Kavanaugh known for reining in regulators
WASHINGTON — The White House did not mince words when it introduced Judge Brett Kavanaugh to business and industry leaders on the occasion of his nomination to the Supreme Court this summer.
“Judge Kavanaugh has overruled federal agency action 75 times,” the administration said in a onepage unsigned memo touting what it considered the highlights of Kavanaugh’s 12 years as a judge on the U.S. Court of Appeals for the D.C. Circuit.
“Judge Kavanaugh pro-
tects American businesses from illegal job-killing regulation,” the memo said. “Judge Kavanaugh helped kill President [Barack] Obama’s most destructive new environmental rules.”
Hot-button social issues such as abortion and race have so far dominated the debate about Kavanaugh’s nomination, but President Donald Trump’s administration has focused on bringing to heel the federal agencies and regulatory entities that, in Kavanaugh’s words, form “a headless fourth branch of the U.S. Government.”
“The ever-growing, unaccountable administrative state is a direct threat to individual liberty,” White House Counsel Donald McGahn said in a speech to the conservative Federalist Society in the fall. He has said the Trump administration’s efforts to strike down government regulations will be meaningless without judges who will “stand strong.”
As he told another conservative group: “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”
Kavanaugh, 53, for years has been an influential judicial voice questioning the administrative state, with a string of opinions that would sharply limit the power of federal agencies, from the Nuclear Regulatory Commission to the Labor Department’s Occupational Safety and Health Administration to the Environmental Protection Agency. The decisions concern a long list of topics — mortgage abuse, greenhouse gases, even protecting employees from killer whales.
His nomination concerns some who say the agencies’ rulemaking powers protect the public.
“This is the end of the regulatory state as we know it,” said Rena Steinzor, a University of Maryland law professor who specializes in administrative law. “If he goes up there, they will never find a regulation they find acceptable. And they’re going to be making the policy.”
The judge’s supporters say he rules for agencies when he finds they are exercising power specifically granted by Congress, but only after a thorough examination.
“Kavanaugh takes the underlying questions about the legitimacy of any agency’s actions very seriously,” said Jonathan Adler, director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. “His response has been to enforce the rules pretty strictly.”
ORCAS AND OSHA
Kavanaugh’s positions often take issue with the role of independent agencies established with the purpose of protecting the public from more powerful individuals and corporations.
Over time, independent agencies often adapt to deal with new problems in their areas not specifically mentioned by Congress when they were created. For instance, the first of these agencies, the now-defunct Interstate Commerce Commission, was created in 1887 specifically to regulate the railroad industry. In the 20th century, it expanded to regulate trucks, buses and even some pipelines.
That issue of agency authority underlies Kavanaugh’s ruling in favor of SeaWorld, which had been fined $75,000 by
OSHA after a killer whale dismembered and drowned a trainer in front of hundreds of visitors. OSHA said SeaWorld knew from earlier incidents that the whale was highly dangerous.
Two of the appeals court’s three judges backed OSHA. But Kavanaugh dissented, calling OSHA’s action “arbitrary and capricious” because, he said, the Labor Department “lacks authority to regulate the normal activities of participants in sports events or entertainment shows.”
He said regulating the safety of killer whale shows is no different from regulating the safety of tackling in football, or speeding in auto racing, or punching in boxing — all areas outside OSHA’s purview.
In PHH v. the Consumer Financial Protection Board, Kavanaugh’s colleagues on the circuit court overturned his decision that the agency lacked authority because its sole director was not subject to dismissal by the president.
“This is a case about executive power and individual liberty,” he wrote, siding with PHH, a mortgage lender named for its three founders. The firm challenged the federal agency after it fined the company $109 million.
“Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.”
The majority in the case said that “PHH makes no secret of its wholesale attack on independent agencies — whether collectively or individually led — that, if accepted, would broadly transform modern government.”
It is often in dissent that Kavanaugh has moved the law. Asked by the Senate Judiciary Committee to list his 10 most significant opinions, four of the top five were cases in which Kavanaugh disagreed with his colleagues on the D.C. Circuit but was later supported by the Supreme Court.
At the top of the list was a case in which he dissented when a panel of his court upheld the constitutionality of the Public Company Accounting Oversight Board.
“In my view,” Kavanaugh told the senators in his questionnaire, “a key feature of the board’s structure — that its members were removable only ‘for cause’ by the Securities and Exchange Commission, whose members were removable only ‘for cause’ by the President — unconstitutionally limited the President’s Article II authority to supervise the Executive Branch.”
The Supreme Court’s conservatives, in a 5-to-4 vote, agreed with Kavanaugh.
Kavanaugh also argued against the ability of agencies created in an earlier era to regulate modern business. In a case regarding net neutrality, he wrote that the Federal Communications Commission lacked the authority to regulate without explicit instructions from Congress.
“Congress has debated net neutrality for many years, but Congress has never enacted net neutrality legislation or clearly authorized the FCC to impose common-carrier obligations on Internet service providers,” Kavanaugh wrote. “The lack of clear congressional authorization matters.”
Adler said his review of Kavanaugh’s decisions show him to be “evenhanded,” using the same evaluation of agency actions whether they could be characterized as liberal or conservative.
Others, such as Washington lawyer Eric Citron, who analyzed Kavanaugh’s record for Scotusblog.com, found the judge to be a “reflexive” friend of business.
“Those who worry that Kavanaugh’s judicial philosophy will stand as a barrier to government regulation of big businesses — including when it comes to policies like net neutrality — are right to feel that way,” he wrote. “Conversely, those who celebrate that philosophy as tending to make the market and the country a freer place will find a like-minded champion on the Supreme Court.”
MILLIONS OF PAGES
Kavanaugh’s more than 300 public opinions — about a third of them dealing with the scope of regulatory agencies — have been scrutinized as Senate Democrats call for the release of more documents from Kavanaugh’s time as a lawyer for the George W. Bush White House.
Officials at the National Archives have said they have “several million” pages of Kavanaugh documents, and that they cannot finish reviewing them all to determine which can be made public until October. Kavanaugh’s confirmation hearing is set for the first week in September.
An additional 88,000 pages of documents were released Sunday, and a review revealed no obvious bombshells. Some of the documents show Kavanaugh dealing with issues that arose in the immediate aftermath of the Sept. 11, 2001, attacks, while others are more trivial — questions to Kavanaugh about whether to single-space or double-space memos, as well as Heritage Foundation invitations sent to hundreds of White House officials. There are questions about parking. The pages include thousands of copies of the same documents, as well as lengthy news releases and clips sent to his attention.
So far, Senate Judiciary Committee Chairman Charles Grassley’s team of lawyers and aides have reviewed more than 200,000 pages of documents while vetting Kavanaugh. These include legal opinions he has written, his committee questionnaire and, mostly, documents from his tenure working as associate counsel for Bush and as a deputy in independent counsel Kenneth Starr’s investigation into President Bill Clinton’s White House.
Sen. Dianne Feinstein, D-Calif., the Judiciary Committee’s top Democrat, said in a letter to Grassley on Friday that the panel is unjustifiably keeping certain documents confidential.
“Simply stated, this is unacceptable,” she wrote. “The senators and the public must have access to Mr. Kavanaugh’s full record. Additionally, this committee has never allowed a third party to control what information is kept confidential, and should not do so now when we are considering a lifetime appointment to the U.S. Supreme Court.”