Will Kavanaugh Curb Sloppy White House Deregulation?

Given President Trump’s concerns about the federal administrative state, his nomination of Judge Brett Kavanaugh to the Supreme Court is entirely fitting. For years, Judge Kavanaugh has toiled in the vineyards of administrative law, writing highly influential opinions on regulatory matters and demonstrating a willingness to discipline federal agencies when they go astray.

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.

Like President Trump’s other Supreme Court nominee, Neil Gorsuch, Judge Kavanaugh has expressed concerns about the Chevron doctrine, under which agencies’ interpretations of the statutes they administer may receive deference from courts. Judge Kavanaugh believes that some courts have taken this doctrine too far and that where agency actions implicate matters of great economic or political significance, courts should pause before assuming Congress has delegated agencies power of such broad scope. It was on this basis that Judge Kavanaugh questioned the Federal Communications Commission’s attempt to impose “net neutrality” through the Open Internet Order. Where “an agency wants to exercise expansive regulatory authority over some major social or regulatory activity,” he said, “an ambiguous grant of statutory authority is not enough.”

Photo: T.J. Kirkpatrick for The New York Times