Lawmakers hear mixed views on bill to bar judicial deference to agency interpretations
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Summary
Supporters said HB 12-11 would restore judicial authority after the U.S. Supreme Court narrowed Chevron deference; the Attorney General's Office and some agencies backed clarifying language but warned a second paragraph that directs courts to "maximize liberty" is vague and could create legal uncertainty for administrative proceedings.
Representative Jim Kofalt (Hillsborough County District 32) introduced House Bill 12-11, saying the bill would require New Hampshire courts to exercise independent, de novo review of state agency legal interpretations rather than automatically deferring to agencies.
"This bill ensures that our state courts, exercise independent judgment when reviewing state agency actions without automatically deferring to the agency's interpretation of the law," Kofalt told the Senate eDNA committee. He linked the proposal to the U.S. Supreme Court's 2024 decision in Loper Bridal Enterprises v. Raimondo overturning the federal Chevron deference framework.
Jay De LaValley of the Attorney General's Office said the AG's office supports the bill's first paragraph, which clarifies the deference question, but opposed the bill as drafted because a second paragraph and a new statutory-construction section introduce ambiguity.
"The AG's office does not support the bill as currently constructed," De LaValley told senators, warning the proposed directive to "maximize liberty" could convert statutory interpretation from a legal exercise into a policy judgment and create inconsistent application across adjudicative settings.
Policy groups that track administrative law urged the committee to approve a statutory prohibition on judicial deference. Nino Marchese of the American Legislative Exchange Council said the change restores separation of powers: "Judicial deference is a judicial doctrine, which ties the hands of judges, and forces them to adopt the legal interpretations made by executive branch bureaucrats."
Brian Norman of the Goldwater Institute argued HB 12-11 levels the playing field for citizens in agency proceedings and prevents agencies from expanding regulatory power through expansive interpretations.
Rob Berry, general counsel to the Division of Medicaid at the Department of Health and Human Services, cautioned that the bill's second paragraph could affect narrow, high-stakes administrative proceedings — for example, hearings that permit involuntary administration of medicine for psychiatric emergencies — by increasing burdens on hospitals and complicating liberty-balancing decisions.
Committee members asked for drafting clarifications, including whether statutory terms (for example, "person" versus "individual") should match existing definitions in RSA 5:41-a. The hearing closed with no committee action taken; the measure will remain under consideration.
