Op-ed by CFJ director of public policy Ashley Baker published in
The Hill
:
The power of the administrative state and the
Chevron
doctrine that enables it loom over the battle to confirm Supreme Court nominee Brett Kavanaugh. His views on the doctrine will undoubtedly be one of the major prongs of Senate Democrats' attacks during his upcoming hearings.
The
Chevron
doctrine, originating in the 1984 Supreme Court ruling
Chevron v. Natural Resources Defense Council
, provides that courts must defer to a federal agency's interpretation of a statute when its language is ambiguous. The
doctrine allows administrative agencies to hide under the cover of statutory ambiguity to broaden the scope of their own authority and expand their regulatory reach.
The
Chevron
doctrine and the larger problem of an expanding administrative state grow out of the
assumption of administrative independence
born of the New Deal, combined with a
judiciary
prone to deference. Particularly problematic are the “independent agencies” that have become unaccountable, upsetting the balance between the three branches in our constitutional scheme.
During his 12 years as a federal judge on the U.S. Court of Appeals for the D.C. Circuit, Judge Kavanaugh has heard
2,700 cases
in what is arguably the most important court for administrative law. Of the
307 opinions
Kavanaugh has written,
122
reviewed agency decisions.
In the swirl of partisan rhetoric surrounding the confirmation hearings, it may come as a surprise to learn that Judge Kavanaugh has authored four times as many opinions in cases involving executive agencies than civil liberties, unions, and voting rights combined.
Throughout his administrative law opinions, Judge Kavanaugh has decried blind deference to executive agency bureaucrats as an abdication of judicial duty and a violation of the constitutional separation of powers. Kavanaugh's
response
to the Senate Judiciary Committee’s question about which of his cases he considers most significant underscores the importance of the issue of agency deference.
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MORE FROM CFJ | RECENT PUBLICATIONS
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Op-ed by CFJ president Curt Levey published in
The Wall Street Journal:
By any measure, they are a drop in the ocean. And they’re hard to distinguish from domestic sentiments.
Alarm bells rang in the media and on Capitol Hill last month when
Facebook
announced its discovery and removal of a new wave of malicious political ads of probable Russian origin, indicating “determined, well-funded adversaries who will never give up.”
...The bottom line is that it’s difficult to pin down what we’re supposed to be afraid of, never mind which specific instances of “inauthentic attempts to influence political discourse” deserve censorship. That makes the frenzy over Russian ads seem even more exaggerated.
Ironically, some of the overreaction can be traced to the similarities between Russian ads and domestic political discourse. We don’t like the divisiveness, name-calling, wild accusations and other heated rhetoric that increasingly dominate that discourse. Blaming the Russians is seductive because the unpleasant alternative is to blame ourselves.
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EARLIER THIS MONTH | CFJ IN THE NEWS
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The Wall Street Journal
:
(letter to the editor)
Curt Levey asks “
Why Should We Fear Russian Political Ads?"
(op-ed, Aug. 17) when evidence is crystal clear that the entire Russian effort to manipulate the American electorate couldn't have been more than a drop in the ocean. The answer is equally as clear: The entire case against the legitimacy of Donald Trump’s presidency rests on Russian interference and Russian collusion with the Trump campaign narrative...
Harvard Kennedy School, Belfer Center
(blog): The author, president of the Committee for Justice, writes ... "Some perspective is in order. Facebook's announcement concerned the deletion of 32 pages and accounts that made ‘inauthentic attempts to influence political discourse’ by running some 150 ads on Facebook and Instagram between April 2017 and June 2018. The cost of the ads was $11,000, even less than the $46,000 … spent on Facebook ads during the 2016 campaign. Whether viewed in monetary terms (the official Clinton and Trump campaigns alone spent $81 million on Facebook ads) or reach (28 of the 32 removed pages and accounts had fewer than 10 followers), the deleted pages' influence on the American electorate could not have been more than a drop in the ocean. Likewise with the 2016 phase of the attack. For every 25,000 items the typical Facebook user saw in his news feed, only one came from the Russians..."
The Los Angeles Times
:
Curt Levey, president of the Committee for Justice, a conservative-leaning judicial advocacy group, said that “most of us on the conservative side of the debate are looking for a conservative judicial philosophy rather than conservative outcomes.” He called [U.S. 5th Circuit Court of Appeals Judge James Ho] “a rock-ribbed conservative when it comes to the law,” and said he could “understand why the left has flagged him.” But he said a judge’s personal riffs are not the binding opinions that matter from a legal point of view and pointed out that Ho is still bound by Supreme Court precedent, even if he disagrees with it. “At the end of the day, all judges have to follow [Supreme Court rulings] on abortion whether they like it or not,” Levey said...
The Associated Press
:
Kavanaugh’s concern is that agencies are assuming powers that belong to Congress and the judiciary, said Ashley Baker, director of public policy for the Committee for Justice, a conservative legal and policy advocacy organization. She said Kavanaugh’s nomination was a "big step in the right direction" of establishing the authority of courts to interpret federal laws instead of giving agencies a blank check when laws are ambiguous...
The Daily Signal
:
"Filling those vacancies in his first term is possible if Republicans keep the Senate," said Curt Levey, president of the Committee for Justice..."Democrats have not defeated a [Trump] circuit court nominee on ideological grounds...The question is whether it’s doable to fill these positions without consultation with Democratic senators." ...Blue slips...continue to stall nominees because the 9th Circuit includes so many blue states, Levey noted...
Harvard Political Review
:
Kavanaugh, by contrast, has demonstrated a relatively stable dedication to conservative ideology...Kavanaugh’s nomination, if successful, would thus give the Supreme Court a clear conservative tilt for “the first time since the 1930s,” Curt Levey, the president of the Committee for Justice, told
The New York Times
...
Washington Internet Daily
:
Committee for Justice Director-Public Policy Ashley Baker called Smith “an excellent addition to FTC leadership.” His experience at the intersection of privacy, data regulation and competition policy make him uniquely qualified, she emailed. "Projecting certain specific actions of companies or clients onto Smith’s qualification to serve in his new role on the FTC only prioritizes political posturing over much-needed experience..."
OneNewsNow
:
It's not Capitol Hill Democrats who are trying to find dirt by looking into the actions of Supreme Court nominee Brett Kavanaugh's wife – it's those in the press ...Curt Levey, president of The Committee for Justice, says that's out of line. "They're playing dirty...and you'll notice that the Democrats in Congress are not demanding records involving his wife because they know it's not appropriate – but there are no such limits on the press..." (Note: Interview originally broadcast by
American Family Radio
.)
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MORE FROM CFJ | SCOTUS CONFIRMATION PLAYBOOK
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Faced with Senate Democrats' unreasonable request for millions of pages of documents, a demand that would delay the hearing and force the Supreme Court to begin its term without a full bench, Sen. Grassley found a fair compromise that will provide the committee with a record volume of documents, including all genuinely relevant ones, without unduly delaying the hearing...
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...Senate Democrats and their allies will fight the nominee with a scorched earth policy. History, the importance of Kennedy's seat, and a political atmosphere in which even rank and file Trump supporters are called Nazis or otherwise demonized tells you all you need to know...With the demise of the judicial filibuster, the cooperation of Senate Democrats is no longer necessary to confirm a nominee. However, there are only 50 GOP senators after subtracting the ailing John McCain, who is battling brain cancer and absent from the Senate. Consequently, the all-Republican route requires keeping GOP senators completely unified...
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