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There’s an interesting trend underway in the United States … where states and courts are considering (and ruling) that the legislative branch should create law, and the courts should interpret the law without deference to administrative agencies.

The reference to this trend is the Supreme Court of the United States case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [Chevron] where our highest court said the judicial branch should grant deference to the administrative agencies and their interpretations.

For instance, a law says an apprentice auctioneer must be “directly” supervised by his or her sponsor when bid calling. What does directly mean? The administrative agency says that means the sponsoring auctioneer must be physically present. Yet, is that what the legislature meant?

Under the “Chevron” doctrine, a court would defer to the administrative agency for interpretation. Yet, is it right that an unelected staff member of a department determines what this law means? Wouldn’t it be the job of the “elected” judiciary to interpret this law?

My home state has an interesting history with this concept in regard to an auction issue. As we noted here:

No more notable auction case exhibits the textual versus interpreted issues here than Richard T. Kiko Agency, Inc. et al., v. Ohio Department of Commerce, Division of Real Estate, 48 Ohio St. 3d 74 (1990). This case rested on what the statute said, versus how the administrative agency desired to interpret those same words including most notably the term “misconduct” which was undefined in state law.


The law (as passed by the legislature and signed by the governor) didn’t define “misconduct” but the administrative agency said certain acts constituted misconduct — even though the law didn’t define such a term. We ask again, who should decide this? An unelected government employee or an elected judge?

Largely since 1984 (Chevron) courts have deferred to administrative agencies. More recently — and for instance in my home state — courts are now not necessarily deferring to those agencies:

Generally, administrative (regulatory) agencies can create administrative laws (code/rules) to supplement state law, but these rules (laws) require public notice and review. And of course, when talking about “unelected” versus “elected” the Supreme Court of the United States justices are appointed, and therefore not [directly] elected.

I’m somewhat torn — it’s easier for the public to have the administrative agency [simply] interpret laws, but on the other hand, a court is open to the public and subject to debate with due process with more equal treatment.

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at Mike Brandly, Auctioneer, Brandly Real Estate & Auction, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.