Saturday, September 8, 2018

Judge Kavanaugh, Supreme Court Nominee, on Constitutional and Statutory Interpretation (Including Chevron) (9/8/18)

This week's confirmation hearings for Judge Kavanaugh, Trump's nominee to the Supreme Court, covered some issues that are near and dear to tax procedure enthusiasts.  Two are:

1.  Originalism.  

Judge Kavanaugh pronounced that originalism is “constitutional textualism, meaning the original public meaning of the constitutional text.”  So, as articulated, that would be the public meaning at the time the constitutional provision in issue was included in the constitution.  That is a stark statement of originalism.  In fact, originalism has many shades, some of which permit other considerations in interpreting the constitutional text.  For example, Judge Kavanaugh himself qualified his definition by saying that the original public meaning is “informed by history, tradition and precedent.” I think he means that he is willing to consider something that may not be exactly the original public meaning.  I think that, with that caveat, all justices and perhaps all judges are originalists.

I transcribed the quotes in the above paragraph from the video clip Will Baude, The Best Parts of the Kavanaugh Hearing (The Volokh Conspiracy 9/5/18), here.

Since the analog for originalism is textualism, I have revised my discussion in the working draft for the next edition of the Federal Tax Procedure Book.  Most of the revisions are to some footnotes, so I include the text and some of the footnotes at the end of this blog.

2.  Chevron.

Judge Kavanaugh is not a fan of Chevron deference to agency interpretations.  I generously quoted and cited from Judge Kavanaugh's article, Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) ,in my paper IRS Guidance – Rulemaking and Deference to IRS Statutory Interpretationhere,, so I won't get into that right except to note that, at the end of the article, I discussed the political / ideological winds against Chevron, concluding that ridding statutory interpretation of Chevron deference may be a bad idea whose time has come.  If Chevron meets its end or substantial retreat, I am sure Judge (presumably then Justice Kavanaugh) will make his contribution.

I also recommend to readers this informative commentary posted during the hearings:  Cary Coglianese, The Ambiguity in Judge Kavanaugh's Chevron Critique (The Regulatory Review 9/6/18), here.  A key excerpt:
Despite his overarching criticism of Chevron, Judge Kavanaugh does acknowledge that actually “Chevron makes a lot of sense in certain circumstances”: 
It affords agencies discretion over how to exercise authority delegated to them by Congress. For example, Congress might assign an agency to issue rules to prevent companies from dumping “unreasonable” levels of certain pollutants. In such a case, what rises to the level of “unreasonable” is a policy decision. So courts should be leery of second-guessing that decision. The theory is that Congress delegates the decision to an executive branch agency that makes the policy decision, and that the courts should stay out of it for the most part. That all makes a great deal of sense. 
Perhaps senators and the rest of us will be forgiven for thinking that what makes great sense to Judge Kavanaugh sounds an awful lot like the Chevron doctrine.