The Thomas J. Moyer Ohio Judicial Center, in Columbus, Ohio.
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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
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…
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