Justice Kavanaugh Lays Out His Roadmap In FCC. v. Consumers’ Research
Justice Kavanaugh’s concurrence in FCC v. Consumers’ Research is one of his most significant separate writings. He lays out a roadmap for how he sees the separation of powers, and in particular the removal power cases.
First, as I was reading Justice Kavanaugh’s concurrence, I could hear the voice of a former White House lawyer. Indeed, Kavanaugh stresses how former Justices who served in the Executive Branch Court accepted the “intelligible principle” test:
Notably, the intelligible principle test was accepted and applied over the years by Justice Scalia, Chief JusticeRehnquist, and Chief Justice Taft—three jurists who, based on their Executive Branch experience and judicial philosophies, deeply appreciated the risks of undue judicial interference with the operations of the Presidency.
Second, Kavanaugh repeats at several points that the deferential “intelligible principle” test respects the separation of powers. How? To ensure the President has the latitude to faithfully execute the laws:
To be clear, the intelligible principle test is not toothless. But it does operate in a way that respects the President’sArticle II authority to execute the laws—that is, to exercise discretion and policymaking authority within the limits setby Congress and without undue judicial interference. See, e.g., Whitman, 531 U. S., at 472–476; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate”).
It’s not just about Congress, it is also about the President.
Third, Kavanaugh suggests that there is less of a need to reinvigorate the non-delegation doctrine, in light of the Court’s precedent decisions overruling Chevron and expanding the major questions doctrine.
Second, many of the broader structural concerns about expansive delegations have been substantially mitigated by this Court’s recent case law in related areas—in particular (i) the Court’s rejection of so-called Chevron deference and (ii) the Court’s application of the major questions canon of statutory interpretation. Cf. Paul v. United States, 589 U. S. ___ (2019) (statement of KAVANAUGH, J., respecting denial of certiorari).
As I’ll explain another post, I think Justice Kavanaugh has signaled that the Gundy moment has passed. We’re stuck with “intelligible principles.”
Fourth, Kavanaugh explains that the non-delegation doctrine has no place in the context of foreign affairs.
Third, in the national security and foreign policy realms, the nondelegation doctrine (whatever its scope with respect to domestic legislation) appropriately has played an even more limited role in light of the President’s constitutional responsibilities and independent Article II authority. See Loving, 517 U. S., at 772–773; Youngstown,
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