Nine months after the nation’s highest court rewrote federal rules for judicial deference, two members of North Carolina’s top court have signaled interest in tackling a similar task.

Expect significant impacts for government agencies and people who believe those agencies have violated their rights.

A judge exercises deference when bowing to a government agency’s interpretation of a law or regulation.

In June 2024, the US Supreme Court struck a blow against deference in Loper Bright Enterprises v. Raimondo. The high court jettisoned the 40-year-old “Chevron deference” standard.

Federal courts will no longer defer to executive agencies’ interpretations of ambiguous laws. When plaintiffs challenge those laws, government legal arguments will get no extra weight.

The Loper Bright decision does not apply to state judges. Yet in cases before the North Carolina Supreme Court in February, two justices sought clarity about state deference rules.

One case pits fired Winston-Salem State University professor Alvin Mitchell against the school. Mitchell’s lawyers argue that WSSU failed to follow proper procedures when the chancellor dismissed him.

Lower courts have ruled against Mitchell. The state Appeals Court’s decision specifically referenced deference to the university.

“The executive branch is here today to ask this court to allow it to play a role in saying what regulations mean, even though the power to say what law is has been the judicial power since the time of the founding,” lawyer Nathan Wilson argued for Mitchell before the state Supreme Court. “If this court agrees with that request, then the executive branch will be able to place a thumb on the scale in all regulatory interpretive disputes between it and North Carolina citizens going forward.”

Deference to government agencies’ interpretation of regulations is known as Auer deference, based on a 1997 US Supreme Court precedent.

“If we were going to affirm the Court of Appeals, we would be affirming a standard of review that includes probably the most aggressive description of Auer deference that any … state court in North Carolina has ever had,” said state Supreme Court Justice Richard Dietz. “It does seem like the issue before us is whether or not, whatever we do in the case, we need to say what the correct standard of review is in this type of case going forward.”

The university’s lawyer explained that courts have considered an agency’s interpretation along with other factors, such as “the thoroughness evident in the consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade.”

“Why isn’t that just saying: If you make a good argument, or you make a better argument, you win?” responded Justice Trey Allen.

Executive agencies can attempt to wield legislative or quasi-judicial power, Allen said. “Why shouldn’t we look at those closely to make sure that the executive agency is not infringing on the separation of powers?”

“What does it say to the citizen who comes to court — and usually already has sort of the burden — when the courts say, well, we’re going to assume the government is right?” he asked.

Previous North Carolina court rulings have mentioned “great deference,” “due consideration,” or “great weight.” Those words could mean “be respectful of the agency’s interpretation when it brings that interpretation to court, but ultimately we wield the judicial power,” Dietz suggested.

“If we say your interpretation is reasonable but there’s a better one, we go with that one, and we don’t defer to some agency interpretation that we don’t think is the right one,” he added.

Deference also influenced state Supreme Court arguments in Thurman Savage’s case. The state Department of Transportation fired Savage over his role in falsifying bus driver recertifications. Lower courts deferred to DOT’s interpretation of state law.

“We need to be respectful of the fact that someone else with a duty to interpret the law looked at this,” Dietz said from the bench. “Ultimately, in every case, our role as the Supreme Court, if there’s more than one possible interpretation of the statute, … we have to decide ourselves what is the correct one.”

“When we interpret a statute, what we’re trying to do is effectuate the legislative intent,” Allen said. “Don’t we sort of cede that role if we defer to an administrative agency’s interpretation of a statute?”

It’s not clear whether other justices share concerns Dietz and Allen expressed in the Mitchell and Savage cases.

Yet it’s possible that those disputes could clarify rules for North Carolinians challenging government agencies’ actions in court.

Mitch Kokai is senior political analyst for the John Locke Foundation.