On July 9, President Trump nominated widely respected D.C. Circuit Judge Brett Kavanaugh to the U.S. Supreme Court. The attacks from the Democrats were as quick as they were predictable. But, in addition to the standard litany of Roe v. Wade hyperventilation and the predictions that Jim Crow is returning, a new line of argument soon developed. Democratic Leader Chuck Schumer said that Judge Kavanaugh believed in broad presidential authority that was “just off the deep end,” and that Senate Democrats would make this a major issue in their opposition to his confirmation.
While the Democrats may indeed use this a line of attack, it appears more likely that the opposite is true. In fact, belief in the broad power of the executive is more deeply rooted in the legislative and judicial branches, who have helped create it, than it is in Kavanaugh.
What Kavanaugh has demonstrated is that he is a textualist with a deep respect for the U.S. Constitution’s separation of powers as the best protection of our liberty. The best example of this is Kavanaugh’s writings on how much deference the courts should grant to the executive branch agencies or, as they have come to be called, the administrative state.
The administrative state has always been an uncomfortable fit in the American system of separated powers. Beginning in earnest in the 1930s, Congress created a broad array of executive agencies and delegated both legislative and judicial powers to them. But, even at its inception, President Franklin Roosevelt’s Commission on Administrative Management referred to the independent agencies as a “headless fourth branch of government” whose lack of accountability presented “a serious immediate problem.” In the intervening years, Congress has continued to delegate broad swaths of its legislative powers to an exponentially increasing executive branch, all the while complaining that the president is becoming too powerful.
The Supreme Court has continually added to the problem by showing great deference to the executive branch agencies in their interpretations of the law. The linchpin of the court’s deference is known as “Chevron deference,” named after the Supreme Court’s 1984 decision in Chevron v. NRDC, which also became a flashpoint in Justice Neil Gorsuch’s confirmation.
Under Chevron, unless Congress has unambiguously spoken on a topic, the courts must defer to an agency’s reasonable interpretation of the law. The courts must defer to the agency even if the court would have reached a different conclusion; the courts must also defer even if the agency has 100 percent changed its position; and finally, the courts must defer even if the agency is deciding the scope of its own power. The court’s Chevron doctrine is very accommodative to expansive executive power.
This is the yardstick by which Kavanaugh should be measured. Rather than continue the judiciary’s obeisance to the executive branch, Kavanaugh questioned Chevron’s basis and the way in which the court applies it in a Harvard Law Review article that is sure to be scrutinized in his confirmation hearing.
First, Kavanaugh notes that Chevron deference is an “atextual invention by the courts” that has no basis in the text of the Constitution or in the Administrative Procedures Act (the 1946 law Congress passed to govern the processes through which agencies promulgate regulations and adjudicate conflicts). Kavanaugh argues Chevron seems to mock the language of the APA, which makes clear that the “reviewing court” — not the agency — “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”
Second, Kavanaugh notes that Chevron encourages the executive branch, regardless of which party controls it, to be “extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations.” Kavanaugh argues that today’s partisan gridlock encourages the president to stretch his authority to attain his policy goals through agency regulations, since it is so difficult to get his agenda enacted by Congress and that “with Chevron in the mix, that inherent aggressiveness is amped up significantly.”
Finally, and most importantly, Kavanaugh concludes that “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the executive branch.”
Given Kavanaugh’s skepticism about the how the courts have enabled the expansion of the executive branch’s power through Chevron, it is hard to imagine this new line of attack will carry Schumer and his colleagues very far. In fact, after spending his entire career ceding more and more of Congress’ legislative power to the executive branch, it’s hard not to conclude that Schumer is projecting his own error onto Kavanaugh’s character.
Contrary to Schumer’s assertion, a Justice Kavanaugh would seek to restore an independent judiciary as the crown jewel of our constitutional republic. Would that Schumer were to do the same for the legislative branch.
Patrick Purtill is director of legislative affairs for the Faith & Freedom Coalition.
