The Regulatory State vs. the Rule of Law

The Regulatory State vs. the Rule of Law August 16, 2018

The problem with federal regulations goes beyond their effect on businesses and whether they are overreaching in one case or another.  The bigger issue is what they do to Constitutional government.

Federal agencies, as part of the Executive Branch, have the power to formulate regulations that have the force of law.  So much for the Legislative Branch.  They also have the power to punish you for violating them.  So much for the Judiciary Branch.

This is a serious violation of the Constitutional separation of powers.  It gives the Executive Branch legislative and judicial powers.  In effect, it means that the Executive Branch can rule the country apart from law and due process.  That is another way to describe tyranny.

To be sure, the Legislature and the Judicial branches have been complicit in this usurpation.  Congress has purposefully passed vague laws, expecting the bureaucracy to fill in the blanks as it enforces them, and judges have gone along by deferring to the Executive Branch.

But Supreme Court nominee Brett Kavanaugh has fought this trend, expressing a strong opposition to this Constitutional usurpation.  He has expressed this in scholarly articles and in written dissents when he has disagreed with other judges.

Now Democrats opposing his nomination are expressing outrage that he opposes restrictions on big business and on environmental rules, completely glossing over what he says and what issues are at stake.

But if he gets confirmed, a conservative majority on the Supreme Court might roll back this Constitutional confusion.

Read this Associated Press story on Kavanaugh’s position on the “Administrative state.”  From Sudhin Thanawala, Supreme Court Nominee Takes Hard Line on Federal Regulations (AP):

In a dissent last year as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh cited Supreme Court decisions in claiming that agencies can regulate “major social or economic activities” only if Congress clearly allows them to do so. Placing controls on cigarettes, banning physician-assisted suicide and imposing rules on greenhouse gas emitters are examples of such major action, he said. . . .

Under a widely followed judicial philosophy, courts generally step aside and give agencies broad leeway when a law is unclear. Kavanaugh, though, advised judges in a 2016 Harvard Law Review article to instead “seek the best reading of the statute” to see whether the regulation fits with it.

He said this would “help prevent a runaway executive branch that exploits ambiguities in governing statutes to pursue its broad policy aims, even in situations where Congress has not enacted legislation embodying those policies.”

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. . . .

Kavanaugh is critical of a standard known as the Chevron doctrine, established by a 1984 Supreme Court ruling. Under Chevron, courts mostly defer to experts at the federal agencies when deciding whether regulations are consistent with law. The idea is that Congress often writes ambiguous laws, so agencies have to craft regulations to fill in the details.

[Keep reading. . .]


Photo of Judge Brett Kavanaugh by U.S. Court of Appeals for the District of Columbia Circuit [Public domain], via Wikimedia Commons

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