A Justice Kavanaugh Could Curtail the Federal Administrative State

Kavanaugh's jurisprudence on the administrative state puts him to the right of Scalia.

“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.

Comments
No. 1-8
Jules*
Jules*

BTW, I got a kick out of your comment on restrictions on font size. You are something of a cynic, aren't you? I like that.

Running for office? A couple of the resident trolls are convinced I am a Russian agent (though young and inspiring some pretty intense fantasizing) so that might not fly.

Jules*
Jules*

@alex Wilson, I have heard similar concerns about my idea of making the oath of office binding. I can see that this would be open to abuse, at least in the early stages. It would have to be pretty specific. A great example is the oath promising to uphold the law, entered into by sheriffs and mayors and governors who then openly flout the law in their creation of sanctuary cities and states and refusals to cooperate with law enforcement. Those are pretty blatant violations of the oath.

I know of an instance where a judge, hearing a civil suit, entered into a ruling on a motion a paragraph stating that a party to the suit had committed a specific act, which is a felony. This was a blatant violation of every guarantee of due process. The person in question was never told who had made the accusation or given an opportunity to defend himself. While no punishment was attached, this statement of having committed a felony was part of a formal legal ruling, and later used to prejudice a different judge who took over when the original judge retired, who improperly allowed the false accusation to be entered into testimony though it was unrelated to the case, which prejudiced the jury. The first judge was never held accountable for this violation of civil rights, the second judge refused to rule against what the first judge had said, and a later effort to get this removed from the record was denied by the federal court on the grounds that the claim of violation of civil rights was not supported by adequate documentation, though the total lack of documentation formed the basis of the violation. A panel outside the sphere of influence of these judges in a small community would have instantly seen that the first judge acted improperly and that there was no due process at all. Simply knowing there was a panel in place to examine what happened, and knowing that there would be accountability if wrongdoing was verified, would have had a chilling effect on this runaway sequential abuse of power.

It might not be a perfect solution to judicial malfeasance and abuse of power, but the stories of judicial abuses are legion, and many of them simply involve things like ignoring the laws to impose personal opinions, the example I gave earlier of violating the most basic concept of contract law, etc. You might be surprised at the volume and extent of judicial misconduct----and it happens because there are no oversights short of finding someone in the legal community willing to commit professional suicide by going up against a judge.

Alex Wilson
Alex Wilson

@Jules*

So when are you running for office?

I do have a couple addendums though.

On point #2, I would specify the font and font size that bills have to be written in, otherwise they'll just make the writing microscopic. I'm also not sure it would be feasible to apply this to budget resolutions. While doing so could reduce the size and scope of the Federal government, I think it's more likely that it would just result in more power being transferred to the executive branch by giving them more discretion in how large general purpose appropriations to each department/agency are spent.

On Point #4, I agree with the sentiment, but I'm not sure how it could be enacted in a way that doesn't turn into a political witch hunt targeting whichever party isn't currently in control of whatever court, agency, or legislature is charged with enforcing it.

Alex Wilson
Alex Wilson

@BenjaminD

I have no doubt that it's what congress wants, but I would argue that deferring the ability to write rules and regulations to executive agencies is unconstitutional, especially if they don't have a sunset provision. It removes a check and balance by taking lawmaking power away from the body the constitution invests it in and places it with a body unaccountable to voters. A law giving an agency power to regulate an area that was passed 30 years ago can lead to changes in the law today, even though many of today's voters never had the opportunity to vote for the legislature and president that approved the law giving them that authority. Further a regulation that is passed requires a majority vote in both houses and either presidential approval or the overriding of a presidential veto to invalidate, while a law making it's way through congress can be killed by a simple majority in either house or by a presidential veto.

Jules*
Jules*

I don't think Congress can "give" power to the Executive Branch. But clearly Congress has been taking the easy way out, just turning over authority to a bunch of unelected political appointees and then letting the judicial system try to sort out the mess.

I think Congress should (1) have term limits (2) be restricted in its legislative powers by ruling that no bill can be longer than ten pages, must be written by its sponsor, address only one issue and create only one law, and be read by everyone voting for or against it. (Obamacare was written by the SEIU, presented to the Dems in Congress to approve, and every person who voted for it admitted he or she had not read it before voting for it.) (3) be required to at the very least review any rule or regulation requested by any agency before it can become binding on the people, and (4) be bound by the terms of their oaths of office, meaning that if they, in the execution of their jobs in Congress, do not uphold the Constitution or the law they simply lose their positions and their benefits.

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