Brett Kavanaugh protege urged SCOTUS to target agency powers

By Niina H. Farah | 05/15/2023 07:18 AM EDT

D.C. Circuit Judge Justin Walker has played a key role in cases where the Supreme Court has — or could soon — limit the federal government’s ability to craft robust climate rules.

WASHINGTON, DC - MAY 06: Judge Justin Walker testifies before his U.S. Senate Judiciary Committee confirmation hearing on his nomination to be a U.S. Circuit Court judge for the District of Columbia Circuit on Capitol Hill on May 6, 2020 in Washington, DC.

Judge Justin Walker testifies before his Senate confirmation hearing on his nomination to be a U.S. Circuit Court judge for the District of Columbia Circuit in May 2020 in Washington. Jonathan Ernst - Pool/Getty Images

A Trump-appointed judge on the nation’s second-most-powerful bench is making the case for curbing federal agencies’ regulatory authority — and his views may be finding sympathetic ears on the conservative-dominated Supreme Court.

Judge Justin Walker, a former clerk for Supreme Court Justice Brett Kavanaugh who now serves on the U.S. Court of Appeals for the District of Columbia Circuit, has made clear in a trio of recent dissents that he would like to see new guardrails placed on Chevron deference, which says courts should lean toward favoring agencies’ reading of their power to regulate when a law is ambiguous.

The Supreme Court — which rejects most cases that come its way — agreed in a May 1 order to review one of those cases, indicating that it may be prepared to heed Walker’s calls on Chevron. The court’s move comes on the heels of its decision last year in West Virginia v. EPA to breathe life into the “major questions” doctrine, which says Congress must clearly authorize agencies to regulate important matters — a ruling that echoed a dissent from Walker in an earlier iteration of the case.


Walker’s Chevron dissent could be influencing members of the high court who share his views on reducing the power of administrative agencies, said Aaron-Andrew Bruhl, a law professor at William & Mary Law School.

“The substance of his opinion can be a test run or a preview of the way that those justices might want to decide the case,” said Bruhl.

Once favored by Republican-appointed jurists like the late Justice Antonin Scalia, Chevron deference, established in the case Chevron USA Inc. v. Natural Resources Defense Council, has recently fallen out of favor with certain conservatives who see it as an avenue for government overreach. But instead of overturning the doctrine, the Supreme Court has for years stopped using it to uphold federal rules.

This month, however, the Supreme Court agreed to revisit Chevron in a case called Loper Bright Enterprises Inc. v. Raimondo, in which the D.C. Circuit used the doctrine to uphold a fishery management rule over Walker’s objections. The court’s ruling — expected by next summer — could potentially set new limits on agencies’ discretion to craft environmental rules on issues ranging from protecting endangered species to curbing power plant emissions.

In his dissents on Chevron, Walker asks for the D.C. Circuit — and other courts — to take more time to consider whether a statute is ambiguous, said Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania.

The ambiguity test is known as the first step of Chevron deference. If a court finds the statute is unclear, then it will move to step two: did the agency properly interpret the law?

“It may well turn out that the approach that he’s taken in these cases is similar to what the court will do in the case before it now,” said Coglianese of Loper Bright. “And that is to linger a long time at step one and decide [the case] at that level.”

He noted that Walker’s view of the doctrine lines up with statements from Kavanaugh, who has a close relationship with the D.C. Circuit judge. Walker’s approach wouldn’t mark a change for the Supreme Court, which has decided many cases based on whether or not a statute is ambiguous, Coglianese said.

Walker’s dissents could be influential in that they are directing the justices’ attention to how the D.C. Circuit is applying Chevron deference — which is still alive and well in the lower benches — compared to the Supreme Court, said Bruhl.

“He will even cite previous opinions or articles by [Justice Neil] Gorsuch or Kavanaugh,” said Bruhl. “He has the ability to signal to them, ‘Hey, this is a case that you might want to look at.'”

The justices in turn may find it useful to have Walker’s dissent as a future citation, said Louis Virelli, a law professor at Stetson University.

Calling back to other judges’ writings helps justices “tee up issues they can then adopt in opinions of the court,” he said.

‘They pay particular attention to his dissents’

Administrative law experts say it is difficult for any single lower court judge to hold special sway over the Supreme Court.

Writing a dissent to persuade justices is “a little bit like swinging for the fences,” said Coglianese.

But Walker’s Chevron views may find a receptive audience at the high court because they reflect how certain conservative justices already view the judiciary’s proper approach to statutory interpretation.

“The court could say, ‘We never intended step one [of Chevron] to override the judges’ responsibility to make a serious effort to find the right interpretation,” said Coglianese.

E. Donald Elliott, a professor at Yale Law School, said Walker may in fact hold particular influence over the high court.

Walker is regarded as “an intellectual leader, particularly on the conservative side of the D.C. Circuit,” Elliott said.

“With a relatively conservative Supreme Court, I think they pay particular attention to his dissents,” Elliott said. “In terms of getting a case on the Supreme Court docket, having a dissent by Walker is probably very helpful.”

‘Chevron maximalism’

Legal observers note that Walker in his Chevron dissents doesn’t appear to advocate for completely scrapping the doctrine.

“I don’t read him in any of these dissents to necessarily deny the overarching framework of Chevron per se,” Coglianese said. “He doesn’t call for its abandonment entirely.”

He compared Walker’s Chevron position with the “very full-throated, detailed critique” of the doctrine that then-Judge Gorsuch wrote in a concurring opinion — that accompanied his own majority ruling — in a 2016 immigration case while he was sitting on the 10th U.S. Circuit Court of Appeals.

“Nothing that Judge Walker has written in the dissents in any of these cases has so squarely and fulsomely taken on Chevron deference,” Coglianese said.

Of his recent dissents, Walker went into the most depth on his Chevron views in a D.C. Circuit renewable energy case. He warned against “Chevron maximalism,” where courts act too quickly to defer to an agency’s reading of the law.

Instead, Walker wrote, “courts must try every tool of statutory construction before declaring the text ambiguous and proceeding to agency deference.”

In that dissent, Walker also drew attention to the split between the D.C. Circuit and the Supreme Court on Chevron.

“On the D.C. Circuit, Chevron maximalism is alive and well,” he wrote. “But the Supreme Court’s recent decisions repudiate maximalism. Indeed, the Court has not deferred to an agency under Chevron since 2016.”

In his dissent in Loper Bright, Walker referred to federal agencies as “creatures of Congress, so they have no authority apart from what Congress bestows.”

‘Major questions’ proponent

Walker also notably dissented in the D.C. Circuit’s high-profile ruling upholding EPA’s broad authority to regulate greenhouse gas emissions from power plants, as the Obama administration did with its wide-ranging Clean Power Plan.

The case later reached the Supreme Court, which reversed the D.C. Circuit, putting new guardrails on the ability of federal agencies to craft rules on climate change, public health emergencies and other pressing matters.

The high court’s ruling in West Virginia v. EPA echoed Walker’s dissent in the D.C. Circuit’s decision, which advocated for the use of the “major questions” doctrine to strike down ambitious rules like the Clean Power Plan — unless agencies have clear congressional authority to craft them.

“To be sure, if we frame a question broadly enough, Congress will have always answered it,” Walker wrote in his dissent.

Legal observers have noted that the major questions doctrine — depending how broadly courts apply it in the wake of West Virginia — could limit how often judges use Chevron to defer to agencies.

While the Clean Air Act may direct EPA to clean the air and address carbon pollution, Walker wrote in the D.C. Circuit precursor to West Virginia that the law was “far from clear” about specifics like how the agency should reduce emissions from power plants — or who should pay for the changes.

“I admit the Supreme Court has proceeded with baby steps toward a standard for its major-rules doctrine. But ‘big things have small beginnings,'” wrote Walker.

“And even though its guidance has been neither sweeping nor precise,” he continued, “the Supreme Court has at least drawn this line in the sand: Either a statute clearly endorses a major rule, or there can be no major rule.”

How far will SCOTUS go?

It’s unclear how far the justices may decide to go to limit Chevron.

The Supreme Court’s conservative justices have shifted significantly from when Scalia argued that federal agencies were the best interpreters of Congress’ intent in ambiguous statutes.

“Scalia’s view was that elections have consequences,” said Tom Lorenzen, a partner at the firm Crowell & Moring LLP. “It makes sense for the newly elected administration to be tasked with interpreting ambiguous provisions.”

Now though, conservatives are arguing that Chevron provides too much power to agencies like the Biden administration’s EPA, which is gearing up to release a new slate of rules to tackle planet-warming emissions.

“What’s really changed things now is we have a very different Supreme Court makeup that is now dominated by conservative justices,” said Lorenzen, a former Justice Department official.

Critics of Chevron say that the shift away from the doctrine is empowering judges, but “Congress is the ultimate loser,” said Virelli of Stetson University. He said the purpose of administrative law is to allow Congress to delegate authority to expert groups to address important problems that may arise in the future.

“The only way to do that is with a framework of relatively general instructions about the future of the industry or the part of society that Congress wants regulated,” Virelli said.

Kristin Hickman, a law professor at the University of Minnesota, noted that the Loper Bright petition presents the justices with a set of choices to either overturn Chevron — or reach a narrower ruling that says silence in a statute doesn’t count as ambiguity.

She said she expects the court to take the second option.

“I think it’s great clickbait to have dramatic headlines about the Supreme Court blowing up the administrative state,” Hickman said, “But irrespective of what happens in Loper Bright, I just don’t see it.”