Judicial Thunder Out of Ohio
The Dec. 29 decision deserves more notice as a powerful statement of judicial principles in dealing with an unrestrained bureaucracy.
Judicial Thunder Out of Ohio
The state Supreme Court shreds
By The Editorial Board, Jan. 8, 2023
The Thomas J. Moyer Ohio Judicial Center, in Columbus, Ohio.
PHOTO: GETTY IMAGES
Judges across the country are rethinking their deference to regulators who stretch the law, and the latest example is thunder out of the Ohio Supreme Court.
The Dec. 29 decision deserves more notice as a powerful statement of judicial principles in dealing with an unrestrained bureaucracy.
TWISM Enterprises v. State Board of Registration is a prosaic licensing case by usual standards. TWISM challenged a decision by Ohio regulators denying its application to provide engineering services in the state. The court ruled 7-0 that the regulatory board had essentially rewritten Ohio law by insisting that anyone providing engineering services must be an employee, and not an independent contractor. The statute says no such thing, and the court ruled for the company.
But the court didn’t stop there. Writing for himself and three other Justices, Justice Patrick DeWine used the case to step back and examine the doctrine of judicial deference to regulators under Ohio law. That doctrine, embedded at the federal level in the Supreme Court’s 1984 Chevron decision, is getting a much-needed re-examination in legal circles.
Justice DeWine swept away competing lines of previous Ohio deference cases to make clear that “the judicial branch is never required to defer to an agency’s interpretation of the law.” The agency’s view “is simply one consideration a court may sometimes take into account in rendering the court’s own independent judgment as to what the law is,” he writes.
Adios, Chevron deference.
While the ruling applies only in Ohio, Justice DeWine’s opinion is notable for taking a broader look at deference and the rethinking taking place across the U.S.
“It is worth noting that we are not alone in recalibrating our approach to agency deference,” he writes. “Roughly half the states in the Union review agency interpretations of the law de novo.” High courts in Arkansas, Delaware, Kansas, Michigan and Mississippi “have similarly revamped their deference doctrines lately, returning to de novo review.”
This is a welcome trend as it restores the proper constitutional understanding of the separation of powers. Whatever the original intention of Chevron deference, it has become a license for regulators to find entirely new meaning in statutes years after they were written. They can do so safe in the knowledge that courts will let them do it.
But as Justice DeWine notes, courts have the final say in interpreting whether agency actions are consistent with the law or usurp it. And courts have a duty to overrule agencies when they exceed their proper legal authority.
Far more is at stake than judicial theory. As Congress has ceased to do its job of writing clear and limited laws, Presidents and many governors have imposed their policy preferences by agency diktat. Then when they are challenged in court, they cite Chevron as an all-purpose get-out-of-judicial-review card. This is tyranny by bureaucracy.
The Biden Administration has pulled this gambit more than any in modern history. Think vaccine and climate mandates and a nationwide eviction moratorium. The U.S. Supreme Court has reined in some of these excesses, and we hope it will do the same on the President’s illegal student-loan cancellation this year.
Meantime, the Ohio Supreme Court has provided a constitutional guide that other judges can follow and a necessary warning to willful regulators everywhere.