He’s up for a seat on our highest court. Here's what you need to know about Brett Kavanaugh. USA TODAY
Democrats and Republicans alike should welcome Brett Kavanaugh's focus on the roles of Congress, the public and federal agencies in our democracy.
Since Judge Brett Kavanaugh’s nomination to the Supreme Court, we’ve learned he has a strong interest in administrative law. As well he should — his current court, the D.C. Circuit, is the nation’s preeminent court for administrative law cases.
Why should we care about administrative law? And does Kavanaugh's interest in the subject mark him as liberal or conservative?
Administrative law governs the government: The procedures the government must follow, the opportunity it must give the public to speak and be heard when new laws are being written, and the weight that courts must give to federal agencies' decisions — these are essential questions of administrative law.
That is why administrative law is so important: It goes to the heart of our democratic system of government. Important “ad law” cases often concern the public’s ability to provide meaningful input on new rules and the advance notice the public gets before it must comply with a new legal requirement or be subject to penalty for not obeying it.
Administrative law is nonpartisan
Ultimately, administrative law goes to the respective roles played by our elected representatives in Congress and the legions of officials in federal agencies. It concerns the extent to which those unelected agency officials, not senators and congressmen, will write the rules we must live by.
These are profound issues — and they are nonpartisan. In fact, one of the main lessons of administrative law is this: What goes around comes around. A legal argument used in court to topple an Obama administration rule establishes a legal precedent that can be used to stop a Trump administration rule. I learned this in one of the first administrative law cases I handled as a young lawyer: some of my best case authorities for challenging a Clinton administration rule were decisions written by D.C. Circuit judges appointed by Democratic presidents.
The nonpartisan nature of administrative law is reflected in the principle known as “Chevron deference,” which Kavanaugh has expressed reservations about. Named after a 1984 Supreme Court decision, Chevron deference means that if Congress enacts a statute authorizing a federal agency to regulate in a certain area, and the statute does not clearly address a particular question about the agency's regulatory mandate, then courts should defer to — that is, accept — the agency's interpretation of the statute, as long as it’s a reasonable one.
In short, Chevron is a tie-breaker that favors the government. And it shifts to agencies roles that otherwise could be performed by Congress and the courts.
Is the Chevron rule liberal or conservative? Justice Antonin Scalia, my late father, was its foremost proponent for decades, though he began to express reservations in his last years. His successor, Justice Neil Gorsuch, has been a Chevron critic (arguably more so than Kavanaugh).
Or consider this: The Trump administration adopts a new rule, which liberal groups race to court to challenge. In many instances, Chevron deference would be among the Trump lawyers’ most potent arguments, just as it was in the Obama administration. Appointing justices who dislike Chevron deference would make it harder for President Donald Trump to defend his regulations in court.
A concern for Democrats as well as Republicans
Because in ad law what goes around comes around, there are countless other examples of cases and issues that favor no party or ideology. Did President Barack Obama violate the Constitution in 2012 when he appointed three new members of the National Labor Relations Board during what he claimed was a recess of the Senate? The Supreme Court unanimously found the appointments unconstitutional. That decision limits Trump’s ability to make recess appointments today.
The same is true of cost-benefit analysis of regulations. Cost-benefit analysis often is considered a conservative idea, but it has been promoted by every president since Jimmy Carter. In a 2014 dissenting opinion, Kavanaugh criticized the Environmental Protection Agency for not giving any thought to the billions of dollars in costs its rule would impose. The Supreme Court agreed and reversed the D.C. Circuit. Every single justice agreed that, as Justice Elena Kagan said in dissent, “Cost is almost always a relevant — and usually, a highly important — factor in regulation.” Supposed deficiencies in cost-benefit analysis already have been cited as a reason to reject some deregulatory efforts in the Trump administration.
Kavanaugh's interest in administrative law tells us that he is intensely engaged with questions that arise constantly in his current court and at the Supreme Court. His interest tells us that he is thinking about the roles of Congress, the executive branch, and the courts in regulating our daily lives. He's asking questions that concern our liberty and our ability to participate as citizens in the development of the law. Hopefully, these are concerns close to the hearts of Democrats and Republicans alike.
Eugene Scalia is a lawyer in Washington who has handled numerous cases involving administrative law.
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