Kavanaugh Parses Chevron Deference Views, Defends Net Neutrality Dissent During Hearing

Supreme Court nominee Brett Kavanaugh attempted to parse his views on deference by courts to agency expertise under the Chevron decision, saying he's not totally opposed to the precedent, during the Senate Judiciary Committee's Wednesday confirmation hearing session. Kavanaugh's views on Chevron as a judge on the U.S. Court of Appeals for the D.C. Circuit mean many in the communications sector believe he would raise the bar for FCC regulations (see 1807100020). Kavanaugh defended his dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC, as expected (see 1705010038 and 1808310045). Questions continued into the evening.

Sens. Orrin Hatch, R-Utah, and Amy Klobuchar, D-Minn., queried Kavanaugh on Chevron from opposing viewpoints. “I can understand why” it would be “appealing to an administration” to use it to “impose its policy preferences by avoiding the political process,” Hatch said. It’s a threat to the separation of powers because it transfers power from Congress and the judiciary to the executive branch.” He cited his sponsorship of the Separation of Powers Restoration Act (HR-76/S-1577) to reverse Chevron. Klobuchar believes the doctrine is “settled law” and noted her concerns about Kavanaugh's skepticism: “What would you replace it with?”

“I'm not a skeptic of regulation at all,” Kavanaugh testified. “I am a skeptic of unauthorized regulation, of illegal regulation, or regulation that's outside the bounds of what the laws passed by Congress have said.” He later resisted assertions, including from officials in President Donald Trump's administration (see 1807120062), that he has been leading the effort to rein in regulatory agencies. “I'm sure I've upheld agency decisions dozens and dozens and dozens and dozens of times” at the D.C. Circuit, he said. “I think my record will show I've ruled both ways.”

The standard “serves good purposes in cases” where there is “overlap” with the State Farm doctrine that an agency may rescind a rule originally promulgated via a notice-and-comment rulemaking process only by an entirely new proceeding, Kavanaugh said. He's concerned it has become difficult to determine “how much ambiguity is enough” for Chevron to apply. But courts should also “be careful not to unduly second-guess” agencies' decisions, Kavanaugh said.

Klobuchar pressed Kavanaugh on his USTelecom dissent, saying the now-repealed 2015 rules were “a bedrock of a free and open internet, allowing consumers and small businesses to have an equal playing field.” It “feels to me like Congress set up the FCC” to handle highly complex telecom policymaking and Kavanaugh attempted to “insert your judgment” the agency “lacked authority,” Klobuchar said. She noted his reliance on the major rules doctrine, which emphasizes the need for clear congressional authorization for major agency-driven rules.

Kavanaugh believes he was “bound to apply” the major rules doctrine at the D.C. Circuit because of its application in the Supreme Court's 2000 FDA v. Brown & Williamson Tobacco ruling and other instances. The high court says “it's OK for Congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect Congress to speak clearly before such a delegation,” Kavanaugh said: “That had not happened in my view” in the 2015 rulemaking.