An Arizona judge this morning struck down the state’s controversial “cage-free egg rule” in a lawsuit brought on behalf of consumers and restaurant owners by the Goldwater Institute and the Pacific Legal Foundation. That rule—which required all eggs sold in Arizona be from “cage free” hens—was adopted in 2022 by Hobbs administration bureaucrats in an effort to prevent voters from having a say on the question. But shortly after the rule was adopted, Gov. Katie Hobbs began postponing its implementation, due the fact that it would have significantly increased food prices throughout the state. The egg rule remains a prime example of administrative state overreach.
When the Arizona Department of Agriculture adopted the rule, they weren’t deterred by the fact that the people’s elected representatives never created or even considered such an idea. On the contrary, the department claimed it could act under a law that gives the agency power to “adopt rules for poultry husbandry and the production of eggs”—language so broad that it would seem to enable the agency to do whatever it likes.
That’s a problem, because such a broad grant of power violates the constitutional principle that laws must be made by the legislature, not by unelected bureaucrats. What’s more, five years ago, the Goldwater Institute helped write and pass HB 2599, a pathbreaking new limit on administrative power in Arizona, which says that agencies may not “make a rule that is not specifically authorized by statute.” A statute that lets bureaucrats “adopt rules for poultry husbandry and the production of eggs” is general, not specific. So, using HB 2599, we went to court on behalf of restauranteur Grant Krueger, arguing that the egg rule is not “specifically authorized.”
And in today’s ruling, the Maricopa County Superior Court agreed: “‘Specific,’” it declared, “generally means…explicit or tending to specify. ‘Authorized’ generally means…permitted or directed or possessed of authority. [So]…the language of the statute must…be specific enough to suggest that the Legislature contemplated or anticipated the mandates or standards in the proposed rule. [Yet] the statute on which [the Department] relies, A.R.S. § 3-710(J), is…so broad and vague that it could be used to authorize nearly any rule.”
Today’s ruling is not only a win for businesses and consumers in Arizona, but a superb example of how the administrative state—perhaps the single largest threat to constitutional democracy in this country—can be reined in. Bureaucratic agencies too often exercise the legislative, executive, and judicial powers together, in violation of one of our most important constitutional principles, in order to write rules that have the force of the law—even though the employees of these agencies have never been elected by the people. And it’s not just questions about food production—which are important enough. Virtually every aspect of our lives today is touched in some manner by the power of the administrative state. That threatens to turn our free society into what we call the Permission Society—in which the individual has no rights, but only permissions, and must ask the government “mother may I?” for every act in his or her life.
But there is a better way. Arizona’s “specifically authorized” requirement is just one of the many ways the Goldwater Institute has pioneered for making these agencies accountable to the people once again. Along with our Permit Freedom legislation, our Right to Earn a Living law, our Judicial Deference Reform Act, and other legislation—all of which have been, or are being adopted by states across the country—we have shown that states do have it within their power to push back against administrative overreach.
You can read today’s ruling here and learn more about our work on the problem of the administrative state here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
