boxes at early voting locations be under video surveillance outside of voting hours—(the “Drop Box Surveillance Rule”).

Three steps

First, we determine whether the General Assembly actually delegated the authority at issue to the executive branch agency.

Second, we determine whether the General Assembly possessed the allegedly delegated power.

Third, we assess whether the delegation was permissible.

Judicial Deference

Loper Bright Enterprises v. Raimondo

603 U.S. 369 (2024)

Chevron Deference

Two steps:

1. Is the statute ambiguous?
2. If so, was the agency interpretation reasonable?

Chevron Deference

Two steps:

1. Is the statute ambiguous?
2. If so, was the agency interpretation reasonable?

Exercise: Title 47 U. S. C. § 203(a) requires communications common carriers to file tariffs with the FCC, and § 203(b)(2) authorizes the FCC to “modify any requirement made by or under … this section ….” The FCC issued a rule eliminating the tariff-filing requirement for non-dominant communication carriers.

Chevron Deference

Two steps:

1. Is the statute ambiguous?
2. If so, was the agency interpretation reasonable?

Exercise: The Clean Air Act requires permitting for new or modified “major stationary sources of pollution.” The statute didn’t define “stationary source.” The EPA adopted a “bubble” rule, a plantwide definition of the term “stationary source,” under which an existing plant that contains several pollution-emitting devices may install or modify equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant. This rule was challenged on the grounds that each pollution-emitting device should be treated as a stationary source.

Loper Bright Enterprises v. Raimondo

603 U.S. 369 (2024)

What makes Loper a politically conservative decision?

What makes Chevron a politically conservative decision?

Twism Enterprises v. Board of Registration for Professional Engineers & Surveyors

223 N.E.3d 371 (Ohio 2022)

King v. Mississippi Military Department

245 So. 3d 404 (Miss. 2018)

Public Water Supply Co., Inc. v. Dipasquale

735 A.2d 378 (Del. 1999)

Prior rule: An “agency’s interpretation of a rule or statute governing the agency’s operation is a matter of law that is reviewed de novo, but with great deference to the agency’s interpretation.”

Is this “a confusing and vague standard”?

In Re Application of Alamo Solar I, L.L.C.

235 N.E.3d 372 (Ohio 2023)

Related issue: Whether a court must give deference to an agency’s interpretation of its own regulations.

State-level examples:

14 states: Chevron-like deference: Alabama, Georgia, Hawaii, Kentucky, Massachusetts, Pennsylvania, West Virginia

Legislative rejection of Chevron: Arizona, Idaho, Indiana, Nebraska, Tennessee, Wisconsin

Judicial rejection of Chevron: Arkansas, Kansas, Michigan, Virginia

Source: Christopher J. Walker & Neena Menon, Chevron’s 51 Imperfect Solutions, 2024 Wis. L. Rev. 1585 (2024)

Separation of powers at state level

Elected judiciary

Governors and nonunitary executives

State legislature

Interest groups and local goverment