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Judge Kavanaugh and the Administrative State

How will a Justice Kavanaugh approach administrative law cases?


Judge Brett Kavanaugh has spent the past welve years as a judge on the U.S. Court of Appeals for the D.C. Circuit, the federal appellate court that hears the lion's share of legal challenges to major federal regulations. Of Judge Kavanaugh's nearly 300 opinions, over 100 concern questions of administrative law. Given this experience, should he be confirmed, Judge Kavanaugh would likely become one of the more influential voices on the Supreme Court of questions of administrative law.

In a New York Times opinion piece today, I explore Judge Kavanaugh's administrative law record. Here's a taste:

Judge Kavanaugh's opinions in these cases show someone who takes administrative law principles to heart. Federal regulatory agencies are not provided for in the Constitution. Instead, agencies get their power from Congress. Statutes authorize agencies to promulgate and enforce regulatory measures and detail the steps agencies must follow when adopting rules. For an agency action to be lawful, it must be done in line with an act of Congress and in accordance with the Administrative Procedure Act and other rules of administrative law. As Judge Kavanaugh explained in one opinion, "policy is for Congress and the president to establish as they see fit in enacting statutes," adding that the judiciary's "more modest task" is to ensure that "agencies comply with the law as it has been set by Congress."

In conducting judicial review, Judge Kavanaugh does not grade on a curve. As much as any District of Columbia Circuit judge, he questions whether federal agencies have followed the relevant requirements and acted within the scope of their delegated authority. Where agencies come up short, he is not one to give them a pass.

As I explain in the piece. Judge Kavanaugh's record is not that of an anti-regulatory zealot, but rather a judge who takes administrative law principles and judicial review of agency action seriously. He is willing to uphold agency action when federal agencies act within the scope of their legal authority and fulfill their procedural and other legal oblicaitons, but not when they don't.

Among other things, this means that a Justice Kavanaugh is unlikely to be a rubber stamp for the Trump Administration's deregulatory efforts. Rather, he will scrutinize their actions carefully, upholding deregulatory initiatives that comply with the law, and rejecting those that do not.