Florida Tells State Agencies: “You Don’t Get the Final Say Anymore”

Chevron Deference Talk-Slides.pdf

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The Demise of Agency Deference (Florida Bar Journal Article).

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[Jacob, which the above two attachments if you can please. With respect to the third, italicized paragraph below, please indent it five spaces on each side if you can.]

Date: January, 2020

A quiet revolution in Florida law happened at the ballot box not so long ago—and Florida Legal Foundation President Frank Shepherd was at its center.  In 2018, the people of the State of Florida approved Amendment 6 to the Florida Constitution which prohibited courts from deferring to state agencies’ interpretation of statutes and rules. 

With Amendment 6, Florida voters added a new section—Article V, Section 21—to the Florida Constitution. Entitled “Judicial interpretation of statutes and rules,” It says:

“A state court or officer may not defer to an administrative agency’s interpretation of a statute or rule, and must instead interpret such statute or rule de novo.”

“De novo” means the judge reads the law fresh—on his or her own—without giving weight to the agency’s view.

For decades, courts across the country—including in Florida—often gave agencies the benefit of the doubt when interpreting unclear statutes or rules they were in charge of enforcing. This principle, known nationally as Chevron deference (after a 1984 U.S. Supreme Court case), basically told judges: If the law’s unclear and the agency’s reading isn’t irrational, go with it.

In 2017, Florida Constitutional Revision Commission member Roberto Martinez[1]  called former Judge Shepherd, who had “railed against” judges outsourcing their judicial obligations to the administrative state in one of his legal opinions and asked his assistance in drafting and guiding Amendment 6, which, after running the gauntlet of the constitutional amending process and obtaining the requisite 60% vote of approval in the general election of 2018, now appears in the Florida Constitution as Article V, section 21. Judge Shepherd appeared before the Commission twice to testify in favor of the measure.  

Why This Is a Big Deal

This move reshapes the balance of power in Florida's government. No longer can agencies like the Department of Health or the Public Service Commission interpret laws with near-automatic approval from courts. Now, judges in Florida decide what the law is, not the agencies enforcing it.

What the Amendment does:

The amendment has the following salutary effects.  It:

• Restores judicial independence

• Checks executive overreach, and

• Levels the playing field between citizens and the government

  
  

Just two years ago, the United States Supreme Court followed Florida’s lead by abolishing Chevron Deference at the federal level.  See Lopez Bright Enterprises, Inc. v. Raimondo, 603 U.S. 369 (2025).   But Florida and FLF President Frank Shepherd led the way. 

Read former Judge Shepherd's presentation to the Florida Constitution Revision Commission and Florida Bar Journal article attached above.

[1] The Commission exists pursuant to a provision of the Florida Constitution and convenes every 20 years.  The Commission convened in 2017 and its proposals were placed before the voters at the General Election held on November 6, 2018.