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Committed to the Constitution

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Committed to the Constitution

Judge Brett Kavanaugh has long done battle with the administrative state and illegitimate regulatory authority. July 10, 2018
Politics and law

Few, if any, conceivable Supreme Court nominees are as well prepared for the role as Judge Brett Kavanaugh, whom President Trump nominated yesterday to replace the retiring Anthony Kennedy. Kavanaugh has served for the last 12 years as a judge on the D.C. Circuit Court of Appeals, amassing an extensive track record, including hundreds of published opinions. He regularly lectures at Harvard Law School, and was hired there by then-dean Elena Kagan, President Obama’s second appointee to the Court. His opinions, both in majority and dissent, have often been vindicated on appeal, and his reasoning has influenced multiple Court decisions. He has sent more law clerks to Supreme Court justices (eight of the nine, excepting only Ruth Bader Ginsburg) than any other active, Republican-appointed judge on the federal bench.

Kavanaugh shares much in common with the president’s first Supreme Court nominee, Neil Gorsuch: each attended Georgetown Prep, a Jesuit high school in North Bethesda, Maryland, with Kavanaugh graduating in 1983 and Gorsuch in 1985; and the two clerked together as young men for Justice Kennedy. The two are also notably skeptical of the constitutional underpinnings of the sprawling administrative state, which the federal judiciary has largely enabled.

In announcing the appointment, the often combative Trump struck a somber tone—observing that picking life-tenured justices for the high court is among a president’s most significant duties, second only to matters of war and peace. He graciously praised Kennedy for a lifetime of service and acknowledged Maureen Scalia, the late justice’s widow, and Ed Meese, the former attorney general who had managed the early judicial-nomination process for President Ronald Reagan. At Meese’s right hand sat Don McGahn, the White House Counsel who has ably filled the same role for President Trump.

Kavanaugh performed a similar vetting function for judges in the early years of the George W. Bush administration, where he served as the president’s senior associate counsel and staff secretary. In that role, he also oversaw the White House’s legal-reform initiatives in Congress. (In 2003, Manhattan Institute president Larry Mone and I met with Kavanaugh to discuss class-action reform—a major focus of MI’s legal-policy work—as the Bush White House advanced what became the most significant federal tort-reform law in the modern era, the 2005 Class Action Fairness Act.)

In accepting the president’s nomination, Kavanaugh struck a personal note, acknowledging his parents—themselves lawyers, his mother a prosecutor and judge—as well as his wife and daughters. But he also sketched out his judicial philosophy: “A judge must be independent and must interpret the law, not make the law.” Notably, Kavanaugh emphasized that he teaches his law students “that the Constitution’s separation of powers protects individual liberty.” His opinions over a dozen years on the bench, as well as his speeches and writings, show a striking commitment to this principle. In handling multiple cases challenging the rulemaking and regulatory practices of the alphabet soup of government agencies—a staple of the D.C. Circuit’s docket—Kavanaugh has pushed back when these agencies have overstepped the bounds of laws enacted by Congress, and he has resisted congressional attempts to interfere with authority constitutionally vested with the elected president.

In 2012, the D.C. Circuit considered a decision by the Obama administration’s Environmental Protection Agency to stretch the statutory language of the 1970 Clean Air Act to require permitting for “stationary-source” emitters of greenhouse gases. Kavanaugh dissented from the court’s ruling not to reconsider a panel decision upholding the regulation (Coalition for Responsible Regulation v. EPA). Noting that the court’s role “is not to make the policy choices or to strike the balance between economic and environmental interests,” Kavanaugh found the statute to be “reasonably straightforward” and the EPA’s reading to be “absurd”—a position ultimately vindicated at the Supreme Court, in an opinion authored by Justice Scalia that favorably cited Kavanaugh’s dissent (Utility Air Regulatory Group v. EPA).

When statutory language is ambiguous rather than straightforward, the Supreme Court has long deferred to administrative agencies’ interpretations of their operative statutes (Chevron v. Natural Resources Defense Council). Some of the conservative justices have recently questioned that deference, including Justice Clarence Thomas (Michigan v. EPA) and, from his former seat on the Court of Appeals, Justice Gorsuch (Gutierrez-Brizuela v. Lynch). Thomas pointedly observed that “we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency ‘interpretations’ of federal statutes.”

Though Kavanaugh hasn’t publicly said that the Supreme Court should reconsider Chevron, he did articulate key criticisms of the doctrine in a 2016 book review published in the Harvard Law Review. Kavanaugh observed that the Chevron doctrine “has no basis in the Administrative Procedure Act” and, indeed, “[i]n many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” And drawing upon his own White House experience, he opined: “from my more than five years of experience at the White House, I can confidently say 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.”

On the bench, Kavanaugh has embraced a vigorous application of the doctrine requiring clear congressional enactments, not agency determinations, on questions of deep economic and political significance. Last year, he dissented from the full D.C. Circuit’s decision not to rehear a panel decision upholding a controversial Obama administration agency regulation (United States Telecom Association v. FCC)—in this case, the Federal Communications Commission’s 2015 Open Internet Order, commonly called its “net neutrality” rule. As Kavanaugh explained, “Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common carrier obligations on Internet service providers.” Thus, Kavanaugh opined that the FCC order was unconstitutional under the “major rules” doctrine, which “helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority.” (The Trump administration’s FCC has subsequently repealed net neutrality.)

Kavanaugh has also shown a willingness to resist Congress when it vests such agencies with powers that evade control by the president. In 2008, he dissented from a decision upholding the constitutionality of the Public Company Accounting Oversight Board, a creation of the 2002 Sarbanes-Oxley Act enacted in the wake of the Enron collapse (Free Enterprise Fund v. PCAOB). In Kavanaugh’s view, for Congress to create an independent board, itself appointed by another independent board (the Securities and Exchange Commission), was too far removed from presidential oversight to be permitted under separation-of-powers principles. The Supreme Court later reversed the D.C. Circuit decision. In his opinion, Chief Justice John Roberts favorably cited Kavanaugh’s dissent.

In a case earlier this year, Kavanaugh dissented from the D.C. Circuit’s opinion upholding the constitutionality of the Consumer Financial Protection Bureau, a creation of the Dodd-Frank Consumer Protection and Wall Street Reform Act of 2010 enacted in the wake of the financial crisis (PHH Corporation v. CFPB). Again, he viewed Congress as overstepping its bounds in creating an agency vesting authority in a single director unanswerable to the president; in a footnote, he even questioned the constitutional foundations of the Supreme Court’s New Deal–era decision in Humphrey’s Executor v. United States, the legal precedent that made possible administrative agencies independent of presidential oversight.

Kavanaugh’s concerns about executive prerogative as an important separation-of-powers principle are doubtless informed by his time in the White House. In a 2009 article in the Minnesota Law Review, Judge Kavanaugh articulated his view of separation of powers. Describing his three years serving as President Bush’s staff secretary, he observed that most people “grossly underestimate how hard the job [of president] is.” He had reconsidered his earlier view about the wisdom of allowing civil lawsuits and criminal prosecutions to proceed against a sitting president while in office:

Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.

Democrats seeking to block Kavanaugh’s nomination have already seized on this article—with Senate minority leader Chuck Schumer claiming that Trump selected Kavanaugh because “he’s worried that Mr. Mueller will go to the court and ask that the president be subpoenaed.” But such a position overreads Kavanaugh’s position; in his law review article, he merely suggests that Congress should enact a law abating civil lawsuits and criminal prosecutions during a president’s time in office, not that such abatements are constitutionally required. And it’s hard to dispute Kavanaugh’s core concern that it is unwise to permit any objecting plaintiffs’ lawyer or local prosecutor—rather than the elected legislative branch, constitutionally granted impeachment power—to obstruct the functioning of the elected chief executive.

But with Democrats still smarting from the Republican Senate’s decision not to act on President Obama’s late-term nomination of Judge Merrick Garland to the Supreme Court, Schumer and his progressive allies are likely to adopt any rhetoric they can to scuttle the Kavanaugh nomination. These tactics are hardly new; in the modern era, they date to 1987, when Democrats went to extraordinary lengths to block the appointment of the late Robert Bork to the Court. Judge Kavanaugh is now primed to fill the seat that would have been Bork’s—and with the GOP in control of the Senate, there is no reason to expect that he will not do so, absent some undisclosed revelation. With Gorsuch and other conservative colleagues, Kavanaugh is likely to embrace long-dormant constitutional principles that rein in the administrative state and return more power to elected leaders. Somewhere, Judge Bork will be smiling.

Photo by Chip Somodevilla/Getty Images

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