Kavanaugh: 3 Scalia Dissents Will Become Law of Land

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Patrick Gregory

June 2 — Three dissents by the late U.S. Supreme Court Justice Antonin Scalia will one day be the law of the land, D.C. Circuit Judge Brett M. Kavanaugh predicted June 2.

Those dissents span four decades and issues of executive power, detention of U.S. citizens and deference to federal agencies.

But they all have one theme—liberty, Kavanaugh said.

Kavanaugh made the predictions during a keynote speech at an administrative law conference hosted by George Mason University law school, Arlington, Va.

The school will be named the Antonin Scalia Law School beginning July 1.

A Wolf is a Wolf

A future Supreme Court will find that core executive powers being exercised by unelected officials is a threat to liberty, based on Scalia's dissent in Morrison v. Olson, 487 U.S. 654 (1988), Kavanaugh predicted.

Morrison held that the independent counsel provisions in the 1978 Ethics in Government Act didn't violate the U.S. Constitution's separation of powers principles.

The act—which allowed appointment of independent counsel to investigate government officials—wasn't a wolf in sheep's clothing, Scalia said.

Rather, “this wolf comes as a wolf,” he said.

The act allowed the attorney general to remove independent counsel for “good cause,” Scalia said.

“This is somewhat like referring to shackles as an effective means of locomotion,” he said.

Unlike the act, the Founders sought to vest all executive power in a single president, Scalia said.

“Why did Scalia care so much” about the act, Kavanaugh asked rhetorically.

Because “more than any justice” in history, Scalia understood the link between the Constitution and liberty, he said.

Detention of Citizens

Kavanaugh also predicted that a future court will prohibit the military detention of U.S. citizens as enemy combatants, based on Scalia's dissent in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

In Hamdi, a plurality found that Congress's Authorization for Use of Military Force following the Sept. 11, 2001, terrorist attacks authorized the military detention of a U.S. citizen.

Kavanaugh quoted Scalia's statement that the “very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

Scalia said the Constitution required that a detained citizen be released absent prompt criminal proceedings or a formal suspension of the writ of habeas corpus by Congress.

The concept of lifetime detention of U.S. citizens without criminal trial is “shocking” to many Americans, Kavanaugh said.

Scalia emphasized that the Constitution was designed precisely to confront issues of war, not to be ignored during wars, Kavanaugh said.

Scalia also made clear that his views applied only to detention of U.S. citizens and not aliens, Kavanaugh said.

Auer Deference

Scalia's rejection of “Auer deference”—in which agencies' interpretations of their own regulations receive judicial deference—will also become the law of the land, Kavanaugh predicted.

The Supreme Court deferred to the Environmental Protection Agency's interpretation of its own stormwater rule based on Auer v. Robbins, 519 U.S. 452 (1997), in Decker v. Nw. Envtl. Def. Ctr., 81 U.S.L.W. 4190, 2013 BL 75128 (U.S. March 20, 2013) (81 U.S.L.W. 1348, 3/26/13).

Scalia's dissent explained that Auer deference violates the Constitution's separation of powers principle—that the power to write and interpret laws can't be in the same hands, Kavanaugh said.

The dissent argued that keeping those powers together would have serious consequences for individual liberty, Kavanaugh said.

Mutual Respect

Kavanaugh is an admitted Scalia fan.

“I loved the guy,” he said.

Scalia thought carefully about his principles, then articulated and stood up for them, Kavanaugh said.

The respect appears to have been mutual.

Scalia, who unexpectedly passed away in February, relied multiple times on Kavanaugh dissents in writing majority opinions for the high court (84 U.S.L.W. 1576, 4/28/16).

American law is “grayer” without Scalia, Kavanaugh said.

But his influence on the nation and the law was “enormous” and “will be felt for a long time.”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com