Constitutional Freedoms

Law Prof Denies Claims Kavanaugh Will Destroy Federal Bureaucracy

Ohio State University's Chris Walker believes the nominee is someone who will rein in agency overreach

Image Credit: Alex Wong / Getty Images

Ohio State University law professor Chris Walker rebuked claims Tuesday that Judge Brett Kavanaugh, President Donald Trump’s U.S. Supreme Court nominee, will tear down the administrative state.

“My bottom line is that, if you were hoping for a deconstruction of the administrative state, as Steve Bannon said during the campaign, you’re going to be disappointed,” Walker said during an event in Washington, D.C. “Judge Kavanaugh is someone who cares deeply about administrative law and regulatory practice. I think some of the claims we’re seeing is a little bit fun.” Kavanaugh is pictured above.

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Walker points to a recent piece published by The Washington Post, which details Kavanaugh’s supposed battle against the administrative state. University of Maryland law professor Rena Steinzor is quoted in the article arguing that his appointment would be the end of the regulatory state because there will be no regulation he finds acceptable.

“That’s just not really an accurate reading of the record, and we have a very substantial record here. And with his over [a] dozen years on the court, he has written over 120 decisions that deal with administrative law,” Walker said. “While we won’t see a deconstruction of the administrative state, not to bury the lede, Judge Kavanaugh is someone who will rein in the administrative state.”

Walker was speaking at a panel discussion on Kavanaugh’s record hosted by The Heritage Foundation. Other panelists included additional law professors, including a couple of former clerks of Kavanaugh. The panel was particularly focused on looking at his prior rulings.

Kavanaugh has sided for and against federal agencies concerning the breadth of regulations. Walker argued that Kavanaugh has been consistent with his application of the law in that regard. Where he is likely to rein in agencies is within a principle known as Chevron Deference.

Chevron Deference states that agencies should interrupt laws they are tasked with enforcing over courts when they are ambiguous. Kavanaugh has been known to find laws unambiguous more frequently that many of his peers, which would leave agencies fewer opportunities to utilize that principle.

University of Virginia School of Law professor Michael Livermore recently wrote how his interpretation of administrative law could hurt the environment. The Environmental Protection Agency and other agencies often have to work with decades-old statutes to make newer regulations because of congressional inaction.

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“There have been some environmental law professors that have been concerned about the administrative state,” Walker said. “I actually agree with that. Getting back to where I started, Congress is not legislating. Agencies are using stale statutes that haven’t been updated in decades to make decisions that affect our everyday lives, and Judge Kavanaugh is not going to give that a free pass.”

President Donald Trump nominated him July 9 to replace retiring Justice Anthony Kennedy. He is expected to give the nation’s highest court a moderate conservative majority for the first time in decades. He has served on the U.S. Court of Appeals for the District of Columbia Circuit since 2006.

Kavanaugh has already faced a contentious nomination process. Democrats have been demanding thousands of documents from his time working for former President George W. Bush, with many refusing to meet with him. Sen. John Cornyn (R-Texas) and other Senate Republicans see the Democrats’ demand for Bush-era documents as nothing more than an attempt to delay the nomination process until after the midterm elections in November.

Kavanaugh served in the White House as a senior associate counsel and assistant to Bush. He was later able to navigate a Senate confirmation when the former president nominated him to his current post. Kavanaugh has his first confirmation hearing scheduled September 4.

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