Since Judge Brett Kavanaugh was nominated to the Supreme Court, much has been made of his 2017 dissent from denial of rehearing in US Telecom Association v. FCC. The dissent would have invalidated the Federal Communications Commission’s Open Internet Order, which some have cited as evidence that Judge Kavanaugh opposes net neutrality. Less attention has been given to his reasons why. A closer look at his opinion tells us little about Kavanaugh’s views about proper network management practices. But it does tell us he believes the judiciary should be vigilant against power grabs by the executive branch — a belief that should appeal to critics of the current administration.
It is a cornerstone of administrative law that agencies derive their authority from Congress and therefore must stay within the boundaries set by statute. Of course, statutes do not always provide crystal-clear instructions. The Chevron doctrine says that when the meaning of a statute is ambiguous, the court must defer to the agency’s reasonable interpretation.
This doctrine stems in part from the assumption that Congress intended the agency, not the court, to fill the gaps in the framework it has established. But there is a “major questions” exception to Chevron: The Supreme Court has explained that courts should hesitate to assume that Congress intended deference in cases involving major questions affecting a significant portion of the American economy. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” As another case explained in a related context, Congress “does not hide elephants in mouse holes.”
This concern about the limits on agency authority animated Judge Kavanaugh’s dissent in US Telecom Association. Contrary to some activists’ criticism, Kavanaugh expressed no views on the wisdom of net neutrality — because it was simply not his job to do so. In fact, he wrote explicitly that “the net neutrality rule might be wise policy.” His concern was whether Congress gave the FCC the power to enact such rules: “Even assuming that the net neutrality rule is wise policy, congressional inaction does not license the Executive Branch to take matters into its own hands.”
The Communications Act’s Title II common carriage regime was drafted in 1934 to regulate the Bell Telephone monopoly. Congress last updated it in 1996, when only 50 percent of us had internet access and most who did used dial-up. Congress could not have anticipated the extent to which the internet would displace such a significant portion of modern life. Against this backdrop, Judge Kavanaugh concluded that the major questions exception required the court to hesitate before concluding that Congress intended the FCC to interpret this long-extant statute in a new way that granted it bold new regulatory authority over such a significant portion of the economy. It was, to say the least, a decision of “vast economic and political significance.”
In essence, the majority disagreed with Judge Kavanaugh about the level of scrutiny that courts should apply to agencies. Here and elsewhere, Kavanaugh has showed a willingness to look closely at agencies and ask tough questions rather than simply rubber-stamp their conclusions. And while this case involved an Obama administration rule, he has shown the same skepticism to Republican agency decisions. As I’ve written in a related context, this skepticism is consistent with the DC Circuit’s historical institutional identity, as a court unafraid to engage in close, careful analysis of agency claims — though in this sense Judge Kavanaugh breaks from the late Justice Antonin Scalia, who was a fierce proponent of agency deference. But criticism of Judge Kavanaugh from the left seems odd: One would think that activists fearful of the Trump administration’s agenda would welcome one championing closer scrutiny of agency decision-making.
Kavanaugh also disagreed with the majority about the role of the First Amendment in the case. Kavanaugh argued that, as a conduit transmitting speech, broadband providers had a constitutional right to editorial control, which the net neutrality rules abridged without satisfying the appropriate constitutional standard. The majority agreed that broadband providers have First Amendment rights but found those rights unabridged when applied only to companies that voluntarily committed to providing access to all or virtually all internet access points — effectively making the rules a consumer protection measure to assure customers were getting the service that providers promised. This dialogue reflects a reasonable disagreement about the scope of the order but not a clash over fundamentals of tech policy.
Thus, it is a misreading to suggest Judge Kavanaugh’s decisions signal his views on tech policy, as opposed to a clear view of the judiciary’s role vis-à-vis the administrative state. The modern presidency wields an unprecedented amount of political power — accompanied by a significant risk of abuse. Judge Kavanaugh’s commitment to separation of powers is both a response to and a panacea for this risk. As he indicated in his opening remarks, “The Supreme Court is the last line of defense for the separation of powers, and the rights and liberties guaranteed by the Constitution.” Activists of all political stripes should welcome Judge Kavanaugh’s willingness to scrutinize closely administrative claims to power, which helps assure that agencies operate within the confines of their congressional mandates rather than freelance at the edge of their authority.
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