Kavanaugh seen as regulatory foe
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 one-page 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.”
“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.”