Court’s Chevron Ruling Shouldn’t Be Over Read, Kavanaugh Says

Justice Brett Kavanaugh said the Supreme Court’s decision last term, which undercut the power of federal agencies, shouldn’t be over read.

The court in June overturned Chevron, a 40-year-old precedent that directed lower courts to defer to an agency’s reasonable interpretation when a law is ambiguous. What the court did in the case, known as Loper Bright Enterprises v. Raimondo, “was a course correction consistent with the separation of powers to make sure that the executive branch is acting within the authorization granted to it by Congress,” Kavanaugh said.

“To be clear, don’t over read Loper Bright,” Kavanaugh said, while speaking at Catholic University of America Columbus School of Law in Washington on Thursday. “Oftentimes Congress will grant a broad authorization to an executive agency so it’s really important, as a neutral umpire, to respect the line that Congress has drawn when it’s granted broad authorization not to unduly hinder the executive branch when performing its congressional authorized functions, but at the same time not allowing the executive branch, as it could with Chevron in its toolkit, to go beyond the congressional authorization .”

Kavanaugh, who was appointed by President Donald Trump in 2018, talked about his time working for the George W. Bush administration in the White House as associate counsel to the president and then as staff secretary. He said he saw firsthand how hard it is for presidents to get big legislation through Congress and the pressure there is on the agencies to “push the envelope,” when it comes to regulating, which Chevron facilitated.

“Even if the agency thought this is not the best reading of the statute, there would be pressure to go forward,” Kavanaugh said, adding that judges would then uphold the regulation under Chevron when they thought the executive was acting beyond the scope of the statute.

Kavanaugh’s appearance came a little over a week before the justices are scheduled to take the bench again for the start of a new Supreme Court term.