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Why Proposed Legislation to End Judicial Deference to Executive Agencies Matters for Public Health

February 21, 2024


When a judge hears a case involving an agency’s interpretation of a statute, they defer to a qualified party—typically a state or federal agency—for their technical subject matter expertise in interpreting that statute. However, there has been a movement to pass legislation disallowing this practice. While these efforts do not target public health by name, they do make it harder for all agencies to implement needed rules and policies in the future–including state and local health agencies.

When you have a medical issue, you trust your doctor to make recommendations based on your symptoms and what they know about your unique situation. If a course of treatment doesn’t work, you might visit another doctor for a second opinion or even seek the advice of a medical malpractice lawyer. If you pursued a medical malpractice claim, the legal standard doctors are generally held to is a customary standard of care, which defers to the expert judgment of the medical community and is essentially an internal standard-setting consensus-based approach. That is, the courts generally recognize that the practice of medicine is a learned profession not well suited to the independent, non-expert opinion of either juries or judges.

The practice of public health and the promotion of the public’s health similarly depend on public health expertise, which includes specialized, interdisciplinary training to solve health problems from a collective lens focused on populations rather than individuals. Public health expertise is important both in times of emergency and our usual day-to-day functioning. It shapes governmental and non-governmental responses to pandemics like COVID-19 and the control of foodborne illnesses, measles, or other outbreaks in communities; drives data collection efforts to inform programmatic planning, implementation, and evaluation in areas such as access to care and services, injury prevention, and promoting healthy behaviors; and is necessary for advancing equitable legal solutions to common societal challenges that impact health such as income inequality and climate change.

The long-standing public health expertise that has improved life expectancy and decreased the age-adjusted death rate during both the 20th century and first part of the 21st century has been under attack since the onset of the COVID-19 pandemic. These attacks include the introduction and enactment of an overwhelming wave of state legislation to limit public health authority, including the ability of public health officials to keep us all safe and healthy, especially in emergencies.

A similar onslaught of challenges has played out in the courts. While the outcome of most judicial decisions reviewing public health powers favored public health, Parmet and Khalik warn that “some courts, including the US Supreme Court, have granted health officials less deference than they have traditionally received,” which “presents significant challenges to officials’ ability to prevent and respond to future health threats.”

As Parmet and Khalik note, health officials have historically received deference from the courts, reflecting public health’s crucial role in the history of administrative regulation in the United States. Judicial deference is a principle of legal review for administrative or executive agency actions authorized by legislatures. When a judge or judiciary hears a contested case involving an agency’s interpretation of a statute, they defer to a quality party—typically a state or federal agency—for their technical subject matter expertise in interpreting a statute rather than substituting the court’s own interpretation.

In recent years, several proponents of dismantling the authority of regulatory agencies have moved to attack judicial deference, in the hope that the courts will no longer follow an agency’s interpretation of a challenged statute or regulation. Judicial deference has been challenged at both the state and federal level with a few key decisions reflecting a potential shift toward deregulation and general skepticism of technical, subject matter expertise. Though these efforts do not target public health by name, the erosion of executive agency authority makes it harder of all agencies to implement needed rules and policies in the future—including state and local health agencies.

Early last year, the Pacific Legal Foundation (PLF), a legal organization that describes itself as focused on individual liberties and government overreach, identified 11 states that have already ended judicial deference to executive agencies: Ohio, Kansas, Wyoming, Utah, Michigan, and Delaware by judicial opinion; Florida, Arizona, Mississippi, and Tennessee via legislation; and Wisconsin via both judicial opinion and legislation. Several more states introduced bills in 2023 aimed at ending judicial deference to executive agencies:

As introduced, these bills largely aligned with PLF’s model language, which requires judges to interpret statutes, regulations, and other agency documents without deferring to an agency’s legal interpretation (also known as de novo review). If the meaning of a statute remains unclear, under these bills, judges must resolve doubt using a reasonable interpretation that limits agency power and maximizes individual liberty.

While none of these bills were ultimately enacted, they would have undermined the ability of all agencies, including state and local health departments, to interpret laws and make lasting policy based on professional subject matter expertise (SME) and experience. For example, state health agencies typically implement legislative public health requirements—like childhood vaccine distribution—via rulemaking, which in states where de novo review is required, could make such rules more susceptible to risky legal challenges given potential uncertainties in the broad authorizing statutes.

Bills seeking to wholly eliminate judicial deference fail to recognize that maintaining basic tenets of a healthy and functioning society, such as ensuring the air we breathe is safe and clean, cannot always be spelled out with exact certainty, especially among legislators without the requisite professional knowledge and experience. At the same time, public health advocates tracking concerning public health regulatory actions in states where judicial deference to executive agencies has already been eroded may want to consider whether de novo review of agency action may be a helpful policy tool to limit harmful uses of public health authority.

The development of North Dakota’s judicial deference bill also provides an interesting case study. As introduced, the bill would not have allowed the judiciary to defer to a government entity’s interpretation of a statute or regulation. However, the bill later transformed, authorizing only a legislative management study with no mention of limiting judicial deference. Instead, the study would have examined current procedures and provided recommendations relating to adjudicative proceeding procedures. While the study could have resulted in recommendations to limit judicial deference, the bill also required that the study include agencies’ input.

Growing calls for deregulation require public health agencies to act strategically when implementing new rules and policies. They also require the field to be more vigilant of, and proactive about mitigating against, the legal trend of substituting the non-SME judgement of courts for the relevant SME of agencies. This threat to public health may be most obvious in the context of the courts, but the counterpart in state legislatures across the country is equally concerning. 

Network attorneys are available to assist you in navigating and understanding legislation and litigation that might impact public health authority in your state or jurisdiction. Contact Darlene Huang Briggs for more information on how the Network can be of assistance.

This post was written by Arianna Murray, Law Clerk, and Darlene Huang Briggs, Deputy Director, Act for Public Health, Network for Public Health Law, with research support from Evelyn Ozog, Public Health Law Fellow, and Mosalewa Ani, Program Coordinator, Network for Public Health Law; and input and review from Donna Levin, Project Director, Act for Public, Network for Public Health Law.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.