Judge Kavanaugh’s Activist Vision of Administrative Law

Last October, Judge Brett Kavanaugh told the Heritage Foundation that statutory interpretation ideally “should be neutral, impartial, and predictable among judges of different partisan backgrounds and ideological predilections.” But he acknowledged that this is not the reality today. The Chevron doctrine that reviewing courts should defer to reasonable agency interpretations of ambiguous statutory terms is too malleable, according to Judge Kavanaugh. If judges like what agencies have done, they can find a statutory ambiguity that justifies judicial deference. If not, they can declare that the agency’s underlying statutory authority unambiguously bars the agency’s action. Yet this perceptive insight on Chevron comes from a judge who rarely defers to agency action.  Judge Kavanaugh acknowledges that “no definitive guide exists for determining whether statutory language is clear or ambiguous.” He candidly admits, “I tend to be a judge…

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