A few years ago, when The Benedict Option was becoming popular in certain Christian circles—primarily through the writings of Rod Dreher who is influenced by Alasdair MacIntyre—I was initially intrigued and drawn to this approach. The culture was, and continues to be, in a downward spiral. Anti-Christian sentiments and policies continue apace throughout the Western world, while many of our brothers and sisters in Christ throughout the world suffer violent persecution and even martyrdom. As Western Civilization continues to abandon its Christian roots in favor of nihilism, hedonism, consumerism, materialism, utilitarianism, and relativism, many Christians are wondering what our response should be to the situation.
Retreating from the world to build primarily Christian communities is attractive. I myself would like to find friends within the Church who desire greater prayer in small communities, whether it be through a weekly or monthly gathering to pray the Rosary or Vespers. I want holier friendships with my brothers and sisters in Christ that are grounded in the communion we share within the Mystical Body. I want to live a fully Catholic life, so it makes sense that people want to build up communities around monasteries and churches in order to weather the storms of this age.
The problem is that, for Catholics, the laity’s mission differs—while also sharing similarities—with consecrated religious such as Benedictines. We are not called to retreat from the world. We are called to go out to meet the world and bring it to Christ.
But the laity, by their very vocation, seek the kingdom of God by engaging in temporal affairs and by ordering them according to the plan of God. They live in the world, that is, in each and in all of the secular professions and occupations. They live in the ordinary circumstances of family and social life, from which the very web of their existence is woven. They are called there by God that by exercising their proper function and led by the spirit of the Gospel they may work for the sanctification of the world from within as a leaven. In this way they may make Christ known to others, especially by the testimony of a life resplendent in faith, hope and charity. Therefore, since they are tightly bound up in all types of temporal affairs it is their special task to order and to throw light upon these affairs in such a way that they may come into being and then continually increase according to Christ to the praise of the Creator and the Redeemer.
Consecrated religious such as those found in the Benedictine Order are called by God to live the evangelical counsels of poverty, chastity, and obedience within their set Order for their own sanctification and the sanctification of the world through their prayer and work. Monasteries have played a central role in Church history and world history in preserving much of Western Civilization through dark periods, but that is a part of their mission from God. The laity on the other hand is called to transform the world through leading holy lives and proclaiming the Good News in our secular vocation. It is our example as disciples of Christ that is meant to invite others into the joy and hope we have been given through the Paschal Mystery and the Church.
The lay apostolate, however, is a participation in the salvific mission of the Church itself. Through their baptism and confirmation all are commissioned to that apostolate by the Lord Himself. Moreover, by the sacraments, especially holy Eucharist, that charity toward God and man which is the soul of the apostolate is communicated and nourished. Now the laity are called in a special way to make the Church present and operative in those places and circumstances where only through them can it become the salt of the earth. Thus every layman, in virtue of the very gifts bestowed upon him, is at the same time a witness and a living instrument of the mission of the Church itself “according to the measure of Christ’s bestowal”.
Lumen Gentium 33
If the laity retreats from the world and seeks a monastic life that is primarily meant for consecrated religious, then we will fail in enacting the mission ordained to us by God through the Church. Our life in Christ is not meant to be solely interior and insulated. As we grow in holiness and our interior lives strengthen through the grace of the Holy Spirit, we move outwards in charity towards our neighbor. We are not meant to create Catholic communities that seek to keep the world out, rather, we are meant to invite the world in so that salvation may be offered to all.
Who is going to evangelize the culture if we do not? While priests and consecrated religious also have the ability and duty to evangelize, their duties differ from our own by virtue of their sacred office or their vows. It is not primarily these two groups who are going to help bring people to Christ in offices, clubs, sports teams, volunteer organizations, political life, economic life, etc. It is those of us who live primarily secular lives because we spend the majority of our time living and working within the culture. We interact with non-believers or fallen away Catholics frequently throughout our daily lives.
Through our baptism and the common priesthood we enter into, we participate in the Divine Offices of Christ as priest, prophet, and king. One of the ways that we are able to lead people to Christ is by our participation in the prophetic office of Christ. The laity also teaches in His name to all we encounter, not only through our words, but through the holiness of our lives which is evident by the joy and hope we have been given that surpasses all understanding.
Christ, the great Prophet, who proclaimed the Kingdom of His Father both by the testimony of His life and the power of His words, continually fulfills His prophetic office until the complete manifestation of glory. He does this not only through the hierarchy who teach in His name and with His authority, but also through the laity whom He made His witnesses and to whom He gave understanding of the faith (sensu fidei) and an attractiveness in speech so that the power of the Gospel might shine forth in their daily social and family life. They conduct themselves as children of the promise, and thus strong in faith and in hope they make the most of the present, and with patience await the glory that is to come. Let them not, then, hide this hope in the depths of their hearts, but even in the program of their secular life let them express it by a continual conversion and by wrestling “against the world-rulers of this darkness, against the spiritual forces of wickedness.
We are called to persevere in hope even as fierce storms rage in this life. If we retreat and abandon the culture then a great many souls may be lost. We are called to boldly proclaim the Good News to the world. We cannot hide the gift of faith that we have been given, and it is a great gift. We often forget that it has been given to us. We didn’t earn that gift. We must share Christ with our neighbor, even if persecution comes. How can we not want to share the gift of salvation to all we meet? Through the love of God we have been given, there should be a great desire within us to share in the eucharistic banquet with every person put in our path. If we love God, then how can we not seek out the lost, as He has done? How can run from sharing the gift of salvation with the culture? The answers is, we cannot. We must stand firm and fight. The laity is called to help bring the world into communion with the Most Holy Trinity through the Church. That’s our mission.
In light of Lumen Gentium, as well as documents such as Gaudium et Spes and Christifideles Laici, there’s no way the laity can walk away from it’s mission. The Benedict Option contradicts what the Church has called us to do and what Christ is asking of us, which is to be salt and light to a Fallen world. Should we create closer knit Catholic communities of prayer, study, service, and the centrality of the Sacraments? Absolutely. We need to start to truly live as brothers and sisters in Christ. But, from those close knit communities we must move out towards the culture and evangelize. The laity is uniquely equipped for this mission, and in doing so, by God’s grace, a great many souls will be won for Christ.
Chance to win shopping spree and singalong with Kristen Bell raises funds for Boys & Girls Clubs
To support its cause platform ONward!, Old Navy is teaming up with Kristen Bell for a once-in-a-lifetime opportunity to rock your first day of school. A lucky winner and guest will be flown to Los Angeles for a US$1,000/£759 back-to-school shopping spree and a special singalong session with the musically talented actress.
The sweepstakes raises funds for the brand‘s charitable partner Boys & Girls Clubs, and fans can enter through the online fundraising platform Omaze.
To launch the sweepstakes, Bell will perform a back-to-school anthem penned from interviews with Boys & Girls Club kids. Bell will also share some of her personal past back-to-school looks in preparation for styling out the lucky winner in their first day of school outfit.
“Heading back to school each year is an unforgettable moment in every child’s life. I am excited to help the winner of this campaign look and feel their best, so they can start the school year with a sense of confidence and empowerment. It is an honour to partner with Old Navy’s ONward! programme to raise money for Boys & Girls Clubs and help turn learners into leaders,” said Kristen Bell.
ONward! is how the brand pays it forward in local communities. Through the cause platform, the brand partners with nonprofits to empower the next generation with real-world skills, training, and job opportunities to make a difference in communities and blaze a path forward to a brighter future. For over a decade, it has partnered with Boys & Girls Clubs to help turn learners into leaders and provide first jobs through the This Way Ahead internship programme.
This back-to-school season the brand is also launching an ONward! capsule collection of clothing to celebrate the brand’s cause work. The collection includes tees and hoodies for boys and girls, as well as totes and water bottles with the inspiring message “Our Generation Will Change the World.” The brand will donate US$50,000/£37,939 to Boys & Girls Clubs in honour of the special collection, available for sale in all US and Canada stores and online on the brand website.
In addition to the online sweepstakes fundraiser, the brand is also sponsoring an in-store fundraising campaign with the goal of raising US$1 million/£760,000 to benefit Boys & Girls Clubs.
From 26 July to 8 August, Old Navy will match in-store customer donations up to US$300,000/£227,634. Customers can donate at the register at all US and Canada stores.
Christopher J. Walker is a law professor at The Ohio State University Moritz College of Law.
Administrative law sets the ground rules for how federal agencies regulate and how courts review and constrain such agency action. Administrative law’s importance in our everyday lives has become even more pronounced in recent decades with the rise of regulation and the decline of legislation. To provide just one imperfect snapshot, in 2015 and 2016 federal agencies promulgated more than 7,000 final rules filling more than 60,000 pages in the Federal Register. During that same time, by contrast, the 114th Congress enacted just 329 public laws filling about 3,000 pages in the Statutes at Large.
By congressional design, the U.S. Court of Appeals for the District of Columbia Circuit is the nation’s pre-eminent administrative law court and arguably “the second most important court” overall, after the Supreme Court. And D.C. Circuit Judge Brett Kavanaugh — President Donald Trump’s nominee to the Supreme Court — is one of the most sophisticated, provocative and creative voices in the federal judiciary when it comes to administrative law.
During his dozen years of service on the D.C. Circuit, Kavanaugh has authored around 300 opinions, more than a third of which deal with administrative law. As detailed below, Kavanaugh has written numerous major administrative law opinions — including dissents and concurrences, which Aaron Nielson has collected here — and the Supreme Court has embraced his approach on a number of occasions.
In reviewing Kavanaugh’s robust record on administrative law, I find myself agreeing with Jonathan Adler’s conclusion that a Justice Kavanaugh would not bring to the Supreme Court a commitment, in Steve Bannon’s words, to the “deconstruction of the administrative state.” He cares deeply about administrative law and regulatory practice. But he would likely “put a tighter leash on the regulatory state” — a tightening that would generally apply to regulation and deregulation alike.
That is because Kavanaugh’s decisions on the D.C. Circuit, coupled with his other writings, reveal a judge who takes separation of powers seriously. For Kavanaugh, agency regulatory authority comes from and is constrained by Article I, in that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Similarly, the modern administrative state functions against the Article II backdrop that “[t]he executive power shall be vested in a President of the United States of America.” These constitutional separation-of-powers values deeply influence Kavanaugh’s approach to administrative law.
Although not a comprehensive survey of his administrative law jurisprudence, the following in-depth look at three areas captures some of Kavanaugh’s major contributions to administrative law and assesses his potential impact on the federal regulatory state if he is elevated to the Supreme Court.
Chevron (and Auer) deference
In recent years, there has been a growing call (mainly from those right-of-center) to eliminate — or at least narrow — administrative law’s judicial-deference doctrines regarding federal agency interpretations of law.
These reform efforts have been front and center at the Supreme Court. For example, in 2015, in Perez v. Mortgage Bankers Association, Justices Antonin Scalia, Clarence Thomas and Samuel Alito all questioned the wisdom and constitutionality of judicial deference to agency interpretations of their own regulations (Auer deference). And this term in Pereira v. Sessions, Justice Anthony Kennedy joined the prior calls by Thomas and then-Judge Neil Gorsuch to reconsider “reflexive deference” to agency statutory interpretations (Chevron deference).
Just as it was at Gorsuch’s confirmation hearing, I expect Chevron deference (and perhaps Auer deference) to be discussed at Kavanaugh’s hearing. A recent Mother Jones headline aptly summarizes one potential line of attack: “How Brett Kavanaugh Could Cripple the Next Democratic President. Two words: Chevron deference.”
So how would a Justice Kavanaugh affect Chevron deference’s future at the Supreme Court? The potential impact is threefold.
First, as a textualist, Kavanaugh would likely find statutes unambiguous more often than some of his more-purposivist peers who tend to interpret statutes in accordance with the statute’s purpose (and more often than his predecessor, Kennedy), and thus be less likely to defer to agency statutory interpretations. The role of ambiguity is critical to Chevron deference. After all, Chevron v. Natural Resources Defense Council commands that a reviewing judge defer to an agency’s interpretation of a statute the agency administers if (1) the statutory provision at issue is ambiguous and (2) the agency’s interpretation is reasonable.
As Kent Barnett and I have empirically explored in the circuit courts, the ambiguity inquiry at Chevron’s first step is far more exacting than the reasonableness inquiry at the second step. In our 11-year dataset of every published circuit-court decision that cites Chevron deference, we found that agencies prevailed under the Chevron doctrine 93.8 percent of the time when the court found the statute ambiguous and reached step two, but only 39.0 percent of the time when the court found the statute unambiguous and thus stopped at step one.
Kavanaugh has written extensively about the role of ambiguity in statutory interpretation. Most famously, he set forth his concerns in a Harvard Law Review essay reviewing Judge Robert Katzmann’s book on statutory interpretation. There, he argued that “judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.” (For those interested in this debate, I highly recommend reading Katzmann’s purposivist reply.)
Kavanaugh himself has recognized that his textualist orientation will likely result in his finding fewer statutes ambiguous under Chevron than some of his judicial peers. As he observed in his Story Lecture last year, whereas some judges might require 90 percent certainty to declare a statute unambiguous, “I probably apply something approaching a 65/35 or 60/40 rule. In other words, if it is 60/40 clear, it is not ambiguous, and I do not resort to [Chevron deference].”
Accordingly, one should expect him to approach Chevron’s first step in a textualist fashion similar to Scalia’s, in which he exhausts all of the tools of statutory interpretation at Chevron step one to resolve the ambiguity. Or as Gorsuch framed it this term in Wisconsin Central Ltd. v. United States, a “clear enough” — as opposed to, perhaps, a crystal clear — Chevron step one inquiry. Kavanaugh’s opinion in Loving v. Internal Revenue Service is a good example of this approach. There, he relied on “the text, history, structure, and context of the statute” to reject the IRS’ interpretation of the statutory text “regulate practice of representatives of persons before the Department of Treasury” to include the authority to regulate tax preparers.
Second, Kavanaugh has advanced in his academic writings a more-systemic narrowing of Chevron deference based on concerns about uniformity of federal law and partisanship in judicial decision-making. As he explained in his Story Lecture, he finds the threshold ambiguity inquiry under Chevron problematic because his “goal is to help make statutory interpretation … a more neutral, impartial process where like cases are treated alike by judges of all ideological stripes, regardless of the issue and regardless of the identity of the parties in the case.”
So Kavanaugh proposes preserving agency deference “in cases involving statutes using broad and open-ended terms,” but perhaps eliminating it “where an agency is instead interpreting a specific statutory term or phrase.” That is because, in the latter instance, “[j]udges are trained to do that, and it can be done in a neutral and impartial way in most cases.” As Kavanaugh concludes, “the problem with certain applications of Chevron, as I see it, is that the doctrine is so indeterminate — and thus can be antithetical to the neutral, impartial rule of law — because of that initial clarity-versus-ambiguity decision.”
It is difficult to assess Kavanaugh’s proposal in the abstract. Perhaps he is suggesting a total elimination of Chevron deference when dealing with specific statutory ambiguities as opposed to open-ended delegations (that do not implicate major economic or political questions, more on that below) — though that line is often difficult to discern, much less draw. Or maybe this is just another way to articulate Kavanaugh’s textualist, Scalia-esque approach to Chevron step one. Or perhaps he is echoing Kennedy’s concerns from his Pereira dissent about how Chevron deference “has come to be understood and applied,” with “[t]he type of reflexive deference exhibited in some of these cases.” This strikes me as a fruitful line of inquiry for Kavanaugh’s confirmation hearing.
One final note: If Kavanaugh is concerned about administrative law’s political dynamics, the right prescription may be the opposite: Preserve a bright-line Chevron doctrine. In the latest article from our Chevron dataset, Kent Barnett, Christina Boyd and I find that, at least in the circuit courts, Chevron deference has a powerful effect on constraining partisanship in judicial decision-making and encouraging uniformity in federal law — the values that seem to motivate Kavanaugh in his academic writing. In our dataset (2003-2013), Kavanaugh largely applied the same approach to Chevron deference regardless of whether the agency interpretation under review was conservative or liberal. But that was not true for all conservative and liberal judges in our dataset. And perhaps this partisanship he sees in other judges’ application of Chevron deference is what is driving Kavanaugh’s concerns here.
King v. Burwell, the statutory challenge to the Affordable Care Act, is a recent and prominent example of the major questions doctrine. In a 6-3 decision written by Chief Justice John Roberts, the Supreme Court found the statutory language ambiguous. But the court refused to apply any deference to the agency’s interpretation of the statutory ambiguity. Instead, the chief justice invoked the major questions exception to Chevron deference because the statutory provision implicated “a question of deep economic and political significance that is central to this statutory scheme” and for which the agency (the IRS) had no expertise.
Kavanaugh looked to King v. Burwell when the Federal Communications Commission’s net-neutrality regulation reached the D.C. Circuit in United States Telecom Association v. FCC. In his dissent from the denial of rehearing en banc, he argued that “[i]f the Supreme Court’s major rules doctrine means what it says, then the net neutrality rule is unlawful because Congress has not clearly authorized the FCC to issue this major rule.”
As Jeff Pojanowski has observed, Kavanaugh’s version of the major questions doctrine, which Kavanaugh relabeled the major rules doctrine, “came with a twist”:
After canvassing the Supreme Court’s jurisprudence and scholarly commentary, [Judge Kavanaugh] identified what he dubbed the “major rule” exception to Chevron deference. He saw this Chevron carve-out as holding that if “an agency wants to exercise expansive regulatory authority over some major social or regulatory activity … an ambiguous grant of statutory authority is not enough.” … Rather than hiding regulatory elephants in mouse holes, Congress can extend the reach of the administrative state only through clear statements.
Dan Deacon has argued that Kavanaugh’s approach is a “weaponized” version of the doctrine that, absent a clear congressional statement to the contrary, strips away not only Chevron deference for major questions but also any agency authority to regulate concerning those major questions. “[T]he ‘major rules’ doctrine might extend to actions that ‘de-regulate’ as well as regulate,” Deacon observes, “[b]ut the overall logic and tenor of [Kavanaugh’s] argument is largely anti-regulatory.” Eric Citron has a similar take in his contribution to SCOTUSblog’s coverage of Kavanaugh.
In that sense, Kavanaugh’s major rules doctrine is a second-order means of addressing nondelegation doctrine concerns. As noted at the outset, Kavanaugh’s view of separation of powers — and, in particular here, Article I’s nondelegation command that Congress cannot delegate legislative powers to federal agencies (or anyone else) — motivates his administrative law jurisprudence. Cass Sunstein, among others, has noted that the Supreme Court has seldom used the nondelegation doctrine to strike down a statute, largely because of line-drawing problems. Kavanaugh’s major rules doctrine attempts to address nondelegation concerns through a substantive canon of statutory interpretation instead of a constitutional doctrine, by establishing an interpretive presumption that Congress does not intend to delegate rulemaking authority over questions of major economic or political significance absent a clear congressional statement to the contrary.
Because Kavanaugh expounded this major rules doctrine in a dissent, its precise contours are understandably not fully developed. But I concur in Pojanowski’s assessment that “Judge Kavanaugh’s careful explication and reformulation of the ‘major questions’ exception is an important development in its own right, and a rich source for further reflection on the role of the courts in the administrative state.” It is certainly another fascinating line of inquiry for his confirmation hearing, especially when considered in conjunction with his proposal discussed above to limit Chevron deference to open-ended congressional delegations.
In sum, Kavanaugh’s approach to Chevron deference in practice would likely be quite similar to Scalia’s textualist approach at step one. He has also expressed concerns similar to his potential predecessor (Kennedy) about how the doctrine has become “reflexive deference” in practice, perhaps signaling a desire to cabin Chevron’s domain. In light of how he has embraced the major questions doctrine, it would be unsurprising to see a Justice Kavanaugh join the chief justice’s calls for a narrower, more context-specific Chevron deference.
Although Kavanaugh has not addressed the propriety of Auer deference to an agency’s interpretation of its own regulations, his concerns about interpretive doctrines that turn on ambiguity, coupled with his views on separation of powers, seem to suggest he would be receptive to calls to eliminate — or at least further limit — Auer deference. We may find out the answer as soon as this coming term, as a pending cert petition asks the court to overrule Auer v. Robbins.
Kavanaugh’s dissent in the net-neutrality regulation case, moreover, provides some fascinating clues for how a Justice Kavanaugh might address nondelegation and separation-of-powers concerns more generally. Again, we may learn more about Kavanaugh’s views on nondelegation doctrine as early as this term, when the Supreme Court decides Gundy v. United States, which raises a nondelegation challenge.
APA hard-look review
In SCOTUSblog’s coverage of Kavanaugh, Edith Roberts and Michael Livermore have already surveyed Kavanaugh’s approach to hard-look review of agency action under the Administrative Procedure Act.
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
As Roberts details, Kavanaugh’s approach to hard-look review does not always result in agency losses. One of his more prominent APA decisions is American Trucking Associations v. EPA, in which he authored the 2-1 majority opinion upholding the EPA’s authorization of California’s rule limiting emissions from in-use non-road engines. Judge Stephen Williams dissented, arguing that the EPA failed to engage in APA-required reasoned decision-making — an argument Kavanaugh rejected because he found the EPA had reasonably interpreted and considered the statutory criteria.
In Kavanaugh’s opinions concerning the APA arbitrary-and-capricious standard, one finds a judge who takes hard-look review seriously. He scrutinizes the agency’s rulemaking process to ensure that the agency has considered the relevant statutory factors, responded to counterarguments and evidence, and otherwise engaged in reasoned decision-making within the agency’s statutory authority. Agencies sometimes win and sometimes lose, and sometimes an agency loss is a “liberal” or “conservative” win.
Although I tend to view Kavanaugh’s approach to APA review as more principled and consistent than Livermore does, Livermore’s bottom line may well still be true: “[G]iven congressional gridlock, notice-and-comment rulemaking by environmental agencies has become the primary vehicle for environmental progress over the past several decades. [Replacing Kennedy with Kavanaugh] will make this path more difficult, halting and fraught with risk.”
And this prediction may be true not just for environmental cases but for administrative law more generally. To the extent federal agencies attempt to repurpose old statutes to address new problems in ways that stretch or distort those statutes, a Justice Kavanaugh is unlikely to vote to defer to the agency — and even less so, as discussed above, in matters of major economic or political significance. He has a long record of constraining agency action within what he perceives as the limits of the statutory text. Here, again, we see Kavanaugh’s separation-of-powers vision at play in that regulatory authority comes from Congress and is constrained by Article I nondelegation values.
There is one wrinkle that probably deserves a separate, extended write-up: Kavanaugh has shown some interest in APA originalism. In recent years, somescholars have called for a return to the text of the APA and an accompanying abandonment of administrative common law that is inconsistent with the original meaning of the APA. The Supreme Court has at times embraced this APA originalism, arguing that courts cannot require federal agencies to utilize procedures not expressly required by the APA itself. Vermont Yankee v. NRDC and Perez v. Mortgage Bankers come immediately to mind.
In light of his textualist approach to statutory interpretation and his separation-of-powers vision, it should come as little surprise that Kavanaugh has been relatively receptive to APA originalism. Consider American Radio Relay League, Inc. v. FCC. At issue was the D.C. Circuit’s Portland Cement doctrine, which requires federal agencies to disclose the technical data and studies on which they relied to draft the proposed rule. Although noting that this doctrine “may make sense as a policy matter in some cases,” Kavanaugh wrote separately to express his concerns that the doctrine is inconsistent with the text of the APA.
As a policy matter, I tend to agree with Dan Farber that the Portland Cement doctrine serves an important purpose in notice-and-comment rulemaking. (Though, it should be noted, some progressives have argued against the doctrine because it could put science on trial and discourage scientists from publicly sharing their datasets and models. Conversely, many regulated entities no doubt appreciate the doctrine as one more hurdle to trip up an agency on judicial review and thus further delay rulemaking.) There are compelling commonsense and nonpartisan policy reasons for the doctrine, and it is thus no surprise that the American Bar Association and the Administrative Conference of the United States have urged Congress to amend the APA to include such a disclosure requirement.
Kavanaugh’s concern, however, is not about policy but law—in particular, whether a court can impose such a requirement that he perceives is lacking in the APA itself. The Portland Cement doctrine is just the tip of the iceberg when it comes to APA originalism. Administrative common law arguably includes a number of central administrative law doctrines, including Chevron and Auer deference, the presumption of reviewability and remand without vacatur — just to name a few. And, for present purposes, hard-look review under the APA.
It’s doubtful there are five (or even four, or three, or two) votes on the Supreme Court to engage in a full-fledged APA originalism project. It isn’t even clear that Kavanaugh would be committed to such a project, especially for bedrock doctrines like hard-look review and deference doctrines for which statutory stare decisis is arguably quite weighty. But this is another area to watch in the years to come, especially if Kavanaugh joins the Supreme Court.
There, Kavanaugh argued that the PCAOB’s removal provisions were unconstitutional as contrary to the president’s Article II removal authority because of the double-insulation protection. In particular, PCAOB board members were only removable “for cause” by the Securities and Exchange Commission (not the president), and SEC commissioners were only removable “for cause” by the president. The 5-4 conservative majority on Supreme Court ultimately agreed with Kavanaugh’s dissent.
Kavanaugh may consider this dissent his most significant opinion on the D.C. Circuit, but it arguably isn’t even his most significant dissent when it comes to presidential control of independent agencies. As Jenn Mascott and Aaron Nielson detail elsewhere, “Judge Kavanaugh sounded similar themes in PHH v. CFPB, twice, in fact. There, he read Article II to prohibit another arguably novel agency structure—this one created by the Dodd-Frank Act.” In a panel opinion subsequently vacated by the D.C. Circuit en banc, Kavanaugh found unconstitutional the structure of the Consumer Financial Protection Bureau — an independent agency headed by a single director, as opposed to a multi-member commission, who was only removable for cause by the president. As he observed in the panel opinion, “That combination of power that is massive in scope, concentrated in a single person, and unaccountable to the President triggers the important constitutional question at issue in this case.” He thus severed the for-cause removal protection from the statutory scheme.
Last month a district judge in the Southern District of New York adopted Kavanaugh’s position, ruling that the CFPB cannot bring an enforcement action in district court because of its unconstitutional structure. Indeed, Judge Pleska went one step further and held that the for-cause removal provision is not severable. And earlier this month the U.S. Court of Appeals for the 5th Circuit found one of the few other single-director independent agencies (the Federal Housing Finance Agency) unconstitutional, on grounds similar to those articulated by Kavanaugh.
Kavanaugh’s views on Article II presidential control of federal agencies, and in particular of so-called independent agencies, could implicate a number of important administrative law issues that may reach the Supreme Court in the near future. Efforts to reconsider the political independence of administrative law judges — and perhaps the federal civil service more generally — are working their way through the administrative state. The White House may extend presidential review of agency rulemaking to cover independent agencies. And, of course, questions abound, at least as an academic matter, as to presidential control of a special counsel — a matter that exceeds the ambitions of this post but has been summarized by Kevin Russell in this SCOTUSblog series.
To be sure, Kavanaugh’s separation-of powers opinions do not directly address these issues — though some have strained to read “wolves” into Kavanaugh’s footnotes to cast doubt on the future of independent agencies writ large. If and when these issues reach the Supreme Court, however, one should expect a Justice Kavanaugh to have a unique and sophisticated take, one that takes into account the Article I and Article II separation-of-powers values that influence his administrative law jurisprudence.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel for the intervenors in United States Telecom Association. The author of this post is not affiliated with the firm.]
Adrian Viajero. Aguas de Oro, 2017. Photo by Marco Martinez.
Over the past fifty years, street art has become one of the most common forms of contemporary art in urban public spaces. Sometimes it’s called vandalism and other times the more generic term, ‘graffiti.’ These aesthetic acts in public spaces are not only worthy of discussion, but also important to teach since they often contain social cues that help us decipher the visual landscapes in which we live. Teaching students an academic vocabulary to discuss street art helps them understand and analyze the nuance that can exist in what appears to be mere paint splatters on a street sign. An important conversation is happening in our urban spaces, and you don’t need to purchase an admission ticket to see it.
This intricate discussion on Street Art, Vandalism, and Graffiti is one that I facilitate every year at Manhattan Hunter Science High School, where I teach a Contemporary Art History class. For the past eight years I’ve taught this course, I’ve had complete freedom in terms of curriculum design, and I have constructed the class I wish I could have taken in my own undergraduate studies. In the course, we investigate and study exhibitions that are currently on view, and then go see them in person. I tend to focus on exhibitions that have an edge of controversy to them, as they provide the largest possibility for dialogues that have real world consequences. For instance, when the Museum of Modern Art responded to the Trump Administration’s first travel ban of 2017 by hanging work from their collection by artists from these banned nations, we engaged with that institutional response. When the Solomon R. Guggenheim Museum received threats for featuring artwork that involved live animals, my students unpacked the disagreement. Each year the curriculum is completely reinvented but I always begin the year focusing on Street Art, since it addresses the abundance of contemporary art that is constantly being refreshed in our public spaces and it is the only art form that my students have unlimited free access to. Street Art has such a presence in our day-to-day lives, especially in diverse urban spaces like New York City, and studying its roots can provide us with a wider understanding of the communities that make up our cities. Through careful observation, documentation, and categorization, we can decipher the language and concepts that reach beyond the classic combination of spray paint and a wall.
Aaron Schraeter. Birdhouse Repo, 2017. Photo by Aidan Jennings.
For many of my students, studying street art is a bridge between understanding aesthetics in the real world and aesthetics in museums and galleries. It’s important for students to learn to move between their usual interaction with artistic imagery (largely via social media) to topics where they can sustain elongated discussions and dive deep into reservoirs of big ideas. When setting up this unit of study each year, I have three benchmarks that I consistently aim to reach: students should understand origins of graffiti in the 1970s, the global impact of the graffiti movement as it evolved into the street art genre of present day, and finally the aesthetics of the local neighborhoods where they live.
“An important conversation is happening in our urban spaces, and you don’t need to purchase an admission ticket to see it.”
On the first day of this unit, I’ll often begin by asking questions about the spaces where we live: “What does your neighborhood look like? Describe it with details from memory.” This exercise always yields interesting results and provides a baseline for how students will come to understand spaces in which they live, as each night they’ll go back and find something new for homework. Through this slow accumulation of observations, students develop mental maps of their neighborhoods and within a matter of weeks, their understanding of these spaces undergoes a radical transformation. The affordability of smartphones with geotagging and high quality cameras have been a major boon for assignments like this.
Shepard Fairey. Rise Above, 2015. Photo by Marco Martinez.
In the next phase of the unit, I introduce artwork from some local street art favorites with strong connections to New York—artists like Lady Pink, Cope2, BNE, Swoon, and the collective Tats Cru (to name a few). As these lessons continue, students consistently come to class excited to have found these works of art near their homes, and academic vocabulary starts finding its way into the discussions. Soon, students are able to differentiate between stickers and wheatpastes, between tags, throw-ups, and burners. As we unpack the aesthetic descriptors for the triumvirate of Street Art/Graffiti/Vandalism, this unit inevitably ends up orbiting around the central question of who is allowed to design public spaces.
The next stage of this unit typically reviews a number of artists that are getting up locally and internationally; we cover the wheatpasted works by Human Bote, the crocheting of Olek, the wide array of amazing work by Tatyana Fazlalizadeh, as well as many more artists featured on the Houston Bowery Wall, 100 Gates Project, and the Coney Island Art Walls. Of course, we discuss Shepard Fairey, whose work sets off a firestorm of curiosity in the students, who learn that the Obama ‘Hope’ graphic, the OBEY clothing brand, and a slew of other images around NYC are all connected to the same artist. His work raises a number of issues, from political criticism to social justice to propaganda to appropriation. More than anything though, his work epitomizes the idea that popularity and power can be gained through visual culture—perhaps the most relevant parallel to the digital age in which we live.
Tats Cru. Wallworks Mural, 2018. Photo by Nick Kozak
At this point in the unit, both the idea of street art and the physical manifestations of it truly begin to rise to the attention of my students. I find that my morning inbox is flooded with images they’ve shot from their urban investigations the day before. Students comment that they cannot help but notice street art everywhere they go, wondering if it was always there to begin with. At this exact moment of studying street art, the mise-en-place has been set, and a final project is assigned: to create a video documentary for the visual landscape in their neighborhoods and in the process, find answers to the question of who has been affecting the design of the spaces in which they live.
This documentary project mixes anthropological studies with art history research, with a heavy emphasis on personal history. Each student must tell their story, tracing where they’re from and how those stories are visualized in their neighborhoods. Some students are wary at first—it’s difficult for areas of suburban Queens to measure up to some of the examples from class. I remind students that the point is not to find big street art names in their neighborhood, but rather to find out that their neighbors are artists who are working with the common spaces around them.
Mr Gore. Mural in the Bronx, 2017. Photo by Promia Chowdhury.
There are potential technical challenges with video recording and editing, but as long as students continue to bring in new videos and images each day, the process takes care of itself. There’s an eagerness that takes over when students begin to learn more about the common tags and stickers they are finding. Often, students encounter a well-crafted sticker or wheatpaste, and research reveals it to be an advertisement for a product, often related to fashion or music (a corporate advertising technique known as ‘wildposting’). There’s always a tinge of disappointment when they learn this; like the clandestine aesthetic object they’ve been fascinated by has been hijacked just to sell a product. But other times they discover artists like UnCutt or Nicer (from Tats Cru) and begin following their work through Instagram, regularly updating the class and sharing news when their exhibitions pop up at Wallworks Gallery in the Bronx (one of the few local institutions that consistently exhibits new work by street artists).
“Through studying street art, students can learn to look critically at how anonymous individuals are affecting the public spaces in their city.”
Through studying street art, students can learn to look critically at how anonymous individuals are affecting the public spaces in their city. While some of it may look like vandalism on the surface, many students quickly realize that a wealth of effort and aesthetic precision often goes into these urban interventions. They begin to understand that everywhere they go has been affected by layers of artists and designers. Educators who teach in or near such aesthetically active public spaces can open this world of possibility to their students. And if you still have those around you who are clinging to the question of “Why is this art?” then I would paraphrase an answer I’ve heard once before: “That’s a boring question and it’s already been answered.” There are extensive artistic processes that can be found beyond the traditional museum or gallery—and they’re right outside your door.
Women’s March in New York City, 2018. Photo by Marilyn Casey.
Over the past year, many of us have gathered in kitchens, living rooms, and common spaces to make art for protests. Sharpies have been scrawled across cardboard, pink and magenta yarn has been sewn into pussy hats, and the more ambitious have made synchronized costumes and large-scale puppets. All of these protest-art objects have added new visuals to public spaces, combining political savvy with creativity to make instantaneous messages. Like at a potluck dinner, there’s often a sense of community, with each participant expressing solidarity and bringing something unique to the conversation. It is clear that the protest art in public spaces is corresponding with greater sensitivity to the community and country in which it is made. At this time, as the temperature of political discourse rises to untenable levels, it is vital for artists, educators, and cultural institutions to publicly engage with social and political issues.
Some artists have made protest art that fits well into politically charged public spaces. Marilyn Minter, for example, best known for her provocative paintings and videos of women, fashion, and food, created a series of buttons in support of Planned Parenthood that boldly stated, “Don’t fuck with us, don’t fuck without us.” Created in advance of Donald Trump’s inauguration, Shepard Fairey’s We the People posters featured his iconic style of portraiture; protesters could download and print free versions of the images or buy copies of the Washington Post or New York Times, where the artist featured these works in full-page advertisements. These artists and many more create work that has value beyond concept and commodity, it is accessible, and it is useful for communicating en masse.
Writers Rising Protest, 2018. Photo by Florencia Varela.
Addressing protest art in the classroom can be tricky, since much of it takes too firm a stance in a profession that expects political neutrality from educators. But there’s definitely space in the classroom for studying activist art. For example, the politically charged work of Tania Bruguera is often implemented in public spaces. Her work can take the form of voting, in the case of Referendum, or a social service, like Immigrant Movement International. No matter the country where Bruguera exhibits her work, she nudges the local status quo and tests the boundaries for what’s ideologically acceptable. Truth Booth, the ongoing work of the group known as Cause Collective, invites viewers to participate in a video recording, in which they finish the sentence, “The truth is…” This nationally and internationally exhibited participatory work delicately combines the intimate and the public. Finally there are artists like Ai Weiwei, whose work can be beautiful and heart-wrenching at the same time. A student once asked me what medium Ai Weiwei was most known for working with, and I had to think for a moment before finally saying, “Conflict. His medium is conflict.”
“By including activist artwork in the curriculum, educators can present opportunities for teachable moments and socially relevant discussions.”
By including activist artwork in the curriculum, educators can present opportunities for teachable moments and socially relevant discussions. But talking about concepts raised by activist art is a far cry from attending a protest and feeling the mix of catharsis and relief when amongst so many allies. Despite persistent student interest in participating in and organizing protests, engaging in this type of political activity with their students would be out of the question for most educators. Inevitably, teachers learn the political inclinations of their students, and over the years one gleans the political trends of the community where one teaches.
Citizens of Earth Crew, Queens Museum, 2017. Photo by Andrew Buttermilch.
It became clear to me that teaching about activism in public spaces was a good start, but my students needed more. Their interests surpassed what I was able to teach inside the school; they needed a new mode in which to learn and engage with political topics, on their own terms. The young will inherit the problems that older generations create or fail to solve, but young voices are too often absent from conversations regarding governance. I strove to create a situation that blended activism and protest art, one that would allow students to engage with political ideas and develop stances rooted in their life experiences. My wife and creative partner, Miranda Kozak, and I collaborated to create Citizens of Earth. This work is a social sculpture, performed in public spaces, meant to give young people a platform to grapple with issues surrounding immigration and ancestry in American culture. Upon interacting with the piece, participants are encouraged to share their personal stories through the creation of a small global passport. My students were invited to work the piece as “diplomats,” to engage the public in conversations about their national and ethnic histories. The work itself is a verbal exchange between participants, who share their personal stories and often develop more nuanced ideas after experiencing the work. If the participants wished, the diplomats would create a small “global passport” for them, representing their “official” documentation as a citizen of the planet. More than anything, Citizens of Earth revolves around the question of how the world would be different, and how we would view each other, if we all held the same passport.
Citizens of Earth detail, 2017. Queens, NY. Photo by Nick Kozak.
“…young voices are too often absent from conversations regarding governance.”
To date, I’ve presented Citizens of Earth with my students three times in New York City; our most recent venue was Flushing Meadows Corona Park, in conjunction with the Queens Museum and the nonprofit ArtBuilt. Since the piece is performed in public, everyone can participate, and all participation is transparent to all witnesses; the work implies that political discourse should not remain behind closed doors in private spaces but rather be open for scrutiny in public spaces.
Artists and educators owe each other the opportunity to re-examine what it means to be allies and active members of our communities. This can happen by featuring new artists and new ideas in our curricula; it can also take the form of including students in specialized extracurricular work that gives them a space to test out ideas on their own. If a school is home to students that belong to groups that the current administration is demonizing or threatening to deport, it is crucial to show students how to engage in civil political discourse that will make them more engaged citizens of our country and our Earth.
You should start the researching, planning and decision making process well in advance – your third year of school would be ideal. Consider that the planning phase can take up a year before the job in your chosen field actually begins.
Use Your Friends Wisely
Your network is there for a reason. The old adage – dentistry like a small town, everyone seems to know everyone else – is true. Word-of-mouth is the way the world works, and your network is a powerful asset.
Get out there, go to the meetings. Dental society, alumni, and continuing education meetings are all great places to expand your network. Professional social media sites like LinkedIn also have tools for building your network and searching for jobs. The ADA career center features listings from across the country, updated often. Go there, pick your criteria, upload your resume, and start getting job emails. Engage your school’s job center tools as well. Start now, be sure to bring your business cards.
Reach out to your state or local dental society to ask about mentorship programs.
Specialty or ethnic dental associations may be good places to connect to mentors as well. “Find Your Superheroes” from ADA New Dentist Now blog View ASDA’s helpful mentorship tips
It’s an incredible and rare breed of person brave enough to give their life to protect a group of perfect strangers. This bravery is why we must all remember Saman Gunan who died last week.
Petty Officer Saman Gunan passed away when he ran out of air during a mission to deliver oxygen tanks to twelve young boys and their football coach, who were trapped in an underground, water-logged cave in Chiang Rai, Thailand, for almost three weeks.
As news breaks of the successful rescue of the thirteen, it’s proper to remember Saman Gunan, who died on Thursday, July 5.
Gunan was at the forefront of the mission to save the trapped youngsters – some of whom are as young as 11 years old – and their 25-year-old coach, Ekaphol Chantawong, from Tham Laung Cave.
The former NAVY Seal, aged just 38, had come out of retirement to help his fellow professional divers, some of whom travelled from all over the world to save the young football team.
The group of thirteen were initially found by British rescue divers. They’d been reported missing after being stuck in the cave for 10 days, perched on a rock shelf in a small chamber, about 4km (2.5 miles) from the cave mouth.
Initially, officials thought they’d have to leave the thirteen in the cave until the end of the rain season, but with oxygen levels in the chamber depleting to just 15 per cent (from the norm of 21 per cent) something had to be done before its end, in four months.
So entered the trained team of highly-trained divers, including Gunan.
They were tasked with taking oxygen to those stranded, supported by nearly 1,000 people involved in the rescue operation, including navy divers, military personnel and civilian volunteers.
One round trip from the entrance to the cave through the series of narrow passageways – some submerged entirely – takes 11 hours in total, and involves diving against the current.
Gunan was attempting this when he died after losing consciousness in one of the passageways, said Passakorn Boonyaluck, deputy governor of the Chiang Rai region, where the cave is situated.
He said Saman’s dive partner tried to revive him, and his body was brought out of the cave.
At the time, Mr Passakorn said the operation must continue:
His job was to deliver oxygen. He did not have enough on his way back. I can guarantee that we will not panic, we will not stop our mission, we will not let the sacrifice of our friend go to waste.
Since his death, the thirteen lost in the cave have been freed in a three-day mission, which began on Sunday, July 8.
While the nation – and the global media who’ve been following the incredible story – take a sigh of relief for the friends and family of the rescued, it’s important to pay respects to all those who freed the group, Gunan especially.
His wife, Waleeporn Gunan, spoke to the BBC about her loss, saying:
In other people’s eyes, he’s lovely. For me, I love him so much. I really loved him.
Every day, before he left for work, we said we loved each other. At midday we’d text to see if the other had had lunch. In the evening, when he got home, I would ask him how he was.
If you ask me if I’m sad, it’s like I’ve died but am still alive.
Waleeporn explained how she uses her pride in her husband’s last act of kindness and bravery to help cope with his loss.
The grieving widow added:
I use pride to surpress my sadness. He’s been praised as a hero because of who he was.
He loved helping others, doing charity work and getting things done. So I use pride to help deal with my sorrow.
Sharing a message with Saman, she told her late love, who she calls ‘honey’, he is ‘the hero in [her] heart’, adding: “You always were and always will be.’
His father, Wichai Gunan, also shared some words in the hopes his son would hear:
I am very proud but I am very sad too because I lost my beloved son.
May you rest in peace. Rest well. Daddy loves you.
Waleeporn concluded by recalling how Saman, an avid cyclist and outdoorsman, had once said, ‘We never knew when we would die. We can’t control that so we need to cherish every day’.
His life could – and should – serve as a reminder of the innate selflessness of the human condition, and the bravery we’re all capable of with enough love in our hearts.
No one really knows how they’d react in a crisis unless they’ve experienced one. It’s called the fight or flight response – and it’s perfectly natural to react in either way according to biology and our human instinct for self-preservation.
Stories of the bravery of the boys trapped – who’ve sent letters to their families telling them not to worry – have touched the hearts of people all over the world.
But what Saman did, that final act of selflessness, bravery and kindness, takes an almost superhuman strength of self, and it should never be forgotten.
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