7.5.2 REGULATIONS
As you know, state and local governments are made up of judicial, legislative, and executive branches. Frequently, the legislative branch delegates some legislative authority to the executive branch by directing certain agencies to enact regulations to help clarify or enforce the legislature’s statutes.
They do this because the agencies have needed expertise in particular areas of law (e.g., the Environmental Protection Agency has expertise on environmental law, the Equal Employment Opportunity Commission has expertise on employment discrimination, etc.).If a relevant executive agency has issued regulations relevant to a particular statute, courts will generally defer to that agency’s interpretation. Typically, the agency is enacting those regulations based on specifically delegated authority. Frequently, legislative bodies explicitly delegate regulatory authority in the body of a statute, using language like the following: “The [relevant state or federal agency] shall issue regulations to prescribe the criteria for determining [the statute as a whole, or a specific aspect of the statute].”
Courts generally say that they do not consult even regulations that are on point if the statutory language is clear and uncontroversial. In determining whether to apply a regulation, courts generally use a two-part test known as the “Chevron rule” or the “Chevron test.”25The Chevron test is about how much deference a court should give to an agency’s interpretation of a statute, and courts often speak about whether they are obligated to apply Chevron deference. In general, courts will defer to an agency’s interpretation of a statute if (a) Congress delegated authority as to the issue, or Congress was silent or ambiguous as to the relevant issue; and (b) the agency’s interpretation is “permissible.” An interpretation is permissible unless that interpretation is “arbitrary, capricious, or manifestly contrary to the statute.”26
In briefs, the two-part Chevron test can play out in a variety of ways.
If a regulation unequivocally favors one party, the other party will spend a great deal of energy arguing that the original statute was not ambiguous or was not silent, or that Congress did not delegate authority. A fallback argument, of course, is that even if it is appropriate for the court to consult the regulation, it should not apply the regulation here because its interpretation of the statute is “arbitrary, capricious, or manifestly contrary to the statute.” Depending on the ammunition available, this part of the test could be a three-part argument, with each of the standards forming a phrase-that-pays for a section of the argument.Although the Chevron test is obviously a federal standard, most states apply a similar level of deference to properly enacted state regulations. A Colorado court of appeals, for example, notes that courts “defer to the interpretation of a statute or a regulation by the agency charged with its administration, provided the interpretation has a reasonable basis in the law and is supported by the record.”27Likewise, the Nevada Supreme Court has held that “ordinarily we will defer to the agency’s interpretation of its governing regulations, so long as the agency’s interpretation is within the language of the statute.”28
Of course, state courts are not necessarily bound by agency determinations; different states may articulate standards that give more or less deference to agency regulations. As an Arkansas court put it, “the interpretation of a statute by the agency charged with its execution is highly persuasive and, while not binding on this court, will not be overturned unless it is clearly wrong.”29The amount of deference can depend on both the jurisdiction and the type of agency action. The Kansas Supreme Court has stated, for example, that courts owe “no deference” to the decisions of a board or an administrative law judge when that entity is interpreting or construing a statute.30
Accordingly, if a regulation or other agency pronouncement could be a source for your argument, first verify exactly what action the agency was taking. Was it a formal rule, with notice-and-comment procedures? Was it an agency adjudication? Or was it merely a guideline issued for internal use, but available publicly? Once you know the type of action, you can conduct research to help construct arguments as to the validity of that source.