Nino Marchese Testimony in New Hampshire: Judicial Deference in State Agencies

ALEC Judiciary Task Force Director Nino Marchese testified before the New Hampshire Senate Executive Departments and Administration committee regarding legislation that breaks down the scope of review of state agency interpretations.

Read his testimony below:

Chairman Pearl and members of the committee:

My name is Nino Marchese. I serve as the judiciary director of the American Legislative Exchange Council, or ALEC. Thank you for the opportunity to testify on this bill.

ALEC is a nonpartisan, nonprofit membership association of state legislators, representing approximately one-quarter of the nation’s legislators. As judiciary task force director, I work on civil and criminal justice policy, with a focus on administrative state reform and separation of powers.

Judicial deference is a doctrine that requires courts to adopt legal interpretations made by executive branch agencies. In practice, it limits the judiciary’s role and shifts interpretive authority to unelected bureaucrats, raising concerns under the separation of powers. The legislature is responsible for lawmaking, and the judiciary is responsible for interpreting the law. Deference disrupts that balance by requiring courts to yield to agency interpretations.

As noted by the bill sponsor, the U.S. Supreme Court ended mandatory judicial deference at the federal level in 2024. Federal courts are no longer required to defer automatically to agency interpretations. That decision did not apply to state courts, where deference doctrines remain in place, including in New Hampshire.

In recent years, approximately 13 states have enacted legislation to prohibit judicial deference. Several others, including New Hampshire, are considering similar reforms.

This legislation restores the judiciary’s role as the independent interpreter of the law. It does not prevent courts from agreeing with agency interpretations; it simply removes the requirement that they do so.

In New Hampshire, deference doctrine is recognized at the Supreme Court level but applied inconsistently. Some states mandate deference, while others allow it on a discretionary basis, resulting in unpredictability. This legislation provides clarity and consistency by eliminating the doctrine.

The bill aligns with ALEC’s model Judicial Deference Reform Act. We commend the committee for considering this issue and would be glad to provide additional information.

Thank you. I am happy to answer any questions.