Brett Kavanaugh's Latest Opinion Should Terrify Democrats
By Ian Millhiser, Vox
26 November 19
The Supreme Court now has five votes to sabotage the next Democratic
presidency.
If you've spent any time around the Federalist Society - the hugely
influential conservative legal society that plays an outsized role in
choosing President Trump's judicial nominees - then you've probably noticed
their obsession with a singular issue.
Beginning in the latter half of the Obama administration, Federalist Society
gatherings grew increasingly fixated on diminishing the power of federal
agencies to regulate businesses and the public - an agenda that would
severely weaken seminal laws such as the Clean Air Act and the Clean Water
Act.
On Monday, Justice Brett Kavanaugh signaled that he is on board with this
agenda.
Kavanaugh's opinion is not especially surprising. The Trump appointee to the
Supreme Court keynoted the Federalist Society's annual banquet earlier this
month and he spent much of the Obama years frustrating the Environmental
Protection Agency (EPA) and other federal agencies. But his opinion is
nonetheless significant because it shows that there are almost certainly
five votes on the Supreme Court to slash agencies' regulatory power.
Last June, in Gundy v. United States, all four of Kavanaugh's Republican
colleagues indicated they want to limit agency regulation. Kavanaugh,
however, did not participate in the Gundy case because he was not a member
of the Court when it was argued.
On Monday, the Supreme Court announced it would not hear Paul v. United
States, a case asking whether a federal law delegates too much authority to
the Justice Department to determine whether certain sex offenders need to
register with the government. That's the very same issue that the Supreme
Court considered in Gundy.
Kavanaugh, however, took the unusual step of releasing an opinion explaining
why he thought the Court should not hear Paul. His brief opinion praises
Justice Neil Gorsuch's effort to toss out decades of settled law regarding
the power of agencies to regulate. Indeed, if anything, Kavanaugh's Paul
opinion suggests that he would restrict federal power even more than Gorsuch
would.
It's impossible to exaggerate the importance of this issue. Countless
federal laws, from the Clean Air Act to the Affordable Care Act, lay out a
broad federal policy and delegate to an agency the power to implement the
details of that policy. Under Kavanaugh's approach, many of these laws are
unconstitutional, as are numerous existing regulations governing polluters,
health providers, and employers.
A revolution against the regulatory state looms on the horizon, and the
biggest losers are likely to be Democrats who hope to regain the White House
in 2020.
The Nondelegation Doctrine, briefly explained
Both Gundy and Paul concern a largely defunct legal doctrine known as
"nondelegation."
Broadly speaking, Congress can make laws in two ways. The most
straightforward way is it can simply command a person or industry to conduct
their business in a certain way. If Congress wants to restrict pollution,
for example, it can pass a law commanding power plants to use a particular
technology that reduces emissions.
The problem with this approach, however, is that acts of Congress are
difficult to change. If Congress had enacted a law in the 1970s requiring
power plants to use the best emissions reduction technology that existed
back then, it could have locked those plants into using technology that is
vastly inferior to the methods of reducing emissions that exist today. At
the very least, Congress would have struggled to keep abreast of new
technology and to update the law as better methods of reducing emissions
were invented.
So that's not what Congress did. Instead, the Clean Air Act provides that
certain power plants must use "the best system of emission reduction" that
currently exists, while also taking into account factors such as cost.
Congress also tasked the EPA with studying what technology is available to
reduce emissions and with creating binding regulations instructing energy
companies on which systems they must use to reduce emissions.
As the technology evolves, the EPA may update its regulations, so that power
plants in 2019 use the best system of emission reduction that exists in 2019
- not the one that existed in the 1970s.
In this way, federal policy can be both democratic and dynamic. It is
democratic because the goals of federal policy are ultimately set by the
people's representatives in Congress. But it is also dynamic because
Congress doesn't have to pass a new law every time a new innovation arrives
on the scene.
"Nondelegation" is the idea that the Constitution imposes limits -
potentially very strict limits - on Congress's power to give regulatory
authority to federal agencies.
Under current law, "a statutory delegation is constitutional as long as
Congress 'lay[s] down by legislative act an intelligible principle to which
the person or body authorized to [exercise the delegated authority] is
directed to conform.'" That is, Congress has broad authority to delegate
power to federal agencies so long as it explains with sufficient clarity
what the agency is supposed to accomplish with its power.
In Gundy, however, Gorsuch sharply criticized this long-standing rule and
called for the Court to revive the Nondelegation Doctrine.
In that opinion, Gorsuch suggested that current law risks giving agencies
"unbounded policy choices." His explanation of what new limits he would
impose on federal agencies is vague and it's hard to find a clear legal rule
in the opinion. Nevertheless, Gorsuch writes that a federal law permitting
agencies to regulate must be "'sufficiently definite and precise to enable
Congress, the courts, and the public to ascertain' whether Congress's
guidance has been followed."
As a practical matter, when the Supreme Court hands down such a vague and
open-ended legal standard, it is effectively shifting power to the
judiciary. What does it mean for a statute to be "sufficiently definite and
precise" that people can "ascertain whether Congress's guidance has been
followed"? I honestly have no idea. But, as a practical matter, the answer
to this question will be decided by the Supreme Court's Republican majority
whenever it is confronted with an agency regulation.
Gorsuch, in other words, would give the Republican-controlled Supreme Court
a veto power over all federal regulations. That prospect should chill each
of the Democratic presidential candidates to the bone. If any of them
prevail, their administration would have to seek a permission slip from the
Court if it wants to regulate, if Gorsuch's view holds sway.
Now, Gorsuch's Gundy opinion was actually a dissent - but only for reasons
that are unlikely to repeat in a future case. As mentioned above, Kavanaugh
did not participate in the case. And Justice Samuel Alito wrote an unusual
opinion where he said that "if a majority of this Court were willing to
reconsider the approach we have taken for the past 84 years, I would support
that effort." Nevertheless, Alito voted to keep existing law in place until
such a majority sits together on the same case.
It's unclear why Alito did so, but Alito is a former prosecutor with very
pro-prosecution instincts, so he may not have wanted to side with a sex
offender in a case where he lacked the votes to move legal doctrine to the
right.
The two remaining Republican justices, Chief Justice John Roberts and
Justice Clarence Thomas, both voted with Gorsuch. So that's four votes to
revive the Nondelegation Doctrine.
Kavanaugh's solo opinion in Paul makes five.
The issue in Paul is very similar to the issue in Gundy, so the Supreme
Court ultimately decided not to hear the Paul case - most likely because it
wanted to avoid the spectacle of reaching two opposite conclusions on the
same legal question in just two years. Nevertheless, Kavanaugh used this
occasion to write that Gorsuch's "scholarly analysis of the Constitution's
nondelegation doctrine in his Gundy dissent may warrant further
consideration in future cases."
That's the sort of language justices often use to signal that they would
like to see a past dissent become a future majority opinion.
Kavanaugh reads Gorsuch's opinion to state that Congress may not allow an
"agency to exercise regulatory authority over a major policy question of
great economic and political importance." Again, this standard is vague and
would effectively give the Supreme Court broad authority to veto regulations
that its Republican majority dislikes. Kavanaugh's Paul opinion also signals
that he would shrink agency power to only include "less-major or
fill-up-the-details decisions."
Nondelegation would be a disaster for Democrats and a big win for
Republicans
In theory, the Nondelegation Doctrine could be applied in a neutral way to
administrations controlled by either party. In practice, it would be a boon
to Republicans and an albatross around the neck of Democrats.
One reason why is that Democrats tend to support robust regulation while
Republicans do not. An anti-regulatory doctrine inherently favors
conservatives.
A second reason is that the Supreme Court is controlled by Republicans. So,
even if it is possible for the Nondelegation Doctrine to be applied in a
neutral way, this Supreme Court seems unlikely to do so.
Meanwhile, the biggest problem facing Democrats for the foreseeable future
is Senate malapportionment. Currently, the Republican Senate "majority"
represents 15 million fewer people than the Democratic "minority," and
that's a significant Republican gain over the previous Senate. In the Senate
that confirmed Gorsuch and Kavanaugh, the Republican "majority" represented
almost 40 million fewer people than the Democratic "minority."
Similarly, when the Republican Senate "majority" refused to give a hearing
or a confirmation vote to Obama Supreme Court nominee Merrick Garland,
Democratic senators represented about 20 million more people than
Republicans.
Republicans, in other words, owe their Supreme Court majority to the fact
that the Senate, which gives each person in Wyoming about 66 times more
representation than residents of California, is malapportioned to strongly
favor the GOP. That same thumb on the scale in favor of Republicans,
moreover, also gives Republicans an enormous advantage in the legislative
process.
Republican presidents are likely to serve alongside Republican Senates, and
thus they will be able to enact a legislative agenda unless Democrats
control the House. Democratic presidents, by contrast, must win by
commanding margins to even have a shot at a Senate majority. And, even then,
they must overcome the Senate's filibuster rules - which allow just 41
Republican senators to block any regulatory legislation - in order to pass a
bill through the Senate.
Thus, if a Republican Supreme Court disables major legislation like the
Clean Air Act, that law is likely to remain disabled for the foreseeable
future.
That is why the Nondelegation Doctrine could be a recipe for one-party rule.
Republican justices can disable regulations at their leisure - or even
strike down the very laws permitting such regulation. And Democrats are
unlikely to ever win a Senate majority large enough to do anything about it.
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