Kavanaugh keen on deregulation
Long opposed to administrative state, court nominee likely to limit agencies
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 protects American businesses from illegal job-killing regulation,” the memo said. “Judge Kavanaugh helped kill President 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 there is no more important issue to the Trump administration than bringing to heel the
federal agencies and regulatory entities that, in Kavanaugh’s words, form “a headless fourth branch of the U.S. Government.”
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’ rule-making 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.”
Kavanaugh’s confirmation, for instance, could call into question the Supreme Court’s 5-to-4 ruling in Massachusetts v. EPA that in 2007 said greenhouse gases blamed for climate change could be regulated under the Clean Air Act. The justice he would replace, Anthony Kennedy, joined the court’s liberals to form the slim majority.
The ruling opened a new front for EPA regulation, but Kavanaugh has routinely ruled against the agency’s efforts.
“EPA’s well-intentioned policy objectives with respect to climate change do not on their own authorize the agency to regulate. The agency must have statutory authority for the regulations it wants to issue,” Kavanaugh wrote in a recent opinion about manufacturers using hydrofluorocarbons, or HFCs, potent greenhouse gases.
He added: “Congress’ failure to enact general climate change legislation does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.”
Kavanaugh has participated in more than 300 opinions, about a third of them dealing with the scope of regulatory agencies.
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 H. 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.”
His positions often take issue with the role of independent agencies — from the late 1800s in regulating railroads through the 2009 financial reforms — established with the purpose of protecting the public from more powerful individuals and corporations. Over time, these agencies often adapt to deal with new problems in their areas not specifically mentioned by Congress when they were created.
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.
Kavanaugh is especially concerned with what is called the “major rules doctrine.” Congressional authorization would be needed for any regulation of vast economic or political significance — a major rule.
Kavanaugh’s opinions have drawn opposition from groups not normally outspoken on judicial appointments. The Natural Resources Defense Council has announced it opposes Kavanaugh’s nomination; its only prior public opposition to a Supreme Court nominee was against Justice Samuel Alito.
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.”