Kavanaugh, 'skeptic of unauthorized regulation,' defends his net neutrality, CFPB decisions

24 September 2018 6:59pm

5 September 2018. By Leah Nylen.

President Donald Trump's pick for an open spot on the United States' highest court said that he is a "skeptic of unauthorized regulation" and sought to justify his dissent that the Federal Communications Commission's net neutrality rules are unconstitutional.

“I’m not a skeptic of regulation. I’m a skeptic of unauthorized regulation,” Brett Kavanaugh, a judge on the US Court of Appeals for the DC Circuit, said early Wednesday, the second day of his four-day Supreme Court confirmation hearing before the Senate Judiciary Committee.

Later in the afternoon, Democratic Senator Amy Klobuchar questioned Kavanaugh critically about two of his decisions as an appeals court judge in which he said the FCC’s net neutrality rules and the structure of the Consumer Financial Protection Bureau were unconstitutional.

“My constitutional concern was the structure with the single member head, which had never been done before,” Kavanaugh said of the CFPB case. “I did not say agency had to stop operating. It could continue operating.”

Klobuchar said that Kavanaugh’s decision — which was later reversed by the entire DC Circuit — put other independent agencies, such as the Social Security Administration, the Federal Trade Commission and the Securities and Exchange Commission, at risk.

“You’re basically putting your judgment in the place of Congress,” the Minnesotan said.

She also criticized his dissent from the DC Circuit’s decision not to rehear en banc the case challenging the FCC’s net neutrality rules, characterizing it as Kavanaugh going out of his way to dissent.

“Here you relied on something else you came up with, called the major rules doctrine … in claiming that the FCC lacked authority to issue net neutrality rules because they were, in your words, 'major,'” Klobuchar said. “It feels to me that Congress set up the FCC, and the FCC is doing their job in a really complex policy matter. They put forward these rules on net neutrality, and you insert your judgment to say they are unconstitutional.”

Kavanaugh rejected her characterization, saying his decision was “rooted in Supreme Court precedent.”

The major rules doctrine says “it’s OK for Congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect Congress to speak clearly before such a delegation. That had not happened in my view with respect to net neutrality, and I felt bound by precedent.”

Klobuchar, though, said that the major rules doctrine has only been articulated in a 1986 Law Review article and dicta in Supreme Court opinions.

“What I’m trying to show is this pattern where you say, 'Congress should step in and do everything,'” the senator said, “but you are stepping in in these cases."

Fintech Regulation in 2018