Supreme Court Nominee Non-Deferential to Federal Agencies

July 11, 2018

President Trump’s Supreme Court nominee Brett Kavanaugh has begun his Capitol Hill visits to build support from Republican lawmakers for a contentious confirmation battle with Senate Democrats. Advocacy groups for and against Judge Kavanaugh have promised to spend millions of dollars to sway the Senate.

Business groups have begun analyzing Kavanaugh’s opinions from the D.C. Court of Appeals on business-related cases, especially challenges to federal regulations. As a judge on the highly influential D.C. Circuit since 2006, Kavanaugh has heard numerous administrative law cases and challenges to federal regulations. He has a track record of not affording federal agencies broad deference in their interpretations of unclear or ambiguous statutes, which tends to result in those agencies promulgating far- or over-reaching regulations.

Kavanaugh wrote in a 2016 opinion, “In many ways, [the] Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch. Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”

The Chevron doctrine stems from a 33-year-old U.S. Supreme Court ruling dealing with EPA’s interpretation of the Clean Air Act. At the time the Chevron case was decided, the Reagan administration was attempting to pare back federal regulations.

Critics have cited this deferential approach as the basis for several administrations, particularly that of former President Obama, to promulgate novel and controversial regulations.

Kavanaugh has been critical of EPA regulations, recently vacating the Agency’s regulation of hydrofluorocarbons stating, “However much we might sympathize or agree with EPA’s policy objectives, EPA may act only within the boundaries of its statutory authority.”

“Judge Kavanaugh’s confirmation to replace retiring Justice Anthony Kennedy will be an all-out battle in a narrowly-divided Senate and will spill over to November’s midterm elections,” said ILMA CEO Holly Alfano. “What is overlooked in the confirmation fight is how President Trump already has remade the federal judiciary in his 18 months in office, replacing some 12 percent of appellate court judges with more to follow.”