Trump's Judge Picks Reflect Desire to Rein in Courts' Views of Regulatory Power, White House Counsel Says
President Donald Trump is continuing to select his federal judiciary nominees -- including Supreme Court nominee Brett Kavanaugh -- based in part on their views about what the president views as the overly broad legal underpinnings of regulatory agencies' power, including the Chevron and Auer/Seminole Rock doctrines, said White House Counsel Don McGahn Thursday at a Media Institute event. Trump nominated Kavanaugh Monday to replace retiring Justice Anthony Kennedy, raising expectations he will seek to rein in Chevron deference to agency expertise and influence the court's rulings on industry First Amendment free-speech rights and net neutrality (see 1807100020). Kavanaugh's meetings on Capitol Hill with senators continued Thursday, including with Sen. Shelley Moore Capito, R-W.Va.
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McGahn, helping shepherd Kavanaugh's Hill meetings, didn't speak extensively on the nominee. Kavanaugh may one day “confront” some of the issues surrounding regulators' place within the executive branch and court rulings on their decisions, McGahn said. “There is a sea change going on,” with the Trump administration's backing, “within the regulatory agencies and the courts” to “get back to the fundamentals” of strictly adhering to the letter of the statutes that created agencies like the FCC, McGahn said: Those agencies have “over decades and decades and decades” usurped Congress' legislative power and have sought to “fill in” legislative gaps.
Most of Trump's circuit court nominees for that reason commonly have experience working in administrative law, appellate courts and have been involved in lawsuits involving regulatory agencies, McGahn said. He cited the administration's concerns about Chevron and Auer/Seminole Rock, in which a court will defer to the promulgating agency’s reigning interpretation of a regulation in cases where the regulation's language is ambiguous. Trump's court appointees are also “well steeped in these doctrines,” McGahn said. Justice Neil Gorsuch helped pave the way for change on Chevron deference, having spoken “in very clear terms” about the doctrine that “got our attention” ahead of nomination last year (see 1702010028), McGahn said.
This administration also tried to stem regulatory overreach via executive actions and by appointing agency heads who aren't aiming to “monetize” their time in government by promulgating “a massive regulatory scheme” and then using their knowledge of how new regulations work to later enrich themselves in the private sector, McGahn said. “That needs to stop.” Trump's orders include one from January 2017 directing that two existing regulations be identified for elimination in connection with every new regulation issued in FY 2017 and beyond (see 1701300037). McGahn also cited Trump's February 2017 order requiring agencies to establish what the administration is calling regulatory reform task forces (see 1702240064).