Did Justice Kavanaugh Really Imply that the Nondelegation Doctrine Should be Reinvigorated?

In my essay on Thursday discussing last week's SCOTUS oral arguments regarding whether to overrule Chevron deference to administrative agencies, I contended that a claim by Justice Kavanaugh--that Chevron is destabilizing because it permits a Republican administration to change policy from a Democratic one and vice-versa without any change in statutory text--was not really aimed at Chevron but at the very notion of delegation of discretion to agencies. I explained that an express grant of such policy discretion allows just as much inter-administration switching, but that unless the Court were to insist on a very strict version of the heretofore almost toothless nondelegation doctrine, express grants of discretion are permissible. Thus, I concluded that Justice Kavanaugh's reasoning is of a piece with calls by some of his colleagues to return us to the pre-switch-in-time Supreme Court's restrictive nondelegation doctrine and thus severely undercut the regulatory state.

Thursday's essay received quite a lot of attention on social media, most of it positive, but some critical. Some of the "criticism" was simple trolling but I also encountered one thoughtful line of disagreement (from Prof Richard Re on X and also from an excellent lawyer I know via email). I'll summarize the disagreement and then explain why I think it is either mistaken or at most leads to a minor tweak to my argument.

As I explained on Thursday, Justice Kavanaugh described Chevron as destabilizing in response to SG Prelogar's argument that overruling Chevron would be destabilizing. Professor Re and the emailer went on to say that Justice Kavanaugh was not saying that the instability caused by Chevron was itself a reason to overrule Chevron. Rather, in their view, Justice Kavanaugh was simply parrying the SG's suggestion that reliance counsels in favor of retaining Chevron. Put differently, Justice Kavanaugh was saying only that if one concludes that Chevron is unsound in principle and/or unworkable in practice (the minimal bar for overcoming stare decisis), then reliance on Chevron should not count as a sufficient reason for nonetheless retaining Chevron, because the (supposed) instability caused by the inter-administration policy switching that Chevron allows more than cancels out any instability that would arise from overruling Chevron.

And if that's all that Justice Kavanaugh was saying, his argument doesn't imply that he wants to reinvigorate the nondelegation doctrine by overruling the post-1935/post-Schechter Poultry/Panama Refining cases that render it toothless. Instability caused by inter-administration policy switching would be a reason not to retain a decision one otherwise has grounds for overruling, but it would not, by itself, be a reason to overrule the modern nondelegation cases.

Are my critics right? Probably not, but even if so, my bottom line remains the same.

First, it's not at all clear to me that Justice Kavanaugh was simply making a defensive point about stare decisis. It's true that he introduced his claims about stability by reference to stare decisis, but he quickly went on to say that each new administration changes its policy using the flexibility conferred by Chevron 

because they have [a] disagreement with the policy of the prior administration and they're using what Chevron gives them and what they can't get through Congress to do it themselves, self-help, and to do it themselves unilaterally, which is completely inconsistent with bicameralism and presentment to get your policy objectives enacted into law.

At this point my interlocutors might say that the thing Justice Kavanaugh thinks the administration can't get through Congress is an express delegation and so it relies on Chevron to find an implied delegation. However, that's not the best reading of the statement. The statement is better understood to be a complaint that agencies are adopting substantive policies (like DACA, vaccine mandates, and student debt forgiveness) that they couldn't get through Congress. That's what conservatives typically complain about when they complain that agencies have done things "unilaterally," things that Congress didn't choose to do through bicameralism and presentment. That's a complaint about agencies exercising delegated authority, not a complaint that agencies have detected a delegation where Congress did not expressly delegate.

So I think I was right to hear Justice Kavanaugh to be talking about more than stare decisis and in a way that applies equally to express delegations.

But even if I was wrong--even if Justice Kavanaugh subjectively meant to be making a point only about stare decisis--it's pretty clear that what he said has the implications I noted. The argument that there's something problematic about changes in policy occurring every time there's a new administration has as a premise that it should be difficult to change policy, that such policy changes should have to go through the multiple veto gates associated with lawmaking via the arduous process of bicameralism and presentment laid out in Article I, Section 7. That's exactly the argument for limiting delegation more broadly.

Meanwhile, the constitutional grounds advanced for overruling Chevron look very similar to the grounds for strengthening the nondelegation doctrine. Both sets of arguments rely on a formalistic conception of separation of powers.

Overrule Chevron, conservative Justices and advocates say, because Article III gives "the judicial power" to courts; judicial power is, as Chief Justice Marshall said for the Court in Marbury v. Madison, the power to "say what the law is"; Chevron violates that fundamental principle because it authorizes executive branch (and even independent) agencies to say what the law is.

Strengthen the nondelegation doctrine, conservative Justices and advocates say, because Article I vests "all legislative power" enumerated in the Constitution in Congress; legislative power is, as Chief Justice Burger said for the Court in INS v. Chadha (in an opinion that emphasized the central role of bicameralism and presentment as brakes on too-easy lawmaking), the power to take actions, certainly including prescribing rules, that have the effect of "altering the legal rights, duties and relations of persons;" the toothlessness of post-1935 nondelegation doctrine violates that principle because it allows agencies to make such rules without strict guidance from Congress.

Justice Kavanaugh's paean to bicameralism and presentment, as well as his concern about unilateral agency action underscore the connection between the attack on Chevron and parallel efforts to rein in delegation. And of course, we know that this reactionary Court has its sights set on delegation because allowing broad delegation facilitates regulation, which is, of course, the ultimate target.

Although I am always happy to be corrected when I'm mistaken and to acknowledge my errors, my characterization of Justice Kavanaugh's handwringing over unilateral agency action and paean to bicameralism and presentment probably was not mistaken--and certainly was not mistaken in any way that matters.