Kavanaugh Makes Imminent Roberts Court War on the Regulatory State Official
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This is, while inevitable, still very bad:
On Monday, Justice Brett Kavanaugh sent the clearest signal yet that the Supreme Court’s conservative majority is ready to take a wrecking ball to federal regulations. By doing so, the court could jeopardize a vast swath of laws that govern pollution, Wall Street, wage and hour rules, campaign finance limits, and more.
Kavanaugh’s fellow conservative justices already declared their disdain for the “administrative state”—that is, the agencies that interpret and enforce federal law—in June’s Gundy v. United States. All four conservatives argued for a revival of the “nondelegation doctrine,” which bars Congress from transferring its legislative power to another branch of government. But Kavanaugh did not join the court in time to hear Gundy. As a result, Justice Elena Kagan and her fellow liberals were able to stave off an assault on the federal bureaucracy. The big question, then, was whether Kavanaugh would join the conservatives’ crusade.
On Monday, Kavanaugh announced that he is, indeed, on board. In a short opinion, Kavanaugh wrote that the Constitution may bar Congress from directing federal agencies to “to decide major policy questions.” This issue, he noted, “may warrant further consideration in future cases.” Since most federal agencies are located within the executive branch, the doctrine would bar lawmakers from authorizing these agencies to make “policy decisions.” Instead, as Kavanaugh put it, agencies could only “decide less-major or fill-up-the-details decisions.”
The revival of nondelegation doctrine by the Roberts Court will be a disaster. And, of course, the idea that a doctrine that existed for a whole five months in 1935 is central to the traditions of American constitutionalism is absurd. There is, as Stern says, no legal way to distinguish a “policy decision” from a merely interstitial one, and the actual practical result of the doctrine will be unelected judges making harder for much more accountable executive branch officials to carry out the jobs Congress gave them according to wholly arbitrary standards. Which needless to say is the point of the exercise.