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The answer to that big question will depend on Justice Brett Kavanaugh. During oral arguments, Kavanaugh channeled a 46-page Harvard Law Review article he had published in 2016, two years before President Donald Trump nominated him to the Supreme Court. The crux of the piece, which was titled Fixing Statutory Interpretation, was that existing Chevron doctrine inappropriately makes judges decisions whether to defer turn on a murky distinction that has yielded arbitrary and inconsistent, though hugely consequential, outcomes.

The threshold question judges face, Kavanaugh emphasized, is whether the meaning of statutory language in question is, on the one hand, clear, plain, or unambiguousin which case judges themselves should apply that meaning (as they understand it)or ambiguous, in which event judges should accept the agencys view. Experience has proven, he contended, that the difference between the two categories rests purely in the eye of the beholder.

Instead, Kavanaugh wrote, judges should simply seek from the outset, and later apply, their own best reading of the relevant terms. However, he stressed, this suggested approach would require judges to still defer to agencies in cases involving statutes using broad and open-ended terms like reasonable, appropriate, feasible, or practicable. In those circumstances, then-Judge Kavanaugh wrote, Courts should be careful not to unduly second-guess the agencys choice of regulation.

The rest is here:
The Supreme Court Could Permanently Break the Government. Liberals Have a Chance to Stop Them. - The New Republic

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