Opposition to Judge Brett Kavanaugh’s appointment to the Supreme Court has almost nothing

to do with the nominee himself, who is regarded by almost all serious observers as
exceptionally accomplished, experienced, and judicious. He is opposed because his nominator is
Donald Trump, and he is opposed because some Democrats feel cheated that President
Obama’s 2016 nominee, Judge Merrick Garland, was never given a hearing or a vote. As a
practical political matter, that is all that needs be said about the Kavanaugh appointment.
Nonetheless, serious issues will be discussed, and one of the most serious and most discussed
will be something known to lawyers as the “Chevron doctrine.”

What is the Chevron doctrine? It is the idea that in litigation over federal agency action, the
courts will defer to the agency’s own construction of its operating statute, unless that
construction is outside the range of reasonableness, usually because the meaning of the statute
is clear. The effect is to give the executive branch considerable leeway in determining the scope
of its own power. Although first announced in 1984, Chevron deference has become a central
pillar of the modern administrative state. It is a systemic thumb-on-the-scales in favor of the
government’s view of the meaning of the statute, even if that view changes with political winds
and even if it contradicts earlier judicial interpretation.

For just one recent example, the federal Board of Immigration Appeals ordered the deportation
of a lawful permanent resident under a statute that calls for removal of persons convicted of
“child abuse.” The agency interpreted “child abuse” to include driving under the influence with
a child in the car not wearing a seat belt. Just a few days ago, a federal appellate court upheld
this order under Chevron – even though “child abuse” is a term that, to most people, connotes
a far more hateful and intentional crime. (Martinez-Cedillo v. Sessions (2018)). Obviously, this
kind of interpretation can easily shift from administration to administration, effectively
converting written law passed by Congress into variable policy molded by executive agencies.
Other examples include educational policy, environmental law, transgender issues, patents,
election contributions, and health care.

The Chevron doctrine is particularly important when the question is the scope of the agency’s
own authority. In the modern administrative state, Congress delegates vast swathes of policy-
making power to the regulatory agencies, and the courts no longer even attempt to ensure that
the key policy choices are made by the legislative branch. The only practical limitation on
excessive delegation is to construe delegations of power strictly, to ensure that the agencies
exercise only the quantum of power Congress explicitly delegated to them. Chevron goes the
opposite way: it green-lights agency assertions of power, even when it is fairly obvious from the
context that Congress had no such intention, so long as the words of the statute can be
reasonably stretched to accommodate them.