Kavanaugh Lines Up With Anti-Regulatory Stance

      Supreme Court Justice Brett Kavanaugh steered clear of controversy when he used the Federalist Society's annual meeting last month [Nov. 14] as the forum for his first public appearance since his contentious confirmation a year ago. Less than two weeks later, however, Kavanaugh went out of his way in a below-the-radar Supreme Court case to advance a major conservative issue by calling for federal courts to expand their role in reviewing regulatory initiatives by federal administrative agencies.
      Kavanaugh fired his shot across the bow last week [Nov. 25] even as he joined in shelving a case, Paul v. United States, that asked the Court to give new life to the so-called nondelegation doctrine as a limit on administrative agencies' powers. The petitioner in the case, Ronald Paul, wanted the Court to invalidate decisions by three U.S. attorneys general to extend the federal sex offender registration law to sex offenders like himself convicted before the law was enacted in 2007.
      The Court rejected that argument in a similar case, Gundy v. United States, decided on June 20 by a splintered 5-3 majority without Kavanaugh's participation because it was argued before his confirmation. In his "statement
 respecting the denial of certiorari," Kavanaugh said he agreed with the decision not to hear Paul's case because it raised "the same statutory issue resolved last term in Gundy . . . ."
      Kavanaugh went on, however, to praise Justice Neil Gorsuch's dissenting opinion in Gundy and to call for considering Gorsuch's view in a future case. Kavanaugh's position creates a potential five-vote majority in favor of what would amount to a mini-revolution in judicial review of regulatory policy. Under Gorsuch's approach, federal courts would be expected to strike down regulations that go beyond "filling up details" in congressional statutes and instead embody "major policy decisions" properly for Congress to make.
      Political conservatives have long complained that federal regulators often go beyond their powers delegated by Congress to promulgate regulations that ought to be enacted if at all by elected representatives in Congress instead of unelected federal bureaucrats. Despite the long history of these complaints, the Supreme Court has invoked the nondelegation doctrine only twice to strike down federal regulatory initiatives in two decisions in 1935 that dealt with New Deal enactments under President Franklin D. Roosevelt.
      The defendants in Gundy and Paul argued that attorneys general under Presidents George W. Bush and Barack Obama had gone too far in issuing regulations that applied the Sexual Offender Registration and Notification Act (SORNA) retroactively to sex offenders convicted before it was enacted. The law included a provision instructing the attorney general to cover pre-Act offenders "as soon as feasible."
      In Gundy, Justice Elena Kagan wrote for a plurality for four justices to find that provision sufficient authority for the regulations to extend SORNA's registration requirements. Justice Samuel A. Alito Jr. provided the fifth vote for the decision in a limited concurring opinion that he used to call for reviving the nondelegation doctrine in a future case with a full nine-justice bench.
      Gorsuch was joined in his 33-page dissenting opinion by two other conservatives: Chief Justice John G. Roberts Jr. and associate justice Clarence Thomas. Gorsuch argued for a stronger approach to nondelegation issues to prevent what he called "delegation run riot," invoking Justice Benjamin Cardozo's oft-quoted phrase from one of the 1935 decisions.
      Kavanaugh praised what he called Gorsuch's "scholarly analysis" of the nondelegation doctrine in a four-paragraph opinion that traced Gorsuch's view to a concurring opinion written almost 40 years ago by then-associate justice William H. Rehnquist. Rehnquist provided the fifth vote in the Court's decision in Industrial Union Department v. American Petroleum Institute (1980) to strike down strict benzene exposure standards promulgated by the Occupational Safety and Health Administration (OSHA).
      The four moderate-to-liberal dissenters in that case complained that the four justices in the plurality struck down the OSHA regulation based on "the plurality's own views of proper regulatory policy." Ian Milhiser, a friend and colleague, channeled this critique in a sharply written column for the online news site Vox. Kavanaugh's opinion, Milhiser wrote, "shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power."
      From the opposite perspective, the libertarian commentator Damon Root hailed Kavanaugh's opinion in a short column for Reason.com as evidence that the rookie justice "seems to have joined Gorsuch's campaign to put some judicial teeth into the nondelegation doctrine." Root called the development "welcome news." In his column, however, Milhiser warned that Gorsuch's approach, if adopted, would "severely weaken seminal laws such as the Clean Air Act and the Clean Water Act."
      Gorsuch took pains in his opinion to leave room for Congress to delegate fill-in-the-blanks power to regulatory agencies, for example, when based on specified factual findings. But the decisions he cited all struck down regulatory initiatives       for example, the regulations promulgated by the Food and Drug Administration (FDA) to limit marketing of tobacco products to minors.
      In his opinion, Gorsuch vigorously insisted on the need for important policy decisions to be made by the people's elected representatives. Yet his position would necessarily result in giving the five unelected Republican-appointed justices broad discretion to strike down regulations that run contrary to their political views. The irony is too thick to overlook.