Introduction
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment.
James Madison, Federalist No. 10
There can be no liberty … if the power of judging, be not separated from the legislative and executive powers.
James Madison, Federalist No. 47
The right to a fair trial before an impartial tribunal is one of the oldest and most fundamental principles of free, republican government. It is, moreover, bound up inextricably with another fundamental principle: the separation of powers. The North Carolina State Constitution protects both. It declares that “justice shall be administered without favor, denial, or delay” and that “the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other.” Both principles were severely eroded over the course of the 20th century. Fortunately, a movement to restore them is gaining momentum both nationally and in North Carolina.
The self-styled “progressive” elite that rose to power in the early 20th century hated the separation of powers and all the other checks and balances embodied in the traditional American system of limited government. With remarkable persistence, they conducted a long campaign to replace that system with a unified regulatory state in which unlimited power was assigned to ostensibly wise and beneficent technocrats in the executive branch. By the end of the century they had achieved their goal. Today most of the legally binding rules that govern Americans’ conduct consist, not of statutes enacted by their elected representatives, but of executive orders and regulations promulgated and enforced by administrative agencies.
Progressive legislators initiated the transformation by delegating their power to make legally binding rules to administrative agencies. They could not have succeeded, however, without the connivance of progressive jurists. When citizens challenged the new regulatory regime in court, judges had a duty to act as neutral arbiters, and they did so for many years. Eventually, however, they were persuaded to abdicate that duty and start applying two forms of “judicial deference” that tipped the scales decisively in favor of the government.
Tiers of Scrutiny
During the first few decades of the 20th century, constitutional challenges posed a major threat to the new regulatory regime. The United States Constitution and all the state constitutions explicitly assigned the legislative and executive powers to separate branches of government. On their face, the statutes that transferred legislative power to administrative agencies appeared to violate those constitutional provisions. Making matters worse, many of the rules promulgated under those statutes also appeared to violate other constitutional checks on governmental power, including explicitly guaranteed individual rights. When aggrieved citizens challenged the new regulatory regime on the basis those constitutional provisions, the courts — acting as neutral arbiters — often ruled in their favor.
The honest and above board way to have dealt with that situation would have been to try to amend the relevant constitutions. Instead, beginning in the 1930s, the progressives persuaded the courts to adopt a “tiers of scrutiny” approach to judicial review under which independent and impartial review was reserved for laws and regulations that impinged on a handful of rights that were deemed to be “fundamental.” All other laws and regulations were automatically presumed to be constitutional, and challengers who wanted to overcome that presumption were required to show that the law or regulation under review lacked any conceivable rational basis. The list of fundamental rights was short and subjective. It included freedom of speech and religion and the right to equal protection. It emphatically did not include economic rights like the right to own property and the right to earn a living.
Administrative deference
As the new regulatory regime expanded, disputes also arose between citizens and administrative agencies regarding the meaning of the statutes that delegated legislative power to those agencies and over the meaning of the rules the agencies promulgated under those statutes. To tip the scales in the government’s favor in such cases, the progressives persuaded the courts to adopt a policy of “administrative deference.” Under that policy, the agencies’ interpretations of statutes and rules were presumed to be correct, and challengers could only overcome that presumption by showing that the agency’s interpretation was clearly irrational.
Between them, tiers of scrutiny and administrative deference gave administrative agencies effective control over all three functions of government: legislative, executive, and judicial. That clearly violated the separation of powers, but it also violated the right to a fair trial. A tribunal that defers to one party in a dispute can hardly be said to be administering justice “without favor.”
The good news is that a movement to reform administrative deference is well under way, and North Carolina has positioned itself as a leader of that movement.
In 2025, the North Carolina Supreme Court renounced administrative deference as a matter of doctrine. The North Carolina General Assembly now has an opportunity to consolidate that reform by proscribing administrative deference as a matter of statutory and constitutional law as well.
Restoring the separation of powers and the right to a fair trial will also require tiers of scrutiny reform, and the need for such reform is particularly acute in North Carolina. As currently practiced, tiers of scrutiny cannot be reconciled with the text and history of the North Carolina Constitution. The North Carolina Supreme Court should look for an opportunity to either renounce tiers of scrutiny altogether or bring it into better alignment with our constitution.
Key Facts
- In 2025, the North Carolina Supreme Court became the tenth state supreme court to renounce administrative deference. In Savage v. NCDOT, it “expressly disavow[ed] any rule requiring courts to defer to an agency’s interpretation of a statute,” and in Mitchell v. UNC Bd. of Governors, it held that “courts interpreting state administrative regulations must freely substitute their judgment for that of the agency and employ de novo review.”
- These decisions eliminated administrative deference as matter of judicial doctrine in North Carolina. Judicial doctrine can change, however, which is why some states have also taken steps to eliminate administrative deference as a matter of law.
- In 2018, Arizona enacted a statutory ban on administrative deference:
In a proceeding brought by or against a regulated party, the courtshall decide all questions of law, including the interpretation of aconstitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency
- Also in 2018, Florida ratified a constitutional amendment banning administrative deference:
In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule and must instead interpret such statute or rule de novo.
- While eliminating administrative deference is important, restoring the separation of powers and the right to a fair trial will also require tiers of scrutiny reform, and that is particularly true in North Carolina.
- Tiers of scrutiny was originally developed by the federal courts to insulate economic regulations from challenges under the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. It was at least plausible in that context because the United States Constitution does not explicitly mandate a separation of powers, does not explicitly guarantee the right to a fair trial, and provides few explicit protections for economic rights.
- Tiers of scrutiny makes much less sense in North Carolina. The North Carolina Constitution explicitly mandates the separation of powers, explicitly guarantees the right to a fair trial, and declares several economic rights to be among “the great, general, and essential, principles of liberty and free government.”
