Protecting Citizens from Regulatory Agencies

Posted on February 7, 2017

The basic principles of our constitutional system are simple but vital: separation of powers—a government that answers to voters—basic legal protections for people accused of wrongdoing. But there’s one part of our system that routinely ignores these basic principles: that’s the regulatory bureaucracy. These agencies write rules, enforce them, and prosecute suspected rule-breakers—not in court, but in administrative hearings where the rules of evidence and due process don’t apply. And although citizens have the right to appeal after one of these hearings, a judge who hears that appeal isn’t allowed to overturn the agency’s decision except in very rare cases—thanks to a legal rule called “deference.”

That rule is so strong that even if an agency based its decision on hearsay or on evidence that’s contradicted by other evidence, the court must uphold the agency’s decision. 

Arizona legislators now have the chance to ensure that citizens have meaningful legal protections against unelected bureaucracies. SB 1072, sponsored by Sen. Warren Petersen, provides that when a citizen goes to court to challenge the decision of one of these agencies, the court will review that decision with fresh eyes, rather than the blindfold of “deference.”

SB 1072 is a small but important bill. It allows agencies to continue holding hearings, but provides real protections for citizens when they appeal to a state court after an agency hearing. The bill declares that state court judges must review the evidence that the agency used, and decide all legal issues anew, rubber-stamping the agency’s decision. That makes sense: agencies may be staffed by experts, but judges are the ones who should decide legal questions.

This may seem like a modest change, but it’s a meaningful one. Too often, regulatory agencies are given free rein to make decisions without the legal checks and balances that our Constitution imposes in order to protect citizens’ rights. By ensuring that courts will independently review the decisions of agencies—instead of deferring to their decisions—SB 1072 would reinforce important protections for the rights of Arizonans.