Kavanaugh’s administrative law opinions should be given due deference 

The power of the administrative state and the Chevron doctrine that enables it loom over the battle to confirm Supreme Court nominee Brett Kavanaugh. His views on the doctrine will undoubtedly be one of the major prongs of Senate Democrats’ attacks during his upcoming hearings.

The Chevron doctrine, originating in the 1984 Supreme Court ruling Chevron v. Natural Resources Defense Council, provides that courts must defer to a federal agency’s interpretation of a statute when its language is ambiguous. The doctrine allows administrative agencies to hide under the cover of statutory ambiguity to broaden the scope of their own authority and expand their regulatory reach.

{mosads}The Chevron doctrine and the larger problem of an expanding administrative state grow out of the assumption of administrative independence born of the New Deal, combined with a judiciary prone to deference. Particularly problematic are the “independent agencies” that have become unaccountable, upsetting the balance between the three branches in our constitutional scheme.

During his 12 years as a federal judge on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh has heard 2,700 cases in what is arguably the most important court for administrative law. Of the 307 opinionsKavanaugh has written, 122 reviewed agency decisions.

In the swirl of partisan rhetoric surrounding the confirmation hearings, it may come as a surprise to learn that Judge Kavanaugh has authored four times as many opinions in cases involving executive agencies than civil liberties, unions, and voting rights combined.   

Throughout his administrative law opinions, Judge Kavanaugh has decried blind deference to executive agency bureaucrats as an abdication of judicial duty and a violation of the constitutional separation of powers. Kavanaugh’s response to the Senate Judiciary Committee’s question about which of his cases he considers most significant underscores the importance of the issue of agency deference. Two of the cases he included, Free Enterprise Fund v. PCAOB (2008) and PHH Corp. v. CFPB (2018), involved unaccountable independent agencies.

Free Enterprise Fund involved the Sarbanes-Oxley Act, which created the Public Company Accounting Oversight Board (PCAOB) within the existing structure of the Securities and Exchange Commission (SEC). According to the Act, the Board’s members were only removable “for cause” by the SEC, whose members, in turn, were only removable “for cause” by the president.

Dissenting from the D.C. Circuit’s ruling, Judge Kavanaugh concluded that provisions of the Sarbanes-Oxley Act insulating the PCAOB from the executive branch through a double for-cause removal structure violated the President’s Article II authority to supervise the executive branch. The structure had essentially created a regulatory Russian nesting doll. Kavanaugh wrote that “the Act renders this Executive Branch agency unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure.”

Those in opposition to Kavanaugh’s confirmation have pointed to this case as evidence that he will expand President Trump’s power under the unitary executive theory. However, the focus of his opinion was on Congress:

This was not inadvertent; Members of Congress designed the PCAOB to have “massive power, unchecked power.” Our constitutional structure is premised, however, on the notion that such unaccountable power is inconsistent with individual liberty.

In other words, individual liberty is undermined when the branch closest to the people abdicates the legislative function by creating an independent agency as an easy alternative to writing nuanced policy.

The Supreme Court ultimately agreed with Judge Kavanaugh’s dissent and reversed the D.C. Circuit.

Notably, in this dissent, Kavanaugh warned that “upholding the PCAOB here would green-light Congress to create a host of similar entities.” However, Congress is not easily dissuaded from innovative substitutes for legislation. Two years later, it created the Consumer Financial Protection Bureau (CFPB) through the Dodd-Frank Act. 

Dispensing with the typical multi-member structure that allows leaders of an independent agency to deliberate, the immense power of the CFPB is concentrated in a single director at the top who can only be removed for cause by the President. Dodd-Frank further removed the CFPB from Congressional review by giving it independent funding through the Federal Reserve rather than through the traditional process of Congressional appropriations.

Dissenting again from the D.C. Circuit’s holding in PHH Corp. v. CFPB (2018), Judge Kavanaugh found that this structure violates the separation of powers, noting that independent agencies “pose a significant threat to individual liberty and to the constitutional system of separation of powers.” Recently, a district court in New York relied on Kavanaugh’s argument in deciding a separate challenge to the CFPB.  

Rather than advocating for expanded presidential power, Judge Kavanaugh has consistently stressed the importance of the three-part separation of powers envisioned by the founding fathers. That separation most certainly does not allow a regulatory behemoth that is insulated from Congressional oversight, judicial review, and executive authority.

During Judge Kavanaugh’s upcoming hearings, Senate Democrats will try to portray him as a judge who will discard the Chevron doctrine, expand President Trump’s power, and side with big businesses over regulatory agencies and average Americans. They might use PHH Corp. and Free Enterprise Fund as part of their attack. But that will require a lot of obfuscation and avoidance of any principled discussion of the doctrine and these two cases. It will also be a smokescreen for their easy substitute for clear legislation.

Ashley Baker is the director of public policy at the Committee for Justice, a nonprofit group that seeks to uphold the Constitution and support constitutionalist judges.