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‘Logjam and Gridlock’: Kavanaugh Concurrence Signals Radical Shift on Supreme Court


Supreme Court Justice Brett Kavanaugh broadcast a signal that could spell the end of the administrative state as we know it.

Kavanaugh authored a two-page concurrence Monday morning in which he agreed the court should deny certiorari in a case challenging the Sex Offender Registration and Notification Act (SORNA) because substantially similar issues were dispensed with by the nation’s high court in another case last year.

“I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that the Court resolved last Term in Gundy v. United States,” Kavanaugh notes.

That concurrence continues on–and launches a shot across the bow of how the Supreme Court understands the semi-legislative power granted to federal administrative agencies.

“I write separately because Justice [Neil] Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases,” he continues.

Gorsuch outlines his argument in the first paragraph of that dissent:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

In other words, SORNA allows the U.S. Attorney General (whoever that is at the time) to make sense of applying the law in question to a large group of individuals otherwise not accounted for in the actual law itself. Gorsuch argued that this effectively gives “the nation’s chief prosecutor the power to write a criminal code rife with his own policy choices” because “SORNA vested lawmaking power in one person rather than many.”

Writing in the minority, Gorsuch’s argument wasn’t fatal to that particular law–but Kavanaugh’s invocation of that quite lengthy dissent is being read as “an invitation for litigants to bring additional non-delegation challenges.”

“Justice Gorsuch’s opinion built on views expressed by then-Justice [William] Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute,” Kavanaugh continued. “In that case, Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.”

In that case, the Supreme Court declined to allow the Occupational Safety and Health Administration (OSHA) to regulate certain carcinogens by using its own standard. But the actual decision in that case was somewhat narrow. The Supreme Court ruled against OSHA due to the agency’s misinterpretation of the underlying statute.

Rehnquist’s concurrence, however, would have gone a bit farther and undone even more of the agency’s powers because, he argued, “the nondelegation doctrine is designed to assure that the most fundamental decisions will be made by Congress, the elected representatives of the people, rather than by administrators.”

Kavanaugh wants that doctrine resuscitated–and then some.

In the wake of Justice Rehnquist’s opinion, the Court has not adopted a non delegation principle for major questions. But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce.

The opinions of Justice Rehnquist and Justice Gorsuch would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority.

Law&Crime reached out to Civil Rights lawyer and administrative law expert Sasha Samberg-Champion for a bird’s eye view of what Kavanaugh’s concurrence might portend for the future of administrative agencies and their ability to make law.

“I would construe this as making the administrative state as far less nimble and able to react to things that happen in the world without guidance from Congress,” he said. “That’s important these days because Congress, as of late, has been far less able to legislate in a timely way about pressing problems like climate change.”

Samberg-Champion offered a high-profile explanation of agency power’s tenuous position viz. the nation’s high court:

The classic example of how this works is the FDA vs. Brown & Williamson tobacco case. In that case, the Supreme Court considered a challenge to the FDA’s broad authority to regulate drugs and devices. A broad reading of that authority would suggest tobacco is a drug and cigarettes are a device to put tobacco into your body. The Supreme Court rejected that argument on the grounds that the regulation of tobacco, being so politically-charged is such a “major question,” so that’s something Congress itself has to decide and the Supreme Court wouldn’t assume Congress left it up to the agency.

“When I see Kavanaugh citing the MCI case, it’s not just a question of statutory interpretation, it’s a case of constitutional authority,” he continued. “The result of that, I think, is it’s going to cause a logjam and gridlock because Congress is not able to act with any expediency on pressing problems.”

Other legal observers also sounded the alarm.

“Welp, there it is: Kavanaugh signals his agreement with Gorsuch’s Gundy dissent,” noted legal analyst Mark Joseph Stern. “There are now five votes for a nondelegation revolution. Get ready for the Supreme Court to tear down the administrative state.”

Legal blogger Charles Star had a similar take.

“Kavanaugh is on board with the non-delegation doctrine, which will cripple the ability for congress to legislate in the way they have for decades,” he tweeted.

“[I]t will hamstring agencies from acting and allow bad actors to escape any regulation at all. [I]t’s a stupid theory based on structural constitutional arguments that are fake philosophy treated like religion,” Star added.

Mark Mancini, a Canadian attorney and administrative law expert who runs the Runnymede Society, said the shift was real but would likely be a bit less pronounced.

“Justice Kavanaugh’s separate opinion in the denial of certiorari in Paul v US portends interesting non-delegation debates for some time to come, particularly in the upcoming DACA cases,” he told Law&Crime via email. “Both Justices Gorsuch and Kavanaugh, channeling then-Justice Rehnquist in a previous case, would refashion a rule of statutory interpretation–Congress cannot delegate power to decide ‘major questions’ absent a clear statement–into a sort of non-delegation doctrine, where Congress must decide major questions at the outset, and cannot even clearly delegate that power.”

“For what it’s worth, my view is that requiring Congress to legislate on major questions would not pull the administrative state apart,” Mancini continued–suggest instead that the shift would be more akin to a “re-calibration” of how agencies function. “Justices Kavanaugh and Gorsuch do not wish to do away with delegation writ large; instead, they simply wish to force Congress to opine conclusively on major issues, which has the effect of focusing political responsibility on Congress for the exercise of legislative power.”

But even that re-calibration would pose issues. Mancini continued:

Of course, there are problems with the Kavanaugh/Gorsuch approach. For one, it would be difficult to ascertain the meaning of a “major question” versus a “minor one.” Any line chosen for this task might be arbitrary. And there are certainly some who argue that withdrawing “major questions” from the remit of agencies will hobble the administrative state, in part because Congress cannot be trusted to decide major questions

[image via Doug Mills-Pool/Getty Images]

Editor’s note: this article has been amended post-publication to include additional quotations and for clarity.

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