Supreme Court

SCOTUS Nominee Brett Kavanaugh Sees Perils of Aggressive Administrative State

Like Neil Gorsuch, the D.C. Circuit judge has criticized Chevron deference for encouraging executive arrogance.


Larry Downing / Reuters / Newscom

When Donald Trump picked Neil Gorsuch for the Supreme Court last year, one of the most frequently heard complaints concerned the nominee's resistance to the doctrine that a court applying an ambiguous statute should defer to any "reasonable" interpretation favored by the administrative agency charged with carrying it out. If Trump chooses Brett Kavanaugh to replace Anthony Kennedy, we are likely to hear similar criticism, because the D.C. Circuit judge also has expressed concern about the threat that so-called Chevron deference poses to the rule of law and the separation of powers.

"Chevron has been criticized for many reasons," Kavanaugh observed in a 2016 book review. "To begin with, it has no basis in the Administrative Procedure Act. So Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch. Moreover, the question of when to apply Chevron has become its own separate difficulty."

Drawing on his experience in the George W. Bush administration, Kavanaugh wrote that "Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints." While "it is no surprise that Presidents and agencies often will do whatever they can within existing statutes," he said, "that inherent aggressiveness is amped up significantly" by anticipation of Chevron deference. In fact, "executive branch agencies often think they can take a particular action unless it is clearly forbidden."

As a judge, Kavanaugh has tried to rein in that tendency by developing the "major questions" (a.k.a. "major rules") exception to the Chevron doctrine, which applies to agency decisions that have sweeping effects but are not clearly authorized. Last year he argued that the Federal Communications Commission's regulatory imposition of "net neutrality" clearly qualified for that exception:

The FCC's 2015 net neutrality rule is one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States. The rule transforms the Internet by imposing common-carrier obligations on Internet service providers and thereby prohibiting Internet service providers from exercising editorial control over the content they transmit to consumers. The rule will affect every Internet service provider, every Internet content provider, and every Internet consumer. The economic and political significance of the rule is vast.

Kavanaugh was dissenting from a decision not to rehear a case in which a D.C. Circuit panel had upheld the FCC rule. "Congress did not clearly authorize the FCC to issue the net neutrality rule," he noted. To the contrary, Congress had debated net neutrality for years without taking legislative action to establish that policy. But if "an agency wants to exercise expansive regulatory authority over some major social or economic activity," Kavanaugh said, the Supreme Court's precedents say "an ambiguous grant of statutory authority is not enough." Therefore, he concluded, "If the Supreme Court's major rules doctrine means what it says, then the net neutrality rule is unlawful because Congress has not clearly authorized the FCC to issue this major rule."

As Notre Dame law professor Jeffrey Pojanowski noted at the time, the major questions exception offers a way to curb the problems created by Chevron deference without scrapping the doctrine entirely. "Judge Kavanaugh's careful explication and reformulation of the 'major questions' exception is an important development in its own right," Pojanowski wrote, "and a rich source for further reflection on the role of the courts in the administrative state."

Raymond Kethledge, another Supreme Court contender, also is a critic of Chevron, as Damon Root noted last week.

NEXT: Trump Voters Stand by Their Man as He Wrecks Their Jobs

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  2. The paradoxical part of the Chevron Deference problem is that by upholding the principle of stare decicis for itself, SCOTUS is creating the opposite for the executive branch agencies. Certainty in the law is a major principle of the rule of law, hence the reluctance of the Supremes to overturn a prior decision, but if you’re going to allow these agencies the latitude to change their interpretation of the law depending on the whim of the executive, you’re going to get exactly what we’re getting – Obama says the law means one thing, Trump says something different. And of course the people who applauded Obama using his prerogative to decide what the law meant are outraged that Trump gets the same prerogative and vice versa. There’s no certainty in the law if the law is just whatever the current occupant of the Oval Office says it is.

    1. Can estoppel be used in such cases, a when BATFE says one thing about bump stocks, then contradicts itself a few yrs. later?

    2. The sad part is: with the extreme volume of law on the books, all three branches cannot escape making it up as they go along [primarily because elected terms interrupt full focus as SCOTUS enjoys, and even they fall down despite being able to cherry pick their work]. Without some deconstruction of the federal leviathan, no degree of intent or ethics can prevent a coming legal supernova where law neuters itself in pitiful fashion as statute reaches a standoff with case law [and only billionaires have proximal access to the law by virtue of the team size required for discovery]. A million bucks doesn’t buy much protection from the government anymore [a year, tops?]. But what good is case law without action? If the black robed tie too many more careless knots, legal enforcement of statutes may become an impossibility in the future – at that point, we can use their robes to wipe our rears as courts without police and prosecutors bringing cases are beggars writing postcards to santa claus. Trump may try dodging this beast, but as long as congress clings to running on autopilot, process of all sorts will continue the death spiral to look more like the LaBrea tar pits did to the wooly mammoth: those arriving to help get sucked down too. The “swamp” is not of party or personality, but a horrific systemic condition. And, SCOTUS can’t fix congress, no matter who the president nominates. I’m ready for term limits…

      1. Flinch, you seem to be very knowledgeable about this. I’m curious, what would be a solution to such a problem? Is it just endemic to common law systems?

  3. Reason has gone all in on Kavanaugh as the next pick.
    Chuckles if Donald has a short list sorted differently than the media has it.

    1. So you are trying to out Hihn the Hihnfection (real or sock version) as the dumbest fuck around here. Just focus like the Little Engine That Could and your dream might come true.

  4. Kavanaugh may think administrative agencies are over-reaching and should not be interpreting laws, but you won’t see Kavanaugh attacking judicial arrogance, particularly the arrogance of appointed-for-life federal judges. Arrogant judges probably cause at least as much harm as agency administrators and their agents.

    Federal appellate judges, like Kavanaugh, are no exception. They routinely deny arguments that they don’t consider important enough for them to consider. They continue to allow convictions and sentences to stand despite the fact that defendants were denied fair trials. Prisons are full of inmates who were wrongly convicted. 97 out of 100 federally indicted defendants plead guilty, in large part because they know they can’t get a fair trial.

    The worst of the worst of the arrogant are the members of the Supreme Court, who can best be described as supremely arrogant. That’s the club Kavanaugh hopes to join.

  5. I don’t disagree with the criticism of Chevron, but there is a bit of a problem that Congress is a fully willing participant in letting agencies settle things that should be a matter of law, as a matter of policy.

    That is to say, if Congress ever chose to, they could make Chevron moot. But Congress likes not having to micromanage, so while it occasionally bitches about some specific policy or another, there’s no real will to fix it.

    It’s very much like the presidency and war powers. If Congress ever wanted to, they could pull back all our troops and say “no” to foreign entanglements without a declaration of war. But they haven’t in decades because they like shirking that responsibility. And no act of the SCOTUS can force Congress to take responsibility, it writes the laws and will legislate a way to avoid doing it’s job.

    So in short, I agree that agency policy having the force of law is a problem. But Chevron is just a symptom, and the real problem is Congress. And the SCOTUS can’t fix Congress.

    1. Congress is a fully willing participant in letting agencies settle things that should be a matter of law, as a matter of policy.

      But Congress likes not having to micromanage,

      Congress doesn’t mind micromanaging, but they like to deflect & hide responsibility. We have members of Congress in their Record 50 yrs. ago that in legislation they were passing (precursor to the Controlled Substances Act), they weren’t controlling Librium & Valium because they were sure the Sec’y of HEW would. They must’ve figured voters wouldn’t read the Record, but would know about Cabinet actions.

    2. ut Chevron is just a symptom, and the real problem is Congress. And the SCOTUS can’t fix Congress.

      Yeah, they can. If federal judges void provisions for vagueness, they’ll force Congress to not be vague. For instance, in the controlled substances legisl’n referenced above (& its successors), administrative ability to control or decontrol substances hinges on their “abuse”, a term which is statutorily undefined, & which is itself being abused by contradicting the usu. legal meaning of “abuse” in product liability law. Void that for vagueness, & then all administrative control actions retroactively are voided; the schedules go back to how they last appeared statutorily.

      1. Nice thought, but “…as the secretary shall determine” didn’t catch their attention, so I don’t think they notice vagueness – too busy distracted by those pesky emanations and penumbras, I suppose.

      2. Agree 100 per cent. Stripping dipshit life tenured bureaucrats of the ability to make up laws will hopefully be a step in the right direction. If it’s harder for a stupid and inept Congress to pass more legislation it’s a cherry on top. It really is the most important question of the day, more statist hackery or halting it. If Trump gets to replace Weekend at RBG’s or if she gets Pelican Briefed (just joshing Preet!) individual freedom MIGHT have a future and we can eventually forget about any further stupid shit Trump does.

  6. No matter who Trumplethinskin nominated the Left was going to shit its pants and call the nominee, ”the worst possible choice.”
    Attention whore Corey Booker is on the crying’ lesbian’s TV show doing just that.

    1. Sorry I missed that fiasco…..nah.

  7. I like his attitude towards “Chevron”. The hired help — the bureaucrats — should know their place and stay there. If we want their opinion, we’ll give it to them.

    Vote Libertarian.

    Larry Gillis, Cape Coral FL

  8. What’s with the blind allegiance to the police? I consider myself pretty conservative, but where I differ with my conservative brethren significantly is the criminal justice system and the police. Some people go out of their way, bending over backwards and twisting themselves into pretzels to defend cops.

    It’s like some people with mommy or daddy issues…they have emotional problems because their dad didn’t hug them enough…but with them, it’s criminals…it’s like they have some kind of psychological inability to defend a “criminal” from the unyielding power of the criminal justice system. If the cop says their bad, they must be bad.

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