For four decades, the American regulatory state operated under a convenient, if constitutionally dubious, doctrine: that when a federal law was “ambiguous,” the tie went to the regulators.
Georgia lawmakers are considering ending the practice known as “judicial deference” at the state level. Here’s what that means: Right now, when an agency and a regulated party disagree over what a law requires, courts primarily give benefit of the doubt to the agency’s interpretation. Changing this practice would require Georgia courts to decide questions of law without defaulting to an agency’s preferred interpretation.
While this may sound like a procedural tweak, it has real consequences. Deference can function as a shortcut through our system of separated powers because it involves the executive branch practically performing duties meant for the judiciary and legislature. Additionally, recent regulatory reform efforts around the country have highlighted a problem that is also characteristic of judicial deference: unelected bureaucrats wielding power that is intended for the legislature.
The debate over this issue came into the spotlight in 2024, when the U.S. Supreme Court issued a ruling that ended the practice (the “Chevron doctrine”) at the federal level. For the 40 years prior to that ruling, courts deferred to executive agencies’ interpretations of the law when a statute was “silent or ambiguous with respect to the specific issue” as long as that interpretation was “permissible.”
That may be interpreted by some as a sensible way to settle disputes; however, it grants the executive branch outsized influence in determining what a law means. Once that interpretive advantage exists, policy choices can take effect without sufficient democratic accountability. It also grants lawmakers a pass for drafting vague legislation that requires agencies’ interpretations.
The legislature, especially at the federal level, has been in the habit of ceding its constitutional power to the executive for well over a century. Ending deference is a step in the right direction toward decentralizing power in the administrative state.
Over time, judicial deference also becomes a driver of regulatory bloat. As long as agencies’ interpretations aren’t clearly impermissible, they are allowed to act broadly and to push the boundaries of their authority. The result is more rules and more sub-regulatory guidance, layering obligations onto citizens and businesses without legislative oversight or approval.
In Georgia, a state that prides itself on being competitive and business-friendly, the practical cost of deference matters. The default to agency interpretations can make compliance more difficult. Disputes over whether a business can operate, what it must pay or whether it faces penalties – such as licensing requirements, tax classifications or permitting – can begin with an institutional advantage for an executive agency. The agency doesn’t have to prove it has the best reading of the law, only a reasonable one.
Ending deference would not in any way hinder an agency’s ability to enforce the law. It would simply restore the expectation that agencies do not wield powers reserved for the other branches of government.
This year’s legislative session includes a proposal to do that. House Bill 1247, also known as the “Georgia Bureaucratic Deference Elimination Act,” passed the House earlier this week. This bill, introduced by Rep. Matt Reeves (R-Duluth), would bar Georgia courts and administrative hearing officers from deferring to a state agency’s interpretation of the state constitution, statutes, regulations or sub-regulatory materials.
When a dispute hinges on what a statute or rule means, judges would exercise independent judgment. Agencies would still bring expertise to the table, whether that includes technical facts, industry context or enforcement history, but expertise would be treated as information instead of a tie-breaker that decides the case.
This is an important distinction. Critics of reform might warn that ending deference would invite judges to second-guess agencies. Georgia can still value expertise while rejecting administrative supremacy. But agencies’ expertise is neither relevant to the role of the other two branches, nor is it a substitute for their constitutional roles. In a healthy system, the General Assembly writes policy, agencies implement it within its limits and courts resolve its legal ambiguities.
Georgia should embrace the clarity and accountability that comes from running its government the way it was designed to run. Ending judicial deference is a great opportunity not only to practice healthy civics, but also to combat regulatory creep, through which ambiguity becomes permission for agencies to expand requirements without a clear vote of the people’s representatives.