Over at SCOTUSblog, I have a post today examining Judge Kavanaugh’s administrative law jurisprudence and his potential impact on administrative law and regulatory practice if he were to fill Justice Kennedy’s seat on the Supreme Court.
Here’s a snippet (of a nearly 4,000-word post):
In reviewing Kavanaugh’s robust record on administrative law, I find myself agreeing with Jonathan Adler’s conclusion that a Justice Kavanaugh would not bring to the Supreme Court a commitment, in Steve Bannon’s words, to the “deconstruction of the administrative state.” He cares deeply about administrative law and regulatory practice. But he would likely “put a tighter leash on the regulatory state” — a tightening that would generally apply to regulation and deregulation alike.
That is because Kavanaugh’s decisions on the D.C. Circuit, coupled with his other writings, reveal a judge who takes separation of powers seriously. For Kavanaugh, agency regulatory authority comes from and is constrained by Article I, in that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Similarly, the modern administrative state functions against the Article II backdrop that “[t]he executive power shall be vested in a President of the United States of America.” These constitutional separation-of-powers values deeply influence Kavanaugh’s approach to administrative law.
Although not a comprehensive survey of his administrative law jurisprudence, the following in-depth look at three areas captures some of Kavanaugh’s major contributions to administrative law and assesses his potential impact on the federal regulatory state if he is elevated to the Supreme Court.
You can read the full analysis here.