Judge Kethledge Is the Best Choice to Curtail the Administrative State

The Trump administration has made a priority of shrinking the administrative state.  A recent study authored by the New Civil Liberties Alliance (NCLA), which is headed by the prominent constitutional-law scholar Philip Hamburger, concludes that “If President Trump wishes to appoint another justice who would respect the Constitution and shrink the administrative state, he would have a hard time—perhaps an impossible time—finding a better choice than Judge Ray Kethledge.”

Philip Hamburger is the nation’s leading scholar on rolling back the administrative state.  He literally wrote the book on the subject, authoring the seminal treatise Is Administrative Law Unlawful?  Professor Hamburger understands perhaps better than any other scholar the need to restore the proper balance between the executive, legislative, and judicial branches.

The NCLA study ranked each of the reported top six finalists for the current Supreme Court vacancy in the “order in which NCLA believes their opinions and/or scholarship both recognize the threat from unconstitutional administrative power and signal a willingness to uphold the Constitution against depredations from the administrative state.”  The NCLA used “exclusively the criterion of which judge is most likely to adhere to the Constitution’s constraints on the administrative state.”  Of all of the judges—including Kethledge, Brett Kavanaugh, Amy Coney Barrett, and Thomas Hardiman—Kethledge came out on top.

Judge Kethledge explained in a recent article that, because he believes a judge’s job is to apply the text of the law faithfully, he is deeply skeptical of doctrines that require deferring to executive agencies about the meaning of laws:  “Article III of the Constitution vests in Article III courts ‘[t]he judicial Power of the United States’—which means not some of it, but all of it.”

Judge Kethledge has authored powerful opinions rebuking the administrative state.  He castigated the EEOC for executive overreach in a decision called “Opinion of the Year” by the Wall Street Journal’s Editorial Page.  He smacked down the IRS for targeting conservative Tea Party groups in an opinion likewise acclaimed by the Wall Street Journal Editorial Board and legal scholars.  In Acosta v. Cathedral Buffet, Kethledge excoriated the federal Department of Labor for its “conceit of unlimited agency power.”  Judge Kethledge made clear that “The power of a federal agency is no more than worldly.  The Department should tend to what is Caesar’s, and leave the rest alone.”

In Meister v. U.S. Department of Agriculture, the Forest Service told Judge Kethledge that he had to defer to its interpretations of several laws (and to its finding that zero cross-country skiers would ever visit a park in northern Michigan).  Judge Kethledge wrote that the Service’s methodology was so groundless as to “debase the coinage of agency deference.”

An agency is not entitled to deference simply because it is an agency.  It is true that agencies are more specialized than courts are.  But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it.  And that means, among many other things, that the agency must apply—rather than disregard—the relevant statutory and regulatory criteria.

The NCLA study noted that “Curtailing a federal administrative state that has grown far too large and invasive promises to be one of the most enduring and valuable legacies of this administration.” And “President Trump’s first appointment to the U.S. Supreme Court, Justice Gorsuch, fit this mold beautifully.”

The study concluded, after an extensive review of Judge Kethledge’s judicial opinions and scholarship, that “Pairing a Justice Kethledge with Justice Gorsuch would establish a solid beachhead on the Supreme Court, signaling to lower court judges that they can go on record with their views about Chevron deference and constitutional constraints on administrative power.”

Reader Discussion

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on July 08, 2018 at 19:29:19 pm

If he is good enough for Hamburger, he is good enough for me.

I would think that a combination of Gorsuch, Kethledge AND Thomas may be able to undo the damage done by chevron, Auer, etc.

Anyone have any thoughts on Kagan. My recollection was that while on the lower Court, she was not a devotee of agency deference? Is my recollection correct?

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Guttenburgs Press and Brewery
on July 09, 2018 at 13:26:26 pm

As seems to be the consistent preference of "thinking Americans," we are again "talking" about dealing with symptoms and "side effects" of social (and thus, political) disorder, rather than the underlying "disease" or dysfunction.

"We" (the thinkers) are ready to call upon the judiciary to ameliorate the impacts - especially on individual liberty - of the **operations** of an Administrative State, which by its dispersal of powers (throughout "bureaucracies") has largely displaced the dispersal of power over population segments in Democracy, which latter, provides for re-aggregation of those powers by "democratic" processes not available to the Adminstrative - in our "republican" format.

If the judiciary, and any of its incoming components, were to be called upon to actually "curtail" the Administrative State, the tasks would need be directed at the legislature's responses to the desires (sometimes demands) of the populace and its ever declining participating electorate for the use of the mechanismms (and coercions) of government as means to specific ends - "extra constitutional" objectives and purposes, benefits, amelioration of burdens, privileges and immunities; all of which require "Administration." [Why else do we have an Administrative State"]

To move in that direction, the judiciary, must first abjure its own construct - "The Interest of the State," and reconfirm that only "the people," indivduals and groups, have interests.

Can additional judges do that? Will they? NBL!

Good luck with the dermititus. The internal bleeding will go on a bit longeras the legislators (see, "Hearings" on C-Span) grind more glass for our political diet.

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R Richard Schweitzer
on July 09, 2018 at 20:25:24 pm

I quickly found one DC Circuit case, Holder v. Martinez Gutierrez, an immigration case in which Kagan, writing for the majority, stated that the statute was ambiguous and based the decision in support of the agency on Chevron deference to the statutory interpretation by the Board of immigration Appeals.

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Image of Pukka Luftmensch
Pukka Luftmensch
on July 09, 2018 at 20:38:07 pm

2d thought: I would place no reliance on Kagan's vote to undermine Chevron and its progeny. More likely for her is a situation in which she favors deference if she agrees with the result and opposes it if the agency's interpretation leads too an outcome she dislikes.

Justice Scalia admitted that when asked he told Obama, "Send us Alana Kagan." I think Justice Scalia a great man with poo legal judgment about women lawyers and judges of whom he was personally fond for whatever psychological reasons.

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Pukka Luftmensch

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