By Steven Pearlstein
The Democratic outrage machine has it wrong. It’s not Roe v. Wade that is most in danger of being overturned if Brett Kavanaugh makes it to the Supreme Court — I doubt either Kavanaugh or Chief Justice John G. Roberts Jr. is of a mind to wade into that political and legal minefield. What Democrats really ought to be worried about is Chevron v. Natural Resources Defense Council.
In its 1984 Chevron decision, the Supreme Court declared that when a law passed by Congress is silent or ambiguous on an issue of how an agency should exercise its regulatory authority, the courts should defer to the reasonable judgment of the agency. In the years since, this “Chevron deference” has provided the legal basis for hundreds of regulations protecting consumers, workers and the environment promulgated under laws that, in many instances, could never have anticipated the economic, social and technological changes that would necessitate them decades later.
But to the business community and legal and ideological conservatives, Chevron has come to be seen as a giant legal loophole that has led to the creation of a vast “administrative state” that has encroached on the power of Congress to make the laws and the judiciary to interpret them. And no two judges have been more closely associated with the campaign to pare back Chevron, or overturn it completely, than President Trump’s first two Supreme Court nominees, Neil M. Gorsuch and Brett Kavanaugh.
Indeed, in a speech earlier this year to the Conservative Political Action Conference, Donald McGahn, Trump’s White House counsel, described what he called a “coherent plan” to shackle the power of the federal bureaucracy that had become “its own branch of government” whose “decisions tend to trend to the left.” The campaign against the administrative state is also a top priority of Leonard Leo, mastermind behind the Federalist Society, which has effectively served as a screening agency for Trump’s judicial picks.
In an opinion in an immigration case in 2016, while he was still an appeals court judge in Denver, Gorsuch famously characterized the Chevron case as “an elephant in the room” that had allowed “executive bureaucracies” to amass more power than the framers of the Constitution could have ever imagined. “Maybe the time has come to face the behemoth,” he wrote.
And in a 2016 speech to the Notre Dame Law School, Kavanaugh — then, as now, a member of the federal appeals court in Washington — declared that “the Chevron doctrine encourages agency aggressiveness on a large scale. Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate” an ever-expanding view of their own power and prerogative.
Indeed, over 12 years on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh has waged a crusade against the regulatory state that a cynic might think was designed to raise his profile and made him the darling of pro-business, anti-government conservatives.
In 2012, Kavanaugh argued, in a dissenting opinion, that the Environmental Protection Agency exceeded its authority when it tried to regulate emissions of climate-changing greenhouse gasses as air pollutants under the Clean Air Act, warning his colleagues that they had shown “undue deference” to the environmental agency. Justice Antonin Scalia would later adopt some of the reasoning of his dissent in a Supreme Court opinion overturning those regulations.
In the same year, Kavanaugh wrote the majority opinion in another case that threw out more than a decade of complicated negotiations among the EPA and state regulators aimed at devising a formula by which states would take responsibility for harmful emissions from factories and power plants that drift over into other states. That ruling was later overturned by the Supreme Court.
And two years later, Kavanaugh dissented from a ruling upholding EPA regulations to curtail emissions containing mercury from power plants that cause tens of thousands of premature deaths each year because the EPA had not fully considered the cost of compliance. The Supreme Court would later uphold his view in a 5-to−4 decision.
More recently, Kavanaugh dissented from a ruling that upheld the power of the Federal Communications Commission to adopt rules preventing Internet service providers from making it harder or slower or more expensive for customers to download certain content from the Internet. These “net neutrality” rules, adopted during the Obama administration, were withdrawn by the FCC after Republicans regained control of the commission following the 2016 election.
And earlier this year, Kavanaugh dissented from another decision of his D.C. Circuit colleagues in arguing that — contrary to the express intent of Congress to shield him from industry pressure — the president should be able to fire the director of the Consumer Financial Protection Bureau for any reason he chooses, not just “for cause.” Not coincidentally, that has long been the position taken by congressional Republicans, who never wanted the agency in the first place, and Trump.
“Because of their massive power and the absence of Presidential supervision and direction,” Kavanaugh wrote in his dissent, “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
Common to all these opinions has been an intellectual dishonesty and legal sophistry that allows Kavanaugh to overlook inconvenient facts or legal precedents as he cleverly weaves his detailed and otherwise reasonable sounding tales of regulatory overreach and ineptitude. As a judge, he demonstrates a willful ignorance of the challenge of modernizing laws in an era of political gridlock, polarization and dysfunction, and a stubborn refusal to consider the difficulty of fashioning workable regulations in a complex, fast-changing economy.
As Lisa Heinzerling, a professor at Georgetown Law Center, has written, this “major rules” exception to Chevron is not some neutral or evenhanded new principle that judges can use to interpret statutes. Rather, she argues, it “loads the dice” against any future expansion of environmental, consumer or workplace regulation, while potentially threatening many of the regulations already in place.
With the addition of Kavanaugh, the Supreme Court would have five reliable votes — also counting Gorsuch, Roberts, Samuel A. Alito Jr. and Clarence Thomas — to effectively overturn Chevron and complete the 30-year judicial assault on business regulation. In the future, even a Democratic president and a Democratic Congress would find it difficult to enact major new regulations. More than the travel ban and the tariffs and the tax cuts, that is likely to be Trump’s most enduring economic legacy.