Opinion | Will Kavanaugh Curb Sloppy White House Deregulation?
For the past 12 years, Judge Kavanaugh has sat on the United States Court of Appeals for the District of Columbia Circuit. That court (where I once clerked) hears many legal challenges to major federal regulations. As a consequence, it is the arguably the most influential court on matters of administrative law, and judges there are fed a steady diet of these often complex and demanding cases. Of Judge Kavanaugh’s nearly 300 opinions as a federal judge, over one-third concern administrative law — and they are quite revealing.
Judge Kavanaugh’s opinions in these cases show someone who takes administrative law principles to heart. Federal regulatory agencies are not provided for in the Constitution. Instead, agencies get their power from Congress. Statutes authorize agencies to promulgate and enforce regulatory measures and detail the steps agencies must follow when adopting rules. For an agency action to be lawful, it must be done in line with an act of Congress and in accordance with the Administrative Procedure Act and other rules of administrative law. As Judge Kavanaugh explained in one opinion, “policy is for Congress and the president to establish as they see fit in enacting statutes,” adding that the judiciary’s “more modest task” is to ensure that “agencies comply with the law as it has been set by Congress.”
In conducting judicial review, Judge Kavanaugh does not grade on a curve. As much as any District of Columbia Circuit judge, he questions whether federal agencies have followed the relevant requirements and acted within the scope of their delegated authority. Where agencies come up short, he is not one to give them a pass.
Judge Kavanaugh’s concerns about the regulatory state echo those voiced by Chief Justice John Roberts and the justice whom Mr. Kavanaugh would replace. In one of his last opinions on the court, Justice Anthony Kennedy noted his concern with the “reflexive deference exhibited” by lower courts under the Chevron doctrine. The “cursory analysis” engaged in by some lower courts “suggests an abdication of the judiciary’s proper role in interpreting federal statutes.” Justice Kennedy further noted “troubling” aspects of the Supreme Court’s own decisions applying Chevron and suggested it was necessary and appropriate to reconsider “the premises that underlie Chevron and how courts have implemented that decision.”
Judge Kavanaugh’s concern about overbroad applications of Chevron should not be misinterpreted as hostility to regulation. As shown in a forthcoming study of how Chevron is applied on lower courts, Judge Kavanaugh is quite evenhanded, applying the same approach whether evaluating agency actions that could be characterized as liberal or conservative. Judge Kavanaugh has written opinions critiquing expansive regulations, such as those issued by the Environmental Protection Agency; he has also upheld controversial E.P.A. actions and found merit in environmental group challenges to the agency’s failure to follow Congress’s instructions.
As Judge Kavanaugh explained in a case concerning the controversial Yucca Mountain nuclear waste repository, “the president may not decline to follow a statutory mandate or prohibition simply because of policy objections.” Accordingly, the Trump administration should not expect a Justice Kavanaugh to give its deregulatory initiatives an easy pass if the federal agencies in question do not do the work to demonstrate they are fulfilling their statutory and other legal obligations.
As a justice, Brett Kavanaugh would likely have a significant influence on matters of administrative law. His opinions already influence — and have been vindicated by — the Supreme Court. After he dissented in cases challenging E.P.A. regulations limiting mercury and greenhouse gas emissions, the Supreme Court granted certiorari and overturned the District of Columbia Circuit in favor of Judge Kavanaugh’s analyses in both cases. The same happened when the Free Enterprise Fund challenged the constitutionality of rules governing the Public Company Accounting Oversight Board. The District of Columbia Circuit’s panel majority upheld limiting the removal of board members. Judge Kavanaugh dissented, and a majority of the Supreme Court adopted his view.
In Brett Kavanaugh, President Trump may not have found a justice to “deconstruct the administrative state” — in Steve Bannon’s formulation — but he has found one who will help bring it to heel.
Jonathan H. Adler is a professor of law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law and the editor of “Business and the Roberts Court.”
Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter.