Progressives are right to fear Judge Brett Kavanaugh, but it is not his views on abortion, race or gay marriage that will haunt them. Instead, Kavanaugh’s threat to liberalism lies in his hostility to the modern technocratic state, where federal bureaucracies rule with few checks and balances.
As soon as President Trump nominated Kavanaugh to replace Justice Anthony M. Kennedy on the Supreme Court, Democrats resorted to their well-worn playbook. Here’s House Minority Leader Nancy Pelosi (D-San Francisco): “Judge Kavanaugh’s long history of opposition to the full, fundamental right of every woman to make her own decisions about her body, family and health care poses a grave threat to women’s rights and to our founders’ promise of liberty and justice for all.”
Yet as a federal appeals court judge in the District of Columbia, an investigator for Kenneth W. Starr’s Whitewater probe and a White House official under President George W. Bush, Kavanaugh has written almost nothing significant about abortion or other “cultural” hot topics; we know little about his legal theories on these matters. On the other hand, he has left a striking paper trail attacking the 20th century administrative state, a system that operates as a kind of perpetual-motion machine for progressivism.
If Kavanaugh’s views were to prevail in the Supreme Court, independent agencies might disappear into the past.
Our modern system breaks with the framers’ original design for lawmaking. As James Madison noted in Federalist 51, the Constitution creates an obstacle course for any new law (familiar to those who grew up watching “Schoolhouse Rock!”): An identical bill must pass the two separate houses of Congress, one representing the states (the Senate) and one the people (the House), and receive presidential approval. The framers expected that federal laws would be scarce, and state laws plentiful. As Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
For 100 years, the U.S. followed Madison’s model of a modest federal government. But a century ago, during the Progressive Era, President Wilson decided federalism and the separation of powers couldn’t keep pace with the demands of a industrialized society. He called on Congress to delegate broad swaths of authority to new federal agencies that could exercise expert, scientific judgment freed from politics.
During the Great Depression, President Franklin D. Roosevelt put Wilson’s ideas into practice with the New Deal. The Securities and Exchange Commission, the Federal Communications Commission and most of the other “alphabet” agencies in Washington date back to the New Deal; the Environmental Protection Agency and the Consumer Financial Protection Bureau are more current examples. These bureaucracies issue regulations with all the force of laws, execute them and even adjudicate the results, effectively becoming a fourth branch of government.
Presidents appoint the leaders of the agencies but often can’t control them because Congress forbids the removal of agency heads except for violations of law or abuse of power. Courts routinely defer to agencies. And once Congress creates an agency, it rarely snatches its power back. After all, reelection comes easier if Congress members can fob off tough decisions about the environment, technology or the economy to someone else.
To progressives, the agencies’ insulation allows experts to set policy without the messiness of having to pass laws. Technocrats, not politicians, make complex decisions about the nation’s airwaves or automobile pollution. Never mind that the framers’ system of rare, limited federal lawmaking is replaced by a supercharged, unencumbered bureaucratic engine spewing out regulations.
Kavanaugh has directly challenged aspects of the bureaucratic fourth branch. In a 2010 article in Harvard Law Review, he attacked the Chevron doctrine, a Supreme Court ruling that requires judges to defer to an agency’s interpretation of the laws it administers, calling it “an atextual invention.” Instead of deferring to agency experts, Kavanaugh argues, courts should closely scrutinize whether their regulations satisfy Congress’ directives.
Kavanaugh has also suggested that the Constitution limits Congress’ power to delegate its legislative responsibilities to unaccountable independent bureaucrats. For example, Congress cannot simply order the EPA to clean the air without specifying why, how and or at what cost. If Kavanaugh’s suggestion took hold, Congress and the president might have to accept political responsibility for basic policy, rather than punting to the agencies.
Kavanaugh’s ideas about the Consumer Financial Protection Bureau are instructive. The CFPB, established after the 2008 recession, may be the most egregious of the independent agencies. There’s no commission or board, just a single director. Congress doesn’t fund its operations, so it has no sway over the CFPB. Kavanaugh, in a dissenting opinion last year, argued that Congress had vested too much unfettered, unconstitutional power in a single unaccountable officer. If Kavanaugh’s views were to prevail in the Supreme Court, independent agencies might disappear into the past.
Kavanaugh’s paper trail indicates that he might very well seek to revitalize federalism and the separation of powers, rendering the administrative state more responsive and accountable. Liberals will kick and scream, but they too would benefit from a diminished and humbler bureaucracy. As we are learning during the current administration, delegated authority can be used for conservative as well as liberal ends. No one should doubt that bureaucratic insulation strengthens the technocrats at the expense of representative government.
Saikrishna Prakash is a law professor and Miller Center fellow at the University of Virginia. John Yoo is a law professor at UC Berkeley and a visiting scholar at the American Enterprise Institute.
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