U.S. Supreme Court Nominee Brett Kavanaugh on Sept. 5 suggested that agencies sometimes improperly lean on legal precedent to promote environmental objectives beyond the scope of the law and that it is up to Congress, not the courts, to address those issues.
"We have to stick to the laws passed by Congress," Kavanaugh said on the second day of his confirmation hearing before the Senate Judiciary Committee. "You make the policy, we'll follow the policy direction ... we don't rewrite those laws," Kavanaugh said. "The executive branch also shouldn't be re-writing those laws beyond the scope" of the authority provided, he said.
If confirmed to the high court, Kavanaugh could shift it more solidly pro-business as he would replace Justice Anthony Kennedy, a swing voter who retired in July and had sided with the majority in several cases defending agency authority and more stringent air and water quality protections.
Kavanaugh is on the U.S. Court of Appeals for the District of Columbia Circuit, the primary venue for cases involving federal energy policy. In the years since he joined the D.C. Circuit in 2006, Kavanaugh has signed onto decisions that check federal agencies' powers and overturn certain environmental regulations affecting the energy sector. But Kavanaugh in the hearing argued that his decisions at the D.C. Circuit have been relatively evenly divided and that he has sided with environmentalists when the law supported him doing so.
The judge answered questions from several senators on his views regarding the importance of separation of federal powers, particularly when it comes to a long standing precedent under which courts generally defer to federal agencies' interpretations of regulations that are ambiguous or silent on a particular issue. That precedent was first established by the Supreme Court in the 1980s and is known as Chevron deference.
Federal agencies have a "natural tendency" to try to use existing laws to advance new environmental, national security or other policy goals, particularly when Congress fails to clarify or update the law to support that administration's goals, Kavanaugh said.
"When those cases come to court, it's our job to figure out whether the executive branch has acted within the authority given to it by Congress ... and my administrative law jurisprudence is rooted in respect for Congress," Kavanaugh said in answering a line of questions on the topic posed by Sen. Orrin Hatch, R-Utah. Hatch has sponsored legislation, the Separation of Powers Restoration Act, S.1577, to reverse the Chevron doctrine, which he described during the hearing as a "threat to the separation of powers because it transfers power from Congress and the judiciary to the executive branch."
One problem with Chevron, Kavanaugh said, is that judges have differing views on how much ambiguity is enough to warrant deference. At the same time, Congress has used key words such as "reasonable" or "feasible" in laws to indicate when lawmakers want to give agencies more discretion. In cases that involve those terms, "courts should be careful not to unduly second-guess agencies," Kavanaugh said in response to questions from Sen. Amy Klobuchar, D-Minn.
Kavanaugh also said judges need to be aware of how complicated the legislative drafting process can be. With all the compromises lawmakers have to make to get a bill passed, "it's hard to have crystal clarity," Kavanaugh said. But, he added, judges must adhere to those compromises as written in the law, although they can provide some value in that regard by pointing out places where the law appears to be flawed or may create some unintended consequences.
President Donald Trump has put a strong emphasis in his administration on rolling back unnecessary or over-burdensome regulations, and lawmakers asked multiple times for reassurances that Kavanaugh, a Republican and former White House general counsel's office staffer under President George W. Bush, will not let his personal politics clouds his judicial decisions. Kavanaugh said repeatedly that he will be a fair and impartial judge and will follow legal precedent, informed by the circumstances of each case.
As for how he views regulations, Kavanaugh said he is "not a skeptic of regulation at all."
"I'm a skeptic of unauthorized regulation, illegal regulation, regulation that's outside the bounds of what the laws passed by Congress have said," Kavanaugh said. "And that is what is at the root of our administrative law and jurisprudence."