Missouri Senate Government Efficiency Committee: Nino Marchese Testimony on Judicial Deference
Judicial review is a long-established power and core function of the judicial branch in both state and federal systems.
ALEC Judiciary Task Force Director Nino Marchese, testified before the Missouri Senate Government Efficiency Committee on judicial deference — its impact, misconceptions, and the need for reform to uphold the judiciary’s role in interpreting the law.
Chairwoman Coleman, Vice-Chair Hudson, and Members of the Missouri Senate Government Efficiency Committee:
My name is Nino Marchese, and I serve as the director of the Judiciary Task Force at the American Legislative Exchange Council. I appreciate the opportunity to speak before the committee today to provide our nonpartisan research and analysis. Thank you for having me.
The American Legislative Exchange Council is America’s largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism. Comprised of nearly one-quarter of the country’s state legislators and stakeholders from across the policy spectrum, ALEC members represent more than 60 million Americans and provide jobs to more than 30 million people in the United States.
Members of ALEC’s Judiciary Task Force include state lawmakers and policy experts who handle issues ranging from criminal justice reentry and recidivism to civil litigation and administrative state reform. A large part of the Task Force’s portfolio includes protecting the separate and co-equal framework established between our three distinct branches of government.
To begin, I’d like to touch on our members’ experiences with judicial deference reform. Regarding opposition to eliminating deference, the most common obstacle our members encounter is the fundamental misunderstanding of the doctrine itself. Additionally, there are claims that conservative parties and/or courts are given a leg-up in the court room when deference is eliminated. However, because of its procedural nature, deference provides no benefit to any type of group or political party. But prohibiting deference does promote justice and upholds our nation’s separations of powers.
So, what is judicial deference, exactly? It is the practice of a court deferring to the executive on something courts have long been assigned the exclusive privilege and responsibility to handle themselves: questions of law. With deeply set roots, our legal system has determined that when the law is ambiguous, objectively or arguably, the judiciary will be the adult in the room to determine what the meaning of a law is. Judicial deference obliterates this legal framework our nation is built on by instead having courts defer to bureaucrats’ interpretations of the law when an ambiguous statutory matter is afoot.
Deference takes one of two forms: mandated or voluntary. The former, forcing courts by law to defer to agency views, with the latter simply allowing the practice. Missouri’s particular deference status is unclear, as its courts have held inconsistent rulings on the matter. What is clear is that this legislature has yet to prohibit the practice.
But what’s so wrong with Missouri courts deferring to executive agencies? Employees in state agencies often dedicate their careers to developing the subject matter expertise which they use in their statutory enforcement responsibilities. Further, some may have a deep knowledge of the policy issues the judges are tasked with interpreting and ruling on. Regardless, courts deferring to such employees creates three major problems.
First, it increases the power and unjustified lawmaking abilities of unelected bureaucrats. Each Senator on this committee endures the adversarial struggle of justly achieving their political power through an election, earning lawmaking authority through the consent of the governed. One of the core purposes behind our representative democracy is to ensure that those who make our laws are accountable to the public they govern.
Unelected bureaucrats are not. Nonetheless, they hold immense rulemaking powers which govern and affect the lives of Missourians. Allowing subjective agency interpretations of a law to prevail over that of a judge’s effectively increases bureaucracy power because it teleports their preferred reading of this legislature’s laws into the courts—and into the law—where they might have otherwise died in a government building cubicle.
Second, judicial deference abdicates judges of their exclusive responsibility to interpret the law. Judicial review is a long-established power and core function of the judicial branch, in both state and federal systems. It is well equipped to interpret the law when unclear and has many tools at its disposal to do so. Most importantly, legal interpretation is a responsibility exclusive to the judicial branch.
While Agency expertise on policy issues may serve as potentially valuable insight and resources to actual lawmakers, their views have no business determining judicial decisions. In mandated deference jurisdictions, judges are simply stripped of this exclusive power because they are forced to defer. But in jurisdictions where deference is not required, but instead allowed, judges are simply forfeiting an exclusive responsibility our system has deemed them responsible to exercise.
Lastly, deference simply gives a party in a lawsuit an unfair advantage in the court room. For those seeking a remedy through the courts, a level playing field is a minimum expectation. But when deference is at play, and a party brings an action — let’s say a civilian suing the state which they believe to have violated their liberty — the courtroom touts two basketball hoops on either side of the ballcourt, one at a standard height for the private citizen, and the other six-feet-lower for the agency defendant. The entire system is made less fair because the court is not interpreting the law de novo. Instead, bureaucrats do so for the parties.
Many other states like Missouri are revisiting this issue. Just last year, Idaho, Nebraska and Indiana’s legislatures all prohibited the deference practice, and another eight states have already introduced similar legislation for this 2025 session. A contributing factor has been the timeliness of last year’s landmark Supreme Court ruling out of the Loper Bright case which overturned Chevron Deference, prohibiting the practice in the federal judiciary, however, only in the federal judiciary. As a result, state legislators are more motivated than ever to take power out of the hands of unelected bureaucrats and put it back into those of their state judges where it belongs.
I hope our ALEC nonpartisan research and analysis is helpful to you all as you join states across the nation in considering this very important issue. I am happy to answer any questions the committee may have.