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."
'End of regulatory state'
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 5-4 ruling in Massachusetts vs. EPA that in 2007 said greenhouse gases blamed for global warming could be regulated under the Clean Air Act. The justice he would replace, Anthony Kennedy, joined the court's liberals to form a 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."
Julia Stein, a University of California at Los Angeles law professor who specializes in environmental law, wrote in an analysis that Kavanaugh's rulings would limit the agency's efforts in the face of congressional gridlock.
"In a world where comprehensive climate change legislation appears to be a long way off, a Justice Kavanaugh would likely present a hurdle to future agency attempts to regulate climate change within the existing statutory framework," she wrote.
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 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."
Issue with agencies' role
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.
In one case he ruled 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.
A majority of the three-judge appeals panel backed OSHA. But Kavanaugh dissented, calling OSHA's action "arbitrary and capricious" because 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.
He wrote that the Labor Department "lacks authority to regulate the normal activities of participants in sports events or entertainment shows."
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.
The judge in some cases has upheld EPA regulations, and in at least one case found that environmental groups had the legal standing to intervene in a case, Adler said.
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."