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 is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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