In July 2018, after Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court, the New Civil Liberties Alliance (NCLA), a public interest law firm with a focus on the administrative state, published an assessment of potential replacements for Kennedy based on how each of them approached questions about the administrative state.[1][2] In October 2018, Brett Kavanaugh was confirmed as Kennedy's replacement. What follows are NCLA's assessments of possible Kennedy replacements at the time of Kennedy's announcement.
Raymond Kethledge
The New Civil Liberties Alliance noted that Judge Raymond Kethledge would likely support rulings that pare back the powers of the administrative state.[1] Kethledge has been critical of Chevron deference, an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer:[1]
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Judge Kethledge gave a speech at his alma mater late last year detailing his skeptical views on Chevron deference, how judges handle ambiguous statutes, and the use of legislative history. Kethledge’s criticism of Chevron focuses on separation of powers concerns (not judicial bias), but he also details practical problems with judicial deference: agencies seek interpretations that support policy preferences, judges take the easy way out and find ambiguity instead of figuring out what a statute means, agencies cut corners and become sloppy when counting on deference, and they even distort relevant statutes in their presentations to courts “under cover of deference.” Kethledge reports he “never yet had occasion to find a statute ambiguous,” which certainly signals antipathy to employing Chevron deference.
Judge Kethledge does not support using legislative history to resolve ambiguity. As a former judiciary staffer for Sen. Spence Abraham, Kethledge knows that staffers write legislative history largely unsupervised—“like being a teenager at home while your parents are away for the weekend.” Staffers write for “an audience in robes,” whereas senators approve legislation, not what is in the legislative history (which many ignore). For Kethledge, “the idea that most statutes are badly written is a myth.” He believes the Office of Legislative Counsel has tremendous expertise in writing with clarity. Hence, Kethledge concludes, Scalia and Kagan “are rightly skeptical that legislative history should play some kind of central role in determining the rights and obligations of our citizens.”[3]
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Brett Kavanaugh
The New Civil Liberties Alliance noted that Judge Brett Kavanaugh would oppose attempts by administrative agencies to consolidate legislative, executive and judicial powers into the same hands.[1] Kavanaugh has raised concerns about potential conflicts between the operations of the administrative state and the principle of separation of powers:[1]
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Judge Kavanaugh has expressed grave concerns regarding bureaucratic overreach because independent agencies can (and often do) undermine the Constitution’s vital separation of powers. In his 12 years sitting on the D.C. Circuit Court of Appeals, Kavanaugh has developed a consistent, albeit nuanced, approach to adjudicating matters related to the administrative state. Kavanaugh believes agencies cannot regulate outside the boundaries of their statutory authority under any circumstance. Independent agencies pose significant constitutional challenges—Judge Kavanaugh has described them as a “headless fourth branch of the U.S. Government.” Kavanaugh has warned that since independent agencies exercise “massive power [in] the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of checks and balances.” Courts should be wary of regulation adopted by independent agencies because there is a problem of accountability, given the President’s inability to supervise their activities. Kavanaugh has suggested that the judiciary is at least partly to blame for the growing concentration of power in independent agencies. Courts have served as enablers to Congress’ unconstitutional transfer of its legislative authority to the executive branch.[3]
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Kavanaugh has a record of examining the practice of Chevron deference:[1]
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Judge Kavanaugh notes that “ambiguity-dependent canons” such as Chevron raise particular concern because “the doctrine is so indeterminate—and thus can be antithetical to the neutral, impartial rule of law—because of the initial clarity versus ambiguity decision.” He has also expressed concern with Chevron because the doctrine “has no basis in the Administrative Procedure Act.” Because Chevron is “an atextual invention by courts,” Kavanaugh asserts that Chevron deference “is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”
Moreover, Judge Kavanaugh’s experience in the White House has led him to observe additional practical political problems with Chevron. Chevron encourages the Executive Branch—regardless of the person or party in control—to be “extremely aggressive” in trying to advance policy through agency action. Kavanaugh sees the Supreme Court’s King v. Burwell decision as a limitation on Chevron’s deference regime though, removing from its ambit the class of cases that pose “question[s] of deep economic and political significance.” To Kavanaugh, Burwell begs the question: if the major rules doctrine requires a court not to apply Chevron, why should Chevron apply to cases involving less major questions? [...]
Judge Kavanaugh has not been a crusader looking for an excuse to overturn Chevron on the D.C. Circuit. In fact, he has said that applying “Chevron makes a lot of sense in certain circumstances.” Kavanaugh believes that when “Congress delegates the decision to an executive branch agency that makes the policy decision … that the courts should stay out of it for the most part.” His principal concern with Chevron is not that courts should never defer to agencies, it is that the doctrine is often incorrectly applied to defer to agencies in circumstances that have little to do with the reasonableness of agencies’ expressly delegated policy decisions.[3]
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Amy Coney Barrett
When the New Civil Liberties Alliance reviewed the record of Judge Amy Coney Barrett, it concluded that she "has not authored significant judicial opinions or publications directly on administrative law or the various deference doctrines."[1]
However, the NCLA quotes from the abstract of an article written by Barrett for the Cornell Law Review that seems to support the nondelegation doctrine, an administrative law that holds that Congress cannot delegate its legislative powers to executive agencies or private entities:[1]
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Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the President, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all these prior statutes are constitutional, Congress could today enact a law authorizing the President to suspend the writ in Guantanamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the President some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power.[3]
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Thomas Hardiman
According to the New Civil Liberties Alliance, Judge Thomas Hardiman's record of fifteen years as a judge contained limited evidence to make an assessment concerning administrative power.[1]
After Justice Neil Gorsuch joined the U.S. Supreme Court, Hardiman challenged deference to guidance documents, non-legally binding documents created by government agencies to explain, interpret, or advise interested parties about rules, laws, and procedures:[1]
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In Duquesne Light Holdings, Inc., v. Comm’r, Hardiman wrote a dissenting opinion strongly critical of the majority’s deference to the Internal Revenue Service’s interpretation in an informal guidance document. Hardiman wrote that the guidance document improperly “alter[ed] the plain meaning” of relevant regulations and permitted the agency “to create de facto a new regulation through the back door.” More fundamentally, Hardiman asked “what authority was the [agency] interpreting to support its view[?],” because established doctrine did not seem to support deference in that case. Hardiman closed by saying: “I am aware of no caselaw that demands (or permits) a court to give such deference to an agency’s position regarding the status or strength of judicial precedent. Nor do I see any principled reason to do so. After all, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’”
(quoting Marbury v. Madison).[3]
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Amul Thapar
The New Civil Liberties Alliance concluded that Judge Amul Thapar likely believes that current applications of Chevron deference weaken the separation of powers as established by the Constitution. While Thapar applied Chevron deference to agencies in cases where he found that statutory language was ambiguous, other rulings suggest that he would not expand the doctrine.[1]
Examining Thapar's judicial record, the NCLA said:[1]
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Crediting Justice Scalia’s legacy, Judge Thapar maintains that “we’re all textualists now.” Moreover, “[t]he governing text and precedent are the common threads constraining federal judges across the United States to treat like cases alike—no matter the judges’ divergent conceptions of the common good.” Thus, in Thapar’s view, textualism and stare decisis go hand in hand as the foundational principles of the American legal system, ensuring the intelligible, efficient, and uniform adjudication of what the law is. Judge Thapar has explained that the truly pragmatic judge is one whose rulings flow naturally from the governing legal text, the precedents reasonably interpreting that text, and the record of the case in a way that is predictable beforehand and ascertainable thereafter.
On the occasions Judge Thapar has adjudicated administrative law-related cases, he has consistently applied this textual approach within the context of controlling precedent. For instance, where a federal bond hearing statute contained ambiguous language, Thapar employed the Chevron doctrine and deferred to the agency’s interpretation of the statute because he was convinced that the interpretation was reasonable.
In a recent law review article, Judge Thapar has also argued directly that “deference to the administrative state” both “disserves litigants” through undermining “stability [and] predictability” in the law, and “sacrifices the legitimacy courts claim from publicly showing their work.” For his latter legitimacy argument, Thapar cites NCLA’s own Professor Hamburger.
Thus, although Judge Thapar has applied Chevron deference in the past, or at least demonstrated a willingness to apply Chevron under the prudentially appropriate circumstances, footnote 5 in his Hicks opinion and Thapar’s academic writing suggest that, were he freed from the bounds of controlling precedent in his jurisdiction, Thapar might be inclined to constrain federal courts’ deference to agency rules and interpretations.[3]
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Joan Larsen
The New Civil Liberties Alliance wrote that Judge Joan Larsen has said things that might indicate opposition to administrative power, but that "her sparse academic and judicial record on these topics makes it impossible to predict her likely future stance with any degree of certainty."[1]
According to its assessment, though Larsen has taught legislation and regulation courses at the University of Michigan Law School, her lack of an established judicial record made it difficult to determine her potential stance of administrative power:[1]
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Judge Larsen presumably has well-developed views on the administrative state, but she does not have a well-established judicial record on those topics. Nor does her scholarship reveal much aside from a general disposition to respect legislative outcomes. For instance, she has written about a “divide in contemporary constitutional law between liberals’ impulse to constitutionalize—and therefore ‘judicialize’—every important question and conservatives’ impulse to leave every question to ordinary politics.”[3]
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See also
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