Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
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 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.
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.
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.
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 email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)