by Mitch Kokai
Senior Political Analyst, John Locke Foundation
We live in a system where administrative agencies exercise extraordinary power. Under existing law, administrative agencies are free to fine people, deny them licenses, and even recommend criminal penalties for alleged violations of agency rules and regulations. These rules and regulations are not made by elected lawmakers, but by the agency itself.
Last week, the U.S. Supreme Court heard arguments in Kisor v. Wilkie, a case that may fundamentally alter administrative law at the federal level. But states don’t need to wait — and shouldn’t wait — for the Supreme Court’s decision to address the same issues in their own backyards.
Administrative agencies are empowered to make rules through the rulemaking process (and often through less formal processes that have the force of law), investigate alleged violations of those rules, and adjudicate those alleged violations with an administrative-law judge hired and employed by the agency. In other words, this system allows unelected bureaucrats at administrative agencies to be lawmaker, sheriff, judge, and jury. …
… 36 states have adopted some form of deference doctrine when interpreting legal questions involving state administrative agencies. So even if the Supreme Court gets it right in Kisor, state courts may still defer to regulators. Some state supreme courts, including Wisconsin’s and Mississippi’s, have reversed these doctrines in recent years. But state legislatures can also work to restore due process. Because most states model their administrative procedures acts on the federal version, a simple amendment to these laws can eliminate deference in the states.