Brett Kavanaugh

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.

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  1. What does that protend for the repeal of the obama clean power plan regulations. – The science supporting the imposition of the clean power plan regulations is dubious . The marginal health and cost benefits continue to increase while the air becomes incrementally cleaner. The opposite of the law of diminishing returns.

    Doesnt the administration have to go through a certain process to repeal the regs instead of just showing the regs are based on flawed science.

    1. The agency has to act within the authorizing statute enacted by Congress, as amended by subsequent Congressional action. It has to be within the procedures of the APA. That’s where the prohibition of arbitrary and capricious rule-making comes from.

      In general, the agency gets its direction from the President, via appointment. So when the Presidency changes hands, so too may agency rule-making change to reflect the change in management. As long as they stay within the Congressional mandate (or lobby for changes that get passed the way ordinary laws get passed), they can make substantial changes in rule-making. See, e.g., Ajit Pai.

    2. I’m wondering how many conservatives will suddenly discover how awesome constitutionalizing policy is.

  2. Expect that Kavanaugh will do as Adler suggests. He won’t appear as an anti-regulatory zealot, but will hold regulatory agencies strictly within the four corners of enabling legislation. Then, (the part which Adler doesn’t say) when Kavanaugh doesn’t like the enabling legislation, he will set himself up as a super-legislator, to critique methods, justification, and evidence relied upon by congress, and declare unconstitutional whatever regulatory laws don’t suit his policy preferences.

    I hope I am being unfair to Kavanaugh, and that he turns out instead as a great jurist with respect for separation of powers in fact, and not just in form. Given his provenance, with backing from movement conservatives, that strikes me as unlikely. I assume they know their guy.

    Still, let’s keep an open mind, and look hopefully for signs Kavanaugh might yet outrage the expectations of those who install him. Separation of powers is not what they want for government. They want separation from powers.

    1. I also expect further appointment clause shenanigans.

  3. From the decision Part III, (Judge Kavanaugh alone joins Part III of the opinion):

    For example, if a President disagreed on constitutional or policy grounds with certain federal marijuana or gun possession laws and said that the Executive Branch would not initiate criminal charges against violators of those laws, controversy might well ensue, including public criticism that the President was “ignoring” or “failing to enforce” the law (and if a court had previously upheld the law in question as constitutional, additional claims that the President was also “ignoring” the courts). But the President has clear constitutional authority to exercise prosecutorial discretion to decline to prosecute violators of such laws, just as the President indisputably has clear constitutional authority to pardon violators of such laws.

    So Judge Kavanaugh would have had no problem with President Obama’s DACA policy?

  4. Apedad – So Judge Kavanaugh would have had no problem with President Obama’s DACA policy?

    The difference is executive discretion not to prosecute vs creating rights and benefits not authorized under the law.

    1. DACA did not create any rights and benefits not authorized under the law so I don’t know what you’re talking about.

      1. How can a law authorize a right? Rights exist outside of the law.

        And to say ACA didn’t authorize benefits when there is a glaring subsidy as well as federal payments to insurers… Well I’ve seen dumb comments before but well played sir.

        1. Dude — DACA not ACA…

      2. Work authorizations are not rights and benefits?

    2. “The difference is executive discretion not to prosecute vs creating rights and benefits not authorized under the law.”

      The pre-DACA policy went like this:
      There are people in the US who didn’t follow the correct procedures to come or stay here. The President, as executive, is supposed to take steps to remove those not here properly. BUT the judicial branch says the Constitution requires due process before removal, AND the legislative branch has set a hard limit on how many people can be empowered to hold deportation hearings, the combined result of which is that there is a hard cap on the number of people who can be deported.

      There are more people present illegally than can be deported, so we will prioritize some potential deportees. Recent arrivals, felons, and repeat offenders get first priority for the limited number of deportation hearings we can hold. All other illegal entrants are still potentially deportable, but will wait in line for a very long time to get one of those hearings. We can feed, clothe, and house them at taxpayer expense while we wait for a deportation hearing to become available, or we can leave them to support themselves until a hearing slot comes available. We’ll do some of each, but mostly the latter.

      So… the number of deportations is largely stable, a little more than 400,000 per year.


    3. So, we have a theoretical line of however many illegals there are, millions of them, and the 400,000 in the front can get deported except that we keep pushing people up to the front of the line. So people in the middle of the line are deportable, but don’t really have to worry about getting deported.

      DACA shows up as “say, let’s look in this long line of people waiting their turn to be deported, and see if there’s anybody who should be in the back of the line. We’ll push them to the back of the line, where they’ll be very, VERY unlikely to be deported. We found these kids who’d been brought to the U.S. as children, and who’d grown up here. Yes, they’re here illegally, but it was the parents who brought them. Let’s put them at the very end of the line.
      Everything up to this point is prosecutorial discretion.

      What they did next is to authorize these kids to work legally. Judge Kavanagh would probably strike that down. As a practical matter, it’s smarter to have them support themselves by employment, but that’s not authorized by statute. Maybe the next election will produce a Congress inclined to pass such a statute. The President said he’d sign such a bill, and based on his history of truthfulness, was almost certainly lying. So this particular problem won’t be solved until 2021, at the earliest.

  5. 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. . . . Rather, he will scrutinize their actions carefully, upholding deregulatory initiatives that comply with the law, and rejecting those that do not.

    Is Judge Kavanaugh a computer or a robot?

    Yeah, no kidding…he’s going to uphold the law.

    But we don’t ask the Supreme Court to uphold the law; we ask them to interpret it.

    1. You’re obviously trying to make a distinction that is too subtle for me to discern.

      When a judge “upholds” an agency action that means he rules in favor of the agency in the case or controversy that is before him. That implies that he has interpreted the law in such a way that the facts, as found, indicate that the agency has acted lawfully. (And the judge traditionally explains why he has reached that conclusion, in his opinion.)

      That’s my “uphold.” But you’ve got a different one, obviously. What is it ?

      1. “That implies that he has interpreted the law in such a way that…”

        *cough* Chevron *cough*

        1. How’s your cough ? But seriously, your point is also too subtle for me.

          As I understand it (which may well be incorrectly) Chevron says no more than – if there are two or more possible interpretations which are plausible, give deference to the interpretation offered by the agency. So when a judge does that, he’s interpreting the law in accordance with the precedent telling him how to interpret the law when the law is ambiguous or vague. The judge is not supposed to defer to the agency’s interpretation if the meaning of the law is clear (or if the law is unclear but the agency’s interpretation is not a plausible one.) So whatever the weather the judge is still interpreting the law, and “upholding” the agency’s action if and when he rules in its favor.

          1. Incidentally I linked few days ago to a rather good speech by Judge Kethledge who was one of the losing horses in the SCOTUS nomination. He was making the point that Chevron is abused by lazy judges. (He said it a bit more politely than that.) The provision in question is often hidden in a thicket of complicated statutory language that takes a lot of time and effort to tease the meaning from. If the agency has come along and offered an interpretation that seems like it might fit, or close enough, the the judge can save himself the bother of hacking through the thicket and just go with the flow. But that’s not what the judge is supposed to do. He’s supposed to hack through the thicket and get to the meaning himself, however sweaty and tiring that may be. Only then, when he finally lays down his machete, and only if he finds that there is more than one plausible interpretation, should he fall back on Chevron.

          2. If a judge (or panel of same) applies Chevron deference, then they do not interpret the law. They accept the agency’s interpretation.

            This means that the existence of Chevron deference doctrine disproves a general rule that there is an implication that a judge (or panel of same) has interpreted the law in any manner. Rather, if Chevron deference was applied, the agency interpreted the rule, and the judge read the agency’s interpretation and said “sounds reasonable to me”, and there the inquiry ends.

            1. Well that depends on whether they are doing it properly or lazily. First there’s Step 1 – is the law ambiguous ? And then if it is, go to Step 2 – defer to the agecy’s interpretation if it’s reasonable. By “reasonable” – the judge accepts that it is one of the possible interpretations that is revealed by whatever interpretive method he thinks is permissible. So for example he accepts that the meaning of the law is ambiguous and it could mean A or B, but the agency has come up with C, then C doesn’t win under Chevron. The judge has to pick A or B using whatever tiebreaker his interpretive method allows. Kethledge commented thus :

              Although I personally have never had occasion to reach Chevron’s step two in any of my cases, there have been plenty of cases where the agency wanted us to.


              1. So applying Chevron deference, when it is applied in accordance with the Step 1 Step 2 twostep is a bit like applying precedent. When the judge does that he is not interpreting de novo, he’s taking the interpretion from a prior Court’s effort. But first he has to determine whether the precedent is applicable.

                Chevron is similar except that the judge first has to try and fail at arriving at a clear intepretation himself, and then determine that the agency’s effort is a possible interpretation. I’m not a fan of Chevron myself, but applied properly it’s hardly “the judge read the agency’s interpretation and says “sounds reasonable to me”, and there the inquiry ends.”

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