Bench Memos

Law & the Courts

Judge Kavanaugh on Separation of Powers and Administrative Law

Over at SCOTUSBlog, Ohio State law professor Chris Walker does a deep dive on Judge Kavanaugh’s record on administrative law and separation-of-powers issues. He writes:

In reviewing Kavanaugh’s robust record on administrative law, I find myself agreeing with Jonathan Adler’s conclusion that a Justice Kavanaugh would not bring to the Supreme Court a commitment, in Steve Bannon’s words, to the “deconstruction of the administrative state.” He cares deeply about administrative law and regulatory practice. But he would likely “put a tighter leash on the regulatory state” — a tightening that would generally apply to regulation and deregulation alike.

That is because Kavanaugh’s decisions on the D.C. Circuit, coupled with his other writings, reveal a judge who takes separation of powers seriously. For Kavanaugh, agency regulatory authority comes from and is constrained by Article I, in that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Similarly, the modern administrative state functions against the Article II backdrop that “[t]he executive power shall be vested in a President of the United States of America.” These constitutional separation-of-powers values deeply influence Kavanaugh’s approach to administrative law.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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