Curbing the Extraordinary Power of Administrative Agencies - HB 2238

by Jon Riches
February 27, 2018

We live in a system where administrative agencies exercise extraordinary power.   Under existing law, administrative agencies are free to fine people, deny them licenses, and even recommend criminal penalties for alleged violations of agency rules and regulations.  These rules and regulations are not made by elected lawmakers, but by the agency itself.

The way the system works is that administrative agencies are empowered to make rules through the rule making process (and often through less formal processes) which have the force of law, investigate alleged violations of those rules, and adjudicate those alleged violations with an administrative law judge (“ALJ”) hired and employed the agency.  If they agency doesn’t like the ALJ’s determination, it can ignore it.

And then, if and only if, the case finds it ways to an actual, supposedly impartial court, the court, under existing law, is obligated to defer to the agency’s interpretation of the law.

So that means, if you are a regulated person, and an administrative agency says you violated the law, and you say statute “X” means “A,” and the agency says statute “X” means “B,” the court is obligated to put a thumb on the scale for the agency.

In other words, we live in a system where unelected bureaucrats at administrative agencies are lawmaker, sheriff, judge, and jury.  And if agency decisions are challenged in court, the law requires the court to side with the agency, and in all but the most extraordinary circumstances, the agency’s actions will be upheld.

It is astonishing a system this bereft of due process exists in the Land of the Free.

HB 2238 helps corrects the problem.  It allows a regulated party that appeals an agency decision to have its case reviewed fairly and independently by a superior court judge, without deference to an agency’s own interpretation of the law.  In other words, it directs courts to treat these cases the same they would any other case, without favoring the government party over the private party.

Administrative deference is offensive to both due process and republican government.  This bill offers Arizonans what we should already enjoy – an equal and fair opportunity to challenge regulatory actions without having to contend with a hearing in court that is stacked against them.

Jon Riches is the Director of National Litigation at the Goldwater Institute