Environmentalists are worried about Judge Brett Kavanaugh, Donald Trump’s nominee for the Supreme Court. According to David Savage of the Los Angeles Times, “Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Trump has departed.” Pat Gallagher, legal director for the Sierra Club, goes perhaps further:
“He would be a disaster for the environment. He has a disdain for regulation, particularly from the EPA. Kennedy was the swing vote in this area. If we have to wait for Congress to act on climate change, we are doomed.”
The last sentence gives the story away. Environmentalists haven’t been able to convince Congress to pass the legislation they think is necessary so they have been relying, during the Obama administration, on federal agencies, especially the EPA, to do what they want. What environmentalists don’t like about Judge Kavanaugh is that he has been skeptical of federal agencies doing things that are arguably beyond what Congress has authorized them to do and that, ultimately, he is unwilling to let policy ends prevail over the means of proper process.
The question, rather, is what deference one should give to a federal agency’s regulations and to an agency’s own interpretations of how much power it has. Once the Republicans took control of the House in the 2010 election, Democrats started to rely on federal agencies to pursue their policy agenda. Barack Obama had much the same view as Mr. Gallagher, when the President said: "We can't wait for Congress to do its job, so where they won't act, I will." And so, the bureaucracy and the agencies acted. In due course, cases were brought challenging some of those actions, and eventually some of those cases came before the court on which Judge Kavanaugh sat.
But in spite of what the Sierra Club and others seem to think, Judge Kavanaugh’s decisions in those cases were not based on whether he liked the particular policy that the EPA, or other federal agency, adopted. Rather, his decisions were based on whether he thought that what the agencies were doing was within the power delegated to them by Congress.
One gets the impression some people don’t care about that question. The only thing that counts is the policy they want, and they will use whatever legal theory necessary to get that policy.
What they are missing, however, is that while a theory allowing federal agencies broad discretion may be good from a policy point of view when the Democrats control the agencies but not Congress (which is what we had for the last six years of the Obama administration), it can go the other way if the situation is reversed. What if the Democrats take control of Congress in November? President Trump’s appointees will continue to run the bureaucracy and the agencies. And I can assure you that, if Congress won’t do what President Trump wants, he will have no compunction about having the bureaucracy and agencies do it anyway. At that point, Democrats might want a judge who is skeptical about federal agencies acting beyond the powers and discretion that Congress gives them.
Personally, I like the idea of courts looking at the question of whether the bureaucracy is doing things beyond what Congress has authorized
Comments