Justice Kavanaugh Warns Against Over-Reading Loper Bright Decision

The Court's decision to overturn Chevron should be seen as more of a "course correction" than a revolution.

Yesterday Justice Brett Kavanaugh spoke at Catholic University's Columbus School of Law as part of a program sponsored by the Center for the Constitution and the Catholic Intellectual Tradition. His remarks came in the form of an interview with Professor Joel Alicea.

As Bloomberg's Lydia Wheeler reports, the Justice had some interesting things to say about how to understand the Court's decision dispatching with Chevron deference in Loper Bright Enterprises. In particular, the Justice characterized the decision as "a course correction consistent with the separation of powers to make sure that the executive branch is acting within the authorization granted to it by Congress."

From the Bloomberg report:

"To be clear, don't over read Loper Bright," Kavanaugh said, while speaking at Catholic University of America Columbus School of Law in Washington on Thursday. "Oftentimes Congress will grant a broad authorization to an executive agency so it's really important, as a neutral umpire, to respect the line that Congress has drawn when it's granted broad authorization not to unduly hinder the executive branch when performing its congressional authorized functions, but at the same time not allowing the executive branch, as it could with Chevron in its toolkit, to go beyond the congressional authorization ."

This is consistent with my initial analysis of the decision.

In his remarks, Justice Kavanaugh seemed to confirm that the Court's majority was concerned about the increasing tendency of federal agencies to try and pour new wine out of old bottles and stretch pre-existing statutory authorizations into new areas. During the Bush Administration, Kavanaugh said "he saw firsthand how hard it is for presidents to get big legislation through Congress and the pressure there is on the agencies to 'push the envelope,' when it comes to regulating, which Chevron facilitated." In this regard, Loper Bright Enterprises can be seen as of a piece with the Court's major questions doctrine decisions that likewise seek to prevent agencies from exceeding the bounds of their delegated authority. (One might even say they combine to make something of a "delegation doctrine.")

Law.com also reported on Justice Kavanaugh's remarks.