ADMINISTRATIVE LAW IN THE STATES: AN INTRODUCTION TO THE SYMPOSIUM.

• Author: Sutton, Jeffrey S.

Five States--Colorado, Georgia, Kansas, Pennsylvania, Wisconsin--and five distinct approaches to administrative law, each explained by a distinguished justice from each State's high court. Perhaps there should be a round-robin tournament to pick the best one. Or perhaps Adam White, the symposium's able organizer in chief, might judge the justices, declaring a winner after reading each justice's submission and hearing them present their cases. Or perhaps I--federal judges have trouble resisting the temptation to pick winners--should decide who wins.

But maybe winning is not the right way to think about it. As these timely and thoughtful essays confirm, state courts are all over the map when it comes to their approaches to administrative law and to today's most pressing issues: the permissible scope of explicit delegations of legislative power and the propriety of implied delegations of interpretive power. Sure, state courts sometimes identify winning insights suitable for export to other States and eventually even to the federal courts. Sure too, state courts may serve as a forum for trial-and-error approaches to new challenges, say the proper approach to administrative law during a pandemic. But as often as not, more often than not in truth, the state courts show variation, perhaps because variation is often due in a country this large and filled with so many different, sometimes competing, demands. If there can be a culture and cuisine of place, there can be an administrative law of place.

But who would know? While state administrative law historically has revealed many distinct approaches and insights, much of the attention on the topic for too long has gone to the federal side of things. Our obsession with federal law inclines us to notice changes in administrative law most of all through decisions of the U.S. Supreme Court, the Hubble Telescope for assessing American law. That lens reveals federal decisions cutting back on judicial deference to agency interpretations of law--the Chevron doctrine--and warning Congress that the Court may enforce the nondelegation doctrine more rigorously in the future. But that singular focus often misses key innovations in American administrative law where they first occur--in the States--then misses the lessons that the state experiences have to offer.

What was once invariably true about administrative law has become less true. Today's symposium confirms a promising trend. For decades, state administrative law languished in academic circles. (1) Law review articles and casebooks alike consistently overlooked the busier and more diverse state administrative docket. (2) But state administrative law in recent decades has received much-needed and much-deserved attention. (3) Just in time, too. As scholars, lawyers, and citizens alike grapple with the ever-expanding administrative state, there is much to gather from a careful study of the assorted state approaches. And the state approaches vary indeed.

Take Wisconsin. Justice Brian Hagedorn highlights the "drastic changes" in the State's approach to administrative law in recent years and the multi-branch sources of that change. (4) In 2018, the Wisconsin Supreme Court "jettisoned" its "longstanding" three-tiered approach--"great weight," "due weight," "no weight" (5)--by which the courts assessed agency interpretations of laws. (6) The majority in Tetra Tech divided over whether the Wisconsin Constitution's separation of powers imperatives required the change or whether the Court, having "giveth" this trio of deference standards, could simply "taketh" them away. (7) The debate became moot when the legislature endorsed the change soon after the decision. It codified a no-deference approach through an amendment to Wisconsin's Administrative Procedure Act. (8)

Think about that. Wisconsin fixed a serious separation of powers challenge by calling on all three branches. The judicial branch initially identified the problem. But it could not settle on a way out. The legislature proposed a solution. And the governor signed the presented bill into law. The only government officials not directly included in the solution, as it happens, were in the State's agencies. Wisconsin may be subject to "political polarization" (9) but that reality has not prevented the State from using cooperation and coordination among the three branches to wrestle with--and identify solutions for--modern problems of government.

What will this new approach mean in the future? Justice Hagedorn predicts that the rejection of deference will have its greatest impact in "cases where longstanding agency interpretations are overturned by courts." (10) The new approach, he anticipates, will have the "salutary effect" of refocusing disputes on the statutory text, not the reasonableness of an agency's interpretation or the ineffable ambiguity (or not) of a law. (11) Absent legislative change, the default rule will be the court's interpretation, not an agency's.

That future became the fore with COVID-19. (12) The pandemic has generated many quarrels between the Badger State's legislature and governor, frequently refereed by its High Court. Justice Hagedorn describes several cases that grappled with these issues, including debates about the scope of permissible rulemaking power, the governor's authority to postpone an election, the Wisconsin Department of Health Services' authority to promulgate a "Safer at Home" order, and the scope of power of a county health officer. (13) Separation of powers principles undergirded the disputes, and at least two of the contests pressed the Court to decide the case on nondelegation grounds. (14) So far at least, the Court has not used the nondelegation doctrine to deal with the disputes. In his separate writing in the "Safer at Home" case, Justice Hagedorn showed one reason why. Invoking the same separation of powers principles that the majority invoked, he "circumscribe[d]" the issues on appeal by resolving the case on statutory interpretation grounds. (15) Constitutional avoidance principles, fair enough, offer one way to handle these cases. Either way, given Wisconsin's even political divide reflected in a divided government, Justice Hagedorn sees no reason to think such separation of powers battles in the courts will abate soon. (16)

In Kansas, administrative law has risen to the top of the docket of its Supreme Court, sometimes in ways similar to Wisconsin, other times in ways of its own. Justice Caleb Stegall notes that Kansans voted on a constitutional amendment in 2022 that would have allowed the legislature to override agency rules and regulations through a majority vote. (17) The amendment failed. But the reality that the people used scarce amendment resources to put the topic on the ballot highlights that separation of powers has become a matter of some salience in the State. (18)

With this framing, Justice Stegall traces the evolution of separation of powers in Kansas courts. He explains that a strict application of nondelegation principles (19) eventually gave way to a pragmatic...