Politics & Policy

Brett Kavanaugh and the Encroaching Administrative State

Supreme Court nominee Judge Brett Kavanaugh at the Hart Senate Office Building in Washington, D.C., August 21, 2018. (Alex Wroblewski/Reuters)
He wants to interpret the law and preserve due process.

Brett Kavanaugh will make an outstanding Supreme Court justice, in part because he actually wants the job. That is, he refuses to cede his judicial responsibilities to the encroaching administrative state.

The role of an Article III judge is limited but important: A judge interprets the Constitution, and the laws passed by Congress, to decide cases presented to the court. As Chief Justice Marshall famously said in Marbury, “It is emphatically the province and duty of the judicial department to say what the law is.”

Judge Kavanaugh has taken that duty seriously on the D.C. Circuit. During his twelve years on the bench, he has unwaveringly held executive agencies to the laws set by Congress and the Constitution. Judge Kavanaugh knows that it is the judiciary, not the executive, that has the power to say what the law is. And he knows that it is the judiciary, not the executive, that has the power to hear cases and controversies.

Separating power between Congress, the executive branch, and the judiciary can cause inconvenience. Turning decision-making over to technocratic elites can be alluring. But haste also makes waste. Moreover, as the Supreme Court noted in Chadha, “convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government.” The constitutional requirements of bicameralism and presentment, which requires a bill to pass through both houses of Congress and cross the president’s desk before it can be a law, are pointless if a bureaucrat can stretch Congress’s law into loopholes large enough to sneak through policies untouched by the political process.

And this is where Judge Kavanaugh comes in. Laws written in general language must be interpreted to apply to individual circumstances. Just as a judge asks whether a statute protects or prohibits certain behavior, an agency must interpret a statute to determine whether it permits certain agency action. But, as Judge Kavanaugh understands, a judge and an agency have different objectives: A judge seeks the best reading of the statute; an agency seeks the reading of the statute that best comports with its policy goals.

Under Chevron, the Supreme Court’s invented deference doctrine, courts defer to whatever interpretation an agency comes up with so long as that interpretation is reasonable. Judge Kavanaugh has rightly criticized this doctrine as giving agencies too much power to “stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.” Under Chevron, Judge Kavanaugh has observed, “executive branch agencies often think they can take a particular action unless it is clearly forbidden” — rather than seeking to conform the action to the law.

And when it comes to holding agencies accountable, Judge Kavanaugh has put his money where his mouth is. For example, in Loving v. IRS, he rebuffed an attempt by the IRS to force small-time tax-preparers to pay fees, pass exams, and enroll in government training programs — using a law that authorizes the agency to regulate professionals who represent clients in IRS proceedings. As Judge Kavanaugh explained, the statute at issue said “nothing” about people who help individuals prepare their tax returns, and so the court vacated the rule as a “vast expansion of the IRS’s authority.”

Judge Kavanaugh has also scolded agencies for skimping on due-process rights in agency proceedings. In particular, deciding the rights of individuals without a fair hearing and on “bureaucracy standard time” does not sit well with the judge. When the SEC denied a defendant’s request in Laccetti v. SEC to have an expert accompany him to an investigative interview, Judge Kavanaugh chastised the agency for violating its own “fair procedures” rule.

In a dissent to Lorenzo v. SEC, Judge Kavanaugh chewed out the agency for imposing a lifetime suspension on a banker who forwarded an email from his boss to his clients that turned out to contain false information. According to Judge Kavanaugh, the SEC “contravene[d] basic due process” by failing to consider the banker’s state of mind when he forwarded the emails. And then, instead of correcting the mistake on review, the agency “rewrote the administrative law judge’s factual findings to make those factual findings correspond to the legal conclusion that [the banker] was guilty.” As Judge Kavanaugh put it, “So much for a fair trial.” His dissent prompted the Supreme Court to grant cert to review the agency’s behavior.

Democrats have tried to characterize Judge Kavanaugh as radical, but what’s actually radical is the way that misguided deference doctrines have amplified agency power and choked the judiciary’s constitutional role. Judge Kavanaugh just wants to do his job: He wants to interpret the law and preserve due process. That’s why we need him on the Court, and why I will do everything in my power to see him confirmed.

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Orrin Hatch — Orrin G. Hatch is the chairman emeritus of the Orrin G. Hatch Foundation. A Utah Republican, he served on the Senate Judiciary Committee from 1977–2019.


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