How Brett Kavanaugh Is Putting His Thumb on the Scale for Trump
The intelligible principle test, he noted at one point, was “accepted and applied over the years by Justice [Antonin] Scalia, Chief Justice [William] Rehnquist, and Chief Justice [William Howard] Taft,” whom he described as three jurists with executive branch experience who “deeply appreciated the risks of undue judicial interference with the operations of the presidency.” This sort of judicial name-checking is weird and unpersuasive in a formal opinion because the argument itself, not the person making it, is what actually matters. Only if you’re trying to persuade your fellow guests at the next Federalist Society gala that this decision is a defensibly conservative one do the other justices’ identities matter.
Kavanaugh also opined that there was not as much need for a rigid test because the Supreme Court had other tools to use to enforce the separation of powers. He pointed to the demise of the Chevron doctrine last summer and the rise of the major-questions doctrine as evidence that “many of the broader structural concerns about expansive delegations have been substantially mitigated.” The court’s conservative majority, in other words, has plenty of finer-wrought weapons to wield against disfavored regulations and policies without relying upon the blunt instrument of nondelegation.
As part of this throat-clearing exercise, Kavanaugh then offered a limiting principle to the major-questions doctrine. That doctrine generally holds that Congress must “speak clearly” when authorizing federal agencies to regulate on matters of “vast economic and political significance.” The doctrine’s vague phrasing, combined with Congress’s habit of legislating in broad terms, effectively gives the court a freewheeling veto over policies it doesn’t like. To that end, the six conservative justices have used it in recent years to quash all manner of policies from Democratic presidents, from the provision of student-loan debt relief to the regulation of carbon emissions from power plants.
