A Justice Kavanaugh Could Curtail the Federal Administrative State

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“I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing,” President Harry Truman once said. Indeed, the administrative state is often viewed as another branch of government — a branch increasingly out of control whether viewed from the perspective of the “deep state” or the self-serving bureaucracy.

The problem has a great deal to do with a 1984 Supreme Court decision titled Chevron v. NRDC, 467 U.S. 837 (1984). Chevron set the parameters by which federal courts must give deference to administrative agencies writing regulations to enforce congressionally enacted laws.

This creates a problem because the administrative state is part of the Executive Branch, but it is enacting rules and regulations that have the force of law. A person can go to jail for violating something that is not a law passed by Congress, but is a rule passed by an administrative body nobody elected. The Code of Federal Regulations (CFR), which is the compilation of all regulations issues by the Executive Branch, is around 200,000 pages. In just the first five years of the Obama Administration, the CFR grew by 17,522 pages (source), highlighting the propensity by which bureaucrats decided to regulate under Barack Obama.

In Chevron, the Supreme Court held that courts must defer to administrative agencies if Congress has not specifically legislated to the contrary.

If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron v. NRDC, 467 U.S. 837, 842-43 (1984) [Emphasis added].

This, however, leads to a problem within the administrative state. Does an agency have the power to regulate something? Can the Securities and Exchange Commission regulate the release of toxic waste because the act could harm shareholders of a company? Can the EPA regulate accounting standards of oil companies? And at what point have agencies gone too far?

In City of Arlington v. FCC, 569 U.S. __, 133 S.Ct. 1863 (2013), Justice Scalia sided with the Court’s liberals to give more deference to the administrative state than was deserved. It is one of the few times conservatives would want to be on Chief Justice Roberts’ side of an argument. Justice Scalia and the liberals held that if Congress gives the administrative state power to regulate, as long as it is within the scope of the legislation deference should be given. That may generalize too much, but the essential argument is that if Congress gives the Executive Branch authority to regulate and the Executive Branch regulates, it doesn’t matter which part of the administrative state issues the regulations unless Congress clearly limits it.

John Roberts argued that there are two questions the Court must resolve. First, it must determine if Congress has given the particular agency jurisdiction to issue regulations and then, if so, are those regulations reasonable. Roberts wrote, in his dissent,

The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty. And yet … the citizen confronting thousands of pages of regulations — promulgated by an agency directed by Congress to regulate, say, “in the public interest” — can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight — a critical part of the Constitutional plan — is always an effective safeguard against agency overreaching. It is against this background that we consider whether the authority of administrative agencies should be augmented even further, to include not only broad power to give definitive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.

That leads me to Brett Kavanaugh. Having already aligned with Neil Gorsuch on the issue of precedent, he also aligns with Gorsuch on the issue of Chevron. He thinks the administrative state has too much power. That puts them both closer to the camp of John Roberts on this issue, who thinks not only must the judiciary be restrained, but also the unaccountable federal administrative state must be restrained. In fact, Roberts used that Harry Truman quote I started with to make his point. Kavanaugh agrees.

Kavanaugh has shown himself to be a committed textualist across dozens of statutory interpretation cases. He is a fierce critic of Chevron deference to federal agencies. He has voted to invalidate high-stakes orders from virtually every federal agency, including the net neutrality rule passed by the FCC. On two separate occasions, his dissents finding sweeping EPA regulations beyond statutory limits were vindicated in 5-4 opinions by Justice Scalia.

Kavanaugh likewise denounced constitutional arguments in defense of Obamacare as “unprecedented,” lacking a “principled limit,” and an “expansion of congressional authorty,” and “a potentially significant infringement of individual liberty.” In City of Arlington v. FCC, Justice Scalia noted that “Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.” Kavanaugh believes that Congress must do a better job of speaking clearly and agencies should not have such expansive discretion when Congress does not.

The DC Circuit, where Kavanaugh sits, is the place to be for cases about the administrative state and we get a strong sense of where Kavanaugh comes down — consistently in favor of restraint by the administrative state with an unwillingness to let the administrative agencies declare power for themselves. He also strongly, strongly dislikes agencies hiding under nebulous legalese from Congress that can be deciphered in multiple ways. Kavanaugh’s default way of deciphering nebulous language is to go with that interpretation that is least likely to punish Americans.

Judge Kavanaugh dissented in a case involving Labor Department regulation of the whale shows at Sea World. Judge Kavanaugh would have held that the Labor Department lacked authority to regulate dangers to the participants in sports or entertainment events like these, absent new authority granted by Congress. SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014).

Judge Kavanaugh wrote for a unanimous DC Circuit Court panel and invalidated a major new IRS regulation that would have regulated tax preparers for the first time. Loving v. IRS, 742 F.3d 1014 (D.C. Cir. 2014).

In White Stallion Energy Center LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014), Judge Kavanaugh’s dissent argued that the EPA must consider costs before deciding whether to regulate power plant emissions of hazardous air pollutants. In a 5-4 decision authored by Justice Scalia, the Supreme Court agreed with and cited Judge Kavanaugh’s dissent, holding that the agency was required to consider costs. Michigan v. EPA, 135 S. Ct. 2699 (2015).

In another landmark EPA case, Coal. for Responsible Reg. v. EPA, 2012 WL 6621785 (D.C. Cir. 2012), Judge Kavanaugh’s dissent from denial of rehearing en banc explained at length how the EPA’s massively burdensome greenhouse gas regulations for the prevention of significant deterioration program were unlawful. Judge Kavanaugh explained that Congress needed to act in order to put forth regulations of the sort at issue in this case. In a 5-4 decision by Justice Scalia, the Supreme Court agreed with and cited Judge Kavanaugh’s opinion. Utility Air Regulatory Group v. EPA, 134 S. Ct 2427 (2014).

Time and time again, Kavanaugh has shown an absolute refusal to allow administrative agencies to impose fines and punitive measures on individuals and businesses without clear congressional authority. Time and time again, Kavanaugh has shown a reluctance to grant unfettered deference to agencies under Chevron. Time and time again, Kavanaugh has shown a willingness to roll back Chevron deference in order to force Congress to write more clearly and give agencies clearer guidelines on how to regulate.

This is a very good thing for the America people. Like John Roberts, Sam Alito, and Justice Kennedy, Brett Kavanaugh has shown a furious rage against the power of the administrative state to be able to fine and imprison American citizens through enactment of regulations when Congress itself has created no clear law in that area.

In short, Brett Kavanaugh believes the American bureaucracy has gotten so unwieldy and passes so many regulations on a daily basis, it is no longer plausible to maintain that ignorance of a law is no defense when these are not laws, but regulations and regulations that have no clear authority from Congress multiplying every day by a bureaucracy in need of justifying its own existence.

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Erick Erickson
By Erick Erickson

Erick Erickson

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