Placing Judge Kavanaugh on the Supreme Court would be good for personal liberty and the economy. He demonstrates great skepticism of the “administrative state” and the penchant in recent decades for presidents and federal agencies to impose regulations on issues where Congress has been silent or simply disagrees with the president.
President Obama acted without legislative direction to create a whole class of legal rights — pertaining to residency, higher education and employment — for adults brought illegally into the United States as children— “Dreamers.”
Mr. Obama’s EPA unilaterally set limits on greenhouse gas emissions — something he could not persuade Congress to authorize. And Mr. Obama went far beyond the authority in federal statutes and judicial precedents by imposing racial preferences in college admissions, and mocked the constitutional rights by encouraging limits on free speech and imposing rape tribunals at universities that violate established rules of evidence and protections for the accused.
Often, federal administrative law and liberal judges require a subsequent president to go through elaborate public hearings and court challenges that make it difficult for sitting presidents to reverse the unilateral edicts of prior presidents and regulatory agencies — consider the courtroom obstacles President Trump faces ending the DACA program.
Two sets of issues — one legal and another economic — are at play. Together they will determine how free and prosperous America will be in the coming decades.
Often, Congress cannot write precise rules into statutes — issues are too complex and good policy choices change as market structures and scientific knowledge evolve. For example, the FDA, subject to goals set out in law, determines which drugs are legal for sale and how tightly some medications, such as opioids, are controlled.
That is quite another thing from the legislative authority presidents and bureaucrats have arrogated as a consequence of a 1984 Supreme Court decision involving the EPA and Chevron U.S.A. It states that when a law is unclear the court should defer to a reasonable interpretation by the federal agency applying the law.
Mr. Obama, reflecting the interests of anti-free market, increasingly socialist elements of the emerging Democratic Party, appointed left leaning judges to help impose a European-style regulatory order and constraints on civil liberties — consider the strict controls on academic freedom now imposed at many universities and what is acceptable speech among employees of businesses.
Practically speaking, most new EU laws require consensus among its 28 member governments — a cumbersome and inadequate process. What has evolved is an administrative state that imposes rules — for example, proclaims all manner of business standards, antitrust policy rules and limits on individual states’ tax policies—all with limited judicial oversight and often with a bias against non-European interests. Ask Amazon and Apple about the treatment they received on tax disputes or the terribly large fines Google must pay on accusations of monopolization.
The reams of regulations imposed on member states are costly and often primarily serve the purpose of expanding the reach of the Brussels bureaucracy and its statist impulses. Ultimately, that burden and bias instigated support for Brexit among some Conservative MPs.
Judge Kavanaugh’s record reveals a deep suspicion of presidential and government agency overreach. Last year he reviewed FCC net neutrality rules based on the reasoning that internet service providers are public utilities and could not split the internet service into fast and slow lanes.
Though the DC Circuit sided with the FCC, Judge Kavanaugh dissented “Congress never enacted net-neutrality legislation or clearly authorized the FCC to impose common-carrier obligations on Internet service providers.”
In a Harvard Law Review article he wrote “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” and he has written some 40 opinions finding federal agencies actions to be unlawful or cursory in its actions.
Historically, Americans enjoyed greater protection of their civil liberties from an aggressive state and more robust economic growth than heavily regulated continental Europeans. Mr. Obama and the ascendant socialist wing of the Democratic Party sought to narrow those differences and no surprise, our society has grown more restive, divided and less tolerant of individual liberty.
The true legacy of President Trump will be in the appointment of justices — like Judge Kavanaugh — who reverse the damage, preserve freedom and enable the civic and economic benefits that follow.
• Peter Morici is an economist and business professor at the University of Maryland, and a national columnist.
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