Like Neil Gorsuch, the D.C. Circuit judge has criticized Chevron deference for encouraging executive arrogance.By Jacob Sullum
http://reason.com/blog/2018/07/09/scotus-contender-brett-kavanaugh-sees-thWhen Donald Trump picked Neil Gorsuch for the Supreme Court last year, one of the most frequently heard complaints concerned the nominee's resistance to the doctrine that a court applying an ambiguous statute should defer to any "reasonable" interpretation favored by the administrative agency charged with carrying it out. If Trump chooses Brett Kavanaugh to replace Anthony Kennedy, we are likely to hear similar criticism, because the D.C. Circuit judge also has expressed concern about the threat that so-called Chevron deference poses to the rule of law and the separation of powers.
"Chevron has been criticized for many reasons," Kavanaugh observed in a 2016 book review. "To begin with, it has no basis in the Administrative Procedure Act. So Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch. Moreover, the question of when to apply Chevron has become its own separate difficulty."
Drawing on his experience in the George W. Bush administration, Kavanaugh wrote that "Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints." While "it is no surprise that Presidents and agencies often will do whatever they can within existing statutes," he said, "that inherent aggressiveness is amped up significantly" by anticipation of Chevron deference. In fact, "executive branch agencies often think they can take a particular action unless it is clearly forbidden."
As a judge, Kavanaugh has tried to rein in that tendency by developing the "major questions" (a.k.a. "major rules") exception to the Chevron doctrine, which applies to agency decisions that have sweeping effects but are not clearly authorized. Last year he argued that the Federal Communications Commission's regulatory imposition of "net neutrality" clearly qualified for that exception . . . he concluded, "If the Supreme Court's major rules doctrine means what it says, then the net neutrality rule is unlawful because Congress has not clearly authorized the FCC to issue this major rule" . . .
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That can be construed to mean Kavanaugh opposes the executive branch and its administrative departments becoming lawmakers, and that is a
good thing. Especially if he believes concurrently that a judge must draw the line between interpreting and making law, too. There are reasons why the Constitution's order of battle begins with the
legislative branch, even as there are reasons it would be wise to find a way for Congress to stop fobbing its responsibilities off upon the executive branch and remember its job is to
legislate; or, perhaps, write repeals of those laws---they are several legions worth---that, as Mr. Bovard has phrased it, turn government into a public nuisance, though of course they are much disinclined to do so for assorted reasons.
But, on the live thread regarding the announcement of Kavanaugh's picking as Justice Kennedy's successor, there was this:
Steve Herman
â€Verified account @W7VOA
3m3 minutes ago
“Tomorrow I begin meeting with members of the senate,†says Kavanaugh. “I will tell each senator I revere the Constitution...If confirmed by the senate I will keep an open mind in every case.â€
. . . I will tell each senator I revere the Constitution...If confirmed by the senate I will keep an open mind in every case. (Emphasis added.)
One reads that and fears properly enough that, as has happened often enough in the past, a judge keeping "an open mind" might rule or vote
contra the Constitution should a case arise in which the Constitution stands athwart his or her particular preference or desired outcome. (Remember: construing the Constitution reasonably will
not always conform to the desires of the hour or the demands of the mob, whether "conservative," "liberal," "middle of the road," nor should it.) Mr. Kavanaugh's experience in the George W. Bush administration must surely include a front-row seat observing that administration's floutings of the Constitution; his experience as a DC circuit judge must surely have given him view enough of the subsequent constitutional floutings of His Excellency Al-Hashish Field Marshmallow Dr. Barack Obama Dada, COD, RIP, LSMFT, Would-Have-Been-Life President of the Republic Formerly Known as the United States. It would be wise for those charged with his confirmation to urge him to absolutely clarity on just how far open he would have his mind before it collides with the Supreme Law of the Land.
---EA.
