Justice Kennedy just gave Steve Bannon a big reason to smile

We're going to miss the "administrative state" when it is gone.

Former Trump adviser Steve Bannon (MICHAL CIZEK/AFP/Getty Images)
Former Trump adviser Steve Bannon (MICHAL CIZEK/AFP/Getty Images)

In the early days of the Trump administration, when former Breitbart executive Steve Bannon was a top adviser to Donald Trump, Bannon proclaimed that one of the new administration’s top goals would be “deconstruction of the administrative state.”

Bannon is now gone, but his agenda could soon be taken up by one of the most powerful institutions in the country — the Supreme Court of the United States.

Pereira v. Sessions is, at least on the surface, a minor case. It concerns a federal law that permits certain immigrants to avoid deportation if they’ve resided in the United States for 10 continuous years. The clock stops ticking on these ten years, however, once an immigrant receives a “notice to appear” at a removal hearing. In an 8-1 decision handed down Thursday by Justice Sonia Sotomayor, the Court held that a document which is labeled “notice to appear,” but which “fails to specify either the time or place of the removal proceedings” does not trigger this “stop-time rule.”

Justice Anthony Kennedy joined Sotomayor’s opinion (Justice Samuel Alito was on the only dissenter), but he also wrote a brief concurring opinion suggesting that the Court should upend the balance of power between elected presidents and unelected judges that has existed since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council.

If a majority of the Court takes Kennedy up on this suggestion — and it now seems highly likely that they will — that would give a Republican-controlled judiciary sweeping power to veto federal regulations at the very moment when public sentiment appears to be shifting away from Bannon’s agenda.


Chevron is one of the most significant and widely cited cases of the last half-century. Numerous federal laws outline a general policy that must be implemented by a federal agency, and then allows the agency to hand down binding regulations that flesh out the details of this policy. Chevron held that, when the statute that allegedly authorizes such regulations is ambiguous, courts typically should defer to the agency’s interpretation of the statute.

As Justice John Paul Stevens explained in Chevron, this rule makes sense because “judges are not experts” in specific areas of policy, but agency regulators often are. So courts are far more likely to make a hash out of a policy question if they inject themselves into the decision rather than deferring to policy experts on questions where the law is unclear.

Even more importantly, agencies have far more legitimacy to make these kinds of decisions than courts do. “While agencies are not directly accountable to the people,” Stevens explained, “the Chief Executive is.” Thus, “it is entirely appropriate for this political branch of the Government” to set policy, rather than leaving such questions to judges who will never stand for election.

As Chevron was handed down at the height of the Reagan administration, it was initially quite popular among conservatives — Justice Antonin Scalia was, for many years, Chevron‘s biggest cheerleader. If you are a conservative Republican, and a conservative Republican is in the White House, what’s not to love about courts deferring to agency leaders appointed by the president?

Beginning in the Obama years, however, many well-placed conservatives began to sour on the decision. Annual meetings of the conservative Federalist Society, an influential legal group that plays a major role in selecting Trump’s judicial nominees, revealed a Bannon-like obsession with dismantling the administrative state.


This obsession makes sense if you don’t think of Chevron the way a judge should consider a legal question, but instead think of it through a purely partisan lens. If you are a conservative Republican, if a Democrat is in the White House, and if Republicans control the Supreme Court, why would you want courts to defer to agency leaders appointed by the president?

Of course, there is no longer a Democrat in the White House — but a decision weakening or overruling Chevron would not mean that the Trump administration’s actions are all struck down by federal courts. To the contrary, it would mean that the Republican-controlled Court would have broader authority to veto regulations — but that it could also stay its hand in a Republican administration while acting aggressively whenever a Democrat is in the White House.

The Court’s right flank is already chomping at the bit to exercise such power. Neil Gorsuch, who occupies the Supreme Court seat Senate Republicans held open until Donald Trump could fill it, has written more than one opinion suggesting that Chevron should be tossed out.

It is unclear whether Justice Kennedy would go as far as Gorsuch. His opinion in Pereira is less than three pages long, and much of it consists of valid criticism of lower court judges who misapplied Chevron to reach the wrong result in cases similar to Pereira. Again, Chevron only requires deference when a statute is unclear. The law at issue in Pereira wasn’t.

But Kennedy’s opinion also concludes on an ominously Goruschian note. “Given the concerns raised by some Members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”

Assuming that the 81-year-old Kennedy remains on the Court — rumors of his impending retirement have swirled around Washington for nearly two years — his Pereira concurrence suggests that the closest thing the Court has to a swing vote may be on board with the Federalist Society’s plans to target agency regulation.


As a practical matter, that would mean that the Supreme Court would seize broad new authority over new EPA regulations governing harmful emissions, Labor Department regulations governing workers wages, and other regulations protecting retirees from rapacious investment advisers. Future Republican presidents could gain broad authority to deregulate, while Democratic administrations would be unable to act without seeking a permission slip from the likes of Neil Gorusch.