Written by Michael P. DeGrandis
In the 1996 cinematic comedy Mars Attacks, Martians destroy Congress, prompting President James Dale (played by Jack Nicholson) to reassure the country by saying, “I want the people to know that they still have two out of three branches of government working for them — and that ain’t bad!”
The administrative state’s decades-long agglomeration of legislative, executive, and judicial power has undermined the Constitution’s separation of powers framework, compromising all Americans’ civil liberties. Although Mars hasn’t attacked America, it appears that virtually no branch of government is working. Congress keeps entrusting more power to less accountable agencies, the executive branch isn’t reigning in its agencies’ exercise of power, and the judiciary is looking the other way.
The first step to reconciling the constitutional order is simple and it will have an immediate impact: Confirm. Kavanaugh. Now.
Judge Brett Kavanaugh may not be the first to sound the alarm regarding the unlawful administrative state, but he might just be the most principled and articulate jurist to explain the essential role that the separation of powers framework plays in securing individual liberty from, as he has aptly described it, the “headless fourth branch of the U.S. Government.”
Judge Kavanaugh has carefully explained that the Founders designed the Constitution’s separation of powers structure to secure individual liberties. Quoting James Madison, he asserts that “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny.” Thus, Judge Kavanaugh believes that courts should exercise more review authority over independent agencies because their adopted regulations have not passed through executive supervision (the president) in the way our constitutional structure requires.
Instead, courts have abandoned their Article III-mandated independent judgment in favor applying so-called Chevron deference. This form of judicial deference comes from a 1984 Supreme Court decision which held that where an agency’s interpretation of an ambiguous statute is not wholly unreasonable, courts should defer to the agency’s interpretation.
Since Chevron, courts have also begun deferring to agency interpretations of their own rules and even the scope of their own jurisdiction. But, as Judge Kavanaugh keenly noted, Chevron is merely “an atextual invention by courts.” Indeed, Chevron deference “is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”
The executive branch hasn’t been helpful, either. As Judge Kavanaugh witnessed firsthand prior to his tenure on the bench, “Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” The net effect of Chevron deference is that “when the Executive Branch chooses a weak (but defensible) interpretation of a statute, and when the courts defer … every relevant actor may agree that the agency’s legal interpretation is not the best, yet that interpretation carries the force of law.”
Judge Kavanaugh has warned that “[b]ecause of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of checks and balances[,]” but he isn’t necessarily looking to overturn Chevron. His principal concern with the Chevron doctrine is that courts often incorrectly defer to agencies in circumstances that have little to do with the reasonableness of agencies’ expressly delegated policy decisions.
The ground beneath Chevron deference is already shifting. On the state level, Arizona, Mississippi, and Wisconsin stopped applying Chevron-like judicial deference to state agencies earlier this year. Florida is expected to vote on the issue in November.
At the federal level, the Supreme Court’s King v. Burwell decision limited Chevr
Now there is hope that the Senate will swiftly confirm Judge Kavanaugh to the Supreme Court.
In combination with the Trump administration’s demonstrated commitment to regulatory reform — eliminating 22 regulations for every new one implemented last year — the confirmation of Judge Kavanaugh could mean that for the first time in many generations, Americans will have two out of the three branches of government working for their civil liberties. And while all three would be better, two ain’t bad!
Michael P. DeGrandis is senior litigation counsel at the New Civil Liberties Alliance (NCLA), a nonprofit civil rights organization dedicated to protecting all Americans from the administrative state.