REMARKS AT NOTRE DAME LAW SCHOOL.

• Author: Kavanaugh, Brett M.

First, I want to welcome Justice Kavanaugh. You're always welcome here at Notre Dame, and we're always excited to have you here. Thank you for coming.

Thank you, Dean Cole, for having me, and thank you for the introduction. It's wonderful to be back at Notre Dame. This is one of the finest law schools in America, with a spectacular faculty and wonderful students. It's great to be back for this Symposium, which Professor Barrett started--I guess student Barrett started--when she was on the Law Review herself.

I was here for the symposia in 2014 and 2017. I was introduced in 2017 by Professor Barrett when I was on the D.C. Circuit. I'm confident that neither of us had any idea what was to happen to the two of us over the next few years. And it's wonderful to be her colleague. What a great representative of Notre Dame Law School and of Notre Dame. She is a great friend and spectacular judge and colleague.

Being back at Notre Dame, I've hit it all in the last twenty-four hours. I came in, and I think I've hit the Notre Dame experience: I went to the women's basketball game yesterday--which is a great team; I went to the 10:00 PM Mass in Pangborn Hall last night; and then today's Symposium. It reflects Notre Dame: academic excellence, the spiritual foundation, the Catholic tradition of service to others, and the school spirit reflected in the sports program. So in twenty-four hours, I feel like I'm touching it all. Thank you for having me again, Dean Cole, thank you for everything you are doing to lead this fantastic law school. I appreciate all that you've done.

The breaking news on CNN this morning was that the Court was issuing opinions for the first time in three months. There was all kinds of speculation as to the delay and why it's taken so long to issue their opinion. Could you comment on the news of the day?

Well, we're off and running. We issued an opinion by Justice Barrett today. I am confident they'll all be out by the end of June. So I don't think anyone needs to worry. [AUDIENCE LAUGHTER]

I don't view that as news. It's just coincidence of which mix of cases were in October and November. And I don't think it's--they'll be out by the end of June. They'll be out, and we're off and running today.

Does your decision to stop at using traditional tools of statutory interpretation in American Hospital Association v. Becerra return to the letter of Chevron v. Natural Resources Defense Council, Inc. or reject its spirit?

Great question about Chevron. (1) Chevron is, of course, the case at the heart of administrative law scholarship and decisionmaking over many decades now. And I think there are two ways to look at Chevron and two ways it's applied. This is going to get into the weeds, but we're at an administrative law conference. You're either a footnote-nine Chevron person, or you're a non-footnote-nine Chevron person. I'm a footnote-nine Chevron person. Footnote nine in Chevron says that you apply all the traditional tools of statutory construction to try to resolve any ambiguity in the statute. (2)

And the way I've applied it for twelve years on the D.C. Circuit and now on the Supreme Court is once you apply all the traditional tools of statutory construction, you get an answer. At least unless it's a term in the statute like "reasonable" or "appropriate" or "feasible," in which case, that's actually more of a State Farm (3) issue (to really get in the weeds of administrative law). And so, I think American Hospital (4) and other cases reflect the way I've applied the doctrine, which is: use the tools of statutory construction to resolve ambiguities. And when you do that, you usually get an answer. If it's a term like "reasonable" or "feasible" or "appropriate," then that's a question of, "Did the agency act within the authority granted to it by Congress?" In other words, was it reasonable and reasonably explained? And you're a little more deferential in that realm.

So I view our job, as the Chief Justice famously said, like being an umpire, like being a referee. (5) Our job is always to think about our place in the separation of powers, but to police the line between the executive and Congress, and to make sure that the executive is not exceeding the boundaries set by Congress. I don't think we should be too aggressive or too deferential. I think we should just try to do what footnote nine of Chevron instructed us to do: to use the traditional tools of statutory construction, figure out the best reading of the statute, and figure out then whether the executive crossed that.

And the key to being a good judge--one key--is to be consistent and to apply that method no matter who the parties are, no matter which administration it is, and no matter what the issue is, whether that's an environmental issue, labor issue, immigration issue, what have you, and to try to be consistent over time.

There are non-footnote-nine Chevron judges who I think look a statute and say, "That's complicated. I'm deferring to the agency." That's a simplistic overstatement, but that's the kind of the philosophy I think you sometimes hear associated with Chevron. But to me, from day one on the D.C. Circuit, that's never been the way I've approached it or I've taken footnote nine.

Related to that, on Auer deference, (6) a similar doctrine for interpretation of regulations, in a case called Kisor a few years ago, we emphasized footnote nine from Chevron by analogy and emphasized that yon should really try to resolve the ambiguities in the regulation using the traditional tools of interpretation, as well. (7) So I guess that means I don't think Chevron plays much of a role in a lot of cases.

Along those lines, with regard to Chevron, the Court has been reticent to cite Chevron recently. If there's a reason, why is that?

Well, I think we cited footnote nine. [AUDIENCE LAUGHTER] I think the judges on the Court have recognized that the first thing you do is make an effort at resolving a statute's ambiguity. Every statute has some, at least. We don't get easy cases. So every case we get is going to have some confusion in the drafting, a mistake in the drafting, ambiguity, compromise in the legislation, etc. that we have to resolve, or at least interpret. And I think all the judges realize that we don't just throw up our hands at the start. We go through the process of trying to resolve it using the traditional tools. And some judges might stop short of where I would, but I would use all the traditional tools and try to figure out the best meaning of the statute. And that's why I don't think it's been really used in the way some people think it applies.

Speaking of ambiguity, in West Virginia v. EPA, the Court applied the Major Questions Doctrine without explicitly finding that the statute was ambiguous. Does the doctrine require ambiguity?

So I think the way the Major Questions Doctrine, as I understand it has been applied (and I wrote about it on the D.C. Circuit), it did not start with West Virginia v. EPA. (8) It started long before. You could start it with The Benzene Case in the 1980s. (9) It is a simple principle. And I know there's--particularly in the academy--a fair amount of criticism of the principle; I understand that. But I think it's a principle rooted in common sense and one that's rooted in the Court's case law. And it's a clear statement rule: before we allow an agency to resolve some major question--and let's bracket the fact that there's going to be debate about what qualifies as a truly major question (perhaps some massive new regulation, or some critically expensive, new regulation)--that Congress has clearly delegated that authority to the agency. And I think it's rooted in a couple ideas: constitutional values and our own ideas and understanding--from each of our own experiences--about how Congress operates. So both of those, I think, inform the Major Questions Doctrine.

And the idea is Congress doesn't ordinarily "hide elephants in mouseholes." You've heard that phrase a lot if you've read our cases. (10) In other words, provide some massive new authorization in some ancillary provision, or some provision that's vaguely worded. And I think we've also been very leery of okaying some massive new regulation that's based on a very old statute that was vaguely worded, when the Congress that enacted that statute couldn't possibly have been thinking about the issue or the thing that the agency has done.

And we think that's rooted, again, both in constitutional values and also in our understanding of how Congress operates. It's within a tradition, in my view, consistent with other plain statement and clear statement rules that the Court applies, that I think coexist with textualism and are part of what I think is proper statutory interpretation.

For example: the presumption of mens rea. A lot of times statutes--criminal statutes--don't require any mens rea. Do we just say no mens rea is required? Of course not. I'm very vigilant about that, as are my colleagues. We don't assume Congress meant to incarcerate people or to allow people to be convicted if they didn't have the requisite mental state.

Same with the presumption against retroactivity. We apply that very vigorously as well in civil cases: the assumption that Congress didn't mean to make illegal what you did yesterday, when at the time you did it, it was legal. The presumption--that's one way to describe it at least--the presumption against retroactivity. We will require a clear statement.

Likewise with the presumption against extraterritorial application of statutes. Again, reflecting constitutional values and our assumption of how Congress operates, we don't presume a statute's meant to apply to conduct committed abroad, unless Congress has clearly stated that. So there are a variety of well-rooted clear statement rules in statutory interpretation that I think are entirely proper, that Congress relies on, that Congress assumes, and--from my experience...