How Kavanaugh could impact state
Brett Kavanaugh’s elevation to the U.S. Supreme Court could solidify its conservative majority for a decade or more and affect issues as profound as climate change, abortion, health care and the scope of presidential power. And for California, the stakes also include an array of pending and future legal battles on topics ranging from immigration to vehicle emissions, net neutrality and the 2020 census.
California Attorney General Xavier Becerra has filed or joined dozens of lawsuits challenging Trump administration decisions to roll back regulations issued under President Barack Obama. The administration, meanwhile, has sued the state over its sanctuary law, which limits cooperation between local police and federal immigration agents, and the net neutrality law that requires internet service providers to treat all traffic equally, rather than speeding up or otherwise favoring content from websites that pay more.
Kavanaugh did not address most of those issues directly in his 12 years as a federal appeals court judge before President Trump nominated him in July to succeed the retiring Justice Anthony Kennedy. One exception involved nationwide net neutrality rules, which Kavanaugh voted to strike down in a dissenting opinion last year as a violation of providers’ free speech and an abuse of federal regulatory authority. That was before a Trump-appointed Federal Communications Commission majority repealed the rules.
But Kavanaugh has given hints of how he would view
some of the California cases should they make it to the court. He has been frequently skeptical of government’s regulatory authority, often a critical issue in environmental cases. In rulings and academic writings, he has also been a strong supporter of presidential authority, saying a president who considers a law unconstitutional can refuse to enforce it.
“I think he’ll generally favor federal executive power over state authority, at least when that federal executive power is exercised by an administration with a deregulatory agenda,” said Dave Owen, an environmental law professor at UC Hastings in San Francisco.
But another Hastings environmental law professor, David Takacs, said Kavanaugh would have to weigh his deference to presidential authority against his commitment to “federalism,” or state autonomy.
“Kavanaugh would likely defer to executive branch decision-making, but also supposedly stands for a conservative view of states’ rights,” Takacs said.
Here is a look at some of the California cases:
Immigration
Sanctuary laws: In California, local governments, including San Francisco, and the state are locked in a legal battle with the administration over the the validity of the so-called sanctuary state law and U.S. Attorney General Jeff Sessions’ attempt to punish state and local governments that refuse to help enforce federal immigration laws. So far, federal courts have sided with the state and the local governments.
Deportations: California has also joined in the fight to block the Trump administration’s campaign to seal the nation’s borders and ramp up arrests and deportations of undocumented immigrants, and its attempt to deport more than 700,000 undocumented immigrants who came to the U.S. as children.
The state has also sued to block the administration’s cancellation of protections for 300,000 migrants who were permitted to live in the U.S. after their homelands were struck by wars or natural disasters. Lower courts have largely ruled in the immigrants’ favor.
Outlook: The court has been divided on immigration, but it deferred to Trump’s executive authority in the 5-4 ruling in June that upheld the president’s ban on U.S. entry from a group of mostly Muslim countries. Kavanaugh appeared to share that view of presidential authority in the handful of immigration cases he considered on the appeals court.
In a 2008 case, he wrote in a dissenting opinion that “illegal immigrant workers” had no right to join a labor union, despite the majority’s contention that the Supreme Court had reached the opposite conclusion in 1984. He also wrote a dissent that would have prevented a Brazilian steak house from bringing chefs to the U.S. under a visa program that required “specialized knowledge,” disputing his court’s majority view that the chefs’ cultural knowledge could be considered “specialized.”
In another dissent, Kavanaugh said last year that an undocumented, pregnant 17-year-old did not have the right to an abortion while in federal immigration custody.
“I think (Kavanaugh) will generally be amenable to the federal government’s enforcement efforts, providing wide deference to the executive,” said Pratheepan Gulasekaram, a professor of immigration law at Santa Clara University. But he said the sanctuary cases, pitting federal against state and local authority, will reveal whether Kavanagh is “a fair-weather federalist.”
Reproductive rights
California has a stake in a reproductive-rights case that could reach the Supreme Court. The case involves a challenge to a Trump administration rule allowing employers to deny birth control coverage to women for religious or moral reasons. A Bay Area federal judge blocked enforcement of the rule in December, and a federal appeals court will hear the administration’s appeal next week.
Kavanaugh seems likely to side with the administration. In a dissent in 2015, he said employees and educators should be allowed to deny contraceptive coverage for religious reasons. And on a court that has been bitterly divided over abortion, Kavanaugh has made his position clear, both in his opinion on the undocumented immigrant seeking an abortion and in his recent praise of then-Justice William Rehnquist’s dissent in Roe vs. Wade, the 1973 ruling that legalized abortion nationwide.
Environment
California has sued the Trump administration for repealing rules that limited emissions of climate heating methane gas from federal and tribal lands; restricted the pollutionprone drilling technique known as fracking, or hydraulic fracturing, on federally managed lands; and set new energy-saving standards for appliances such as portable air conditioners and building heaters.
The state is also preparing for a court battle with the administration over its decades-old authority to set its own, stricter standards for vehicle emissions of greenhouse gases. The Environmental Protection Agency has announced plans to revoke California’s waiver and set a single standard for the nation. Attorneys for the state say the EPA has not provided a rational explanation for its action.
Outlook: Kavanaugh’s record in environmental cases prompted the Sierra Club and other conservation groups to oppose his appointment.
He wrote a ruling in 2015 that barred the EPA from requiring states to limit air pollution that is blown across state lines to their neighbors. That ruling was later partially reversed by the Supreme Court. Kavanaugh wrote another decision last year overturning an EPA rule that required manufacturers of products such as air conditioners and aerosols to stop using climate changing ingredients called hydrofluorocarbons. The Supreme Court, with Kavanaugh not participating, denied an appeal of his ruling on Tuesday.
UC Hastings’ Takacs noted that Kennedy had voted with the majority in the Supreme Court’s most important environmental case in recent years, a 5-4 ruling in 2007 that authorized the EPA to regulate greenhouse gases as a form of air pollution. Kavanaugh, Takacs said, mostly likely would have voted the other way.
California is one of several states challenging the Trump administration’s plan to ask participants in the 2020 census whether they are U.S. citizens, a question that was last included in 1950. The administration says the inquiry would aid in enforcement of civil rights laws, but opponents say it is intended to reduce participation in high immigrant states, costing them congressional representation and billions of dollars in federal funds.
Outlook: The case will test the court’s deference to executive authority. The justices could tip their hand shortly if they grant the Trump administration’s request to block states from questioning Commerce Secretary Wilbur Ross and another official about their motives in adding the citizenship question.
Net neutrality
The Trump administration has sued California in a federal court in Sacramento over its new law. The critical issue appears to be whether a state’s attempt to regulate internet service providers interferes with interstate commerce, which is in the federal government’s domain — although Trump’s Federal Communications Commission members disavowed any regulatory authority of their own. Kavanaugh’s argument last year that the regulation violates free speech could give the court a formula for striking the law down altogether.