Brett Kavanaugh's track record

Politico 3 months ago

Here is a sampling of Supreme Court nominee Brett Kavanaugh's most important decisions and past statements about policy issues:

Abortion and birth control: Kavanaugh argued in a 2015 dissent that Obamacare's mandate for contraception coverage infringed on the rights of religious organizations, a stance some religious liberty groups have hailed. He also dissented from a decision last fall that permitted an undocumented immigrant teen to have an abortionalthough some conservatives have accused him of being too cautious in that case, and have even called it grounds for keeping him off the Supreme Court.

Obamacare: He wrote a 2011 decision that his critics say laid the groundwork for Chief Justice John Roberts to later uphold the constitutionality of the Affordable Care Act — under the reasoning that its mandate for individuals to buy health insurance could be considered a tax.

Digital privacy: He joined other judges in rejecting a challenge to the National Security Agency's warrantless collection of phone “metadata” — writing that the operation, exposed by former NSA contractor Edward Snowden, "is entirely consistent with the Fourth Amendment." Furthermore, he wrote, a "critical national security need outweighs the impact on privacy occasioned by this program."

He had a more mixed record in a case debating whether authorities needed a warrant to place a GPS tracker on a suspect’s car. On one hand, he and other Republican judges said, the suspect had no reasonable expectation of privacy in his public movements. But Kavanaugh separately said the government might have violated the suspect's property rights by tampering with his vehicle — an argument that Justice Antonin Scalia later cited in ruling that authorities indeed need a warrant.

Workers’ rights: Kavanaugh wrote a 2016 opinion saying employers can require workers to waive their right to picket in arbitration agreements.

Immigration: Supporters of immigration restrictions praise Kavanaugh for two court cases: In one, he opposed granting special visas for Brazilian workers when American workers could also do the same job. In the other, he argued that a union election was void because undocumented immigrants had voted in it and "tainted" the result.

Education: Kavanaugh has suggested he may be open to widening the flow of public funding to religious schools. In an essay last year for the American Enterprise Institute, he cheered the late Chief Justice William Rehnquist's efforts to reverse prior Supreme Court attempts at "erecting a strict wall of separation between church and state" — especially when it comes to schools. He also predicted during a CNN appearance in 2000 that the court would one day uphold school vouchers.

Food labeling: He sided against U.S. meatpackers who argued that the Department of Agriculture was violating the First Amendment by requiring labels disclosing where each step of the meat production process took place. In a concurring opinion, Kavanaugh said the government has historically had an interest in supporting American manufacturers, farmers and ranchers against foreign competition. (Ultimately, Congress rescinded the regulation.)

Net neutrality: He called the FCC’s net neutrality order an "unlawful” First Amendment violation in a 2017 dissent.

Federal regulations writ large: Kavanaugh’s net neutrality dissent also suggested he’s skeptical about the Supreme Court’s so-called Chevron doctrine, a 1984 precedent that said courts should tend to defer to federal agencies’ regulatory decisions when the agencies are interpreting ambiguous statutes. A move by conservative justices to overturn Chevron could lead to far tighter restrictions on federal regulatory powers.

In particular, Kavanaugh is widely seen as critical of many Obama-era rules from the EPA. In 2012, for example, Kavanaugh wrote a decision that rejected an EPA rule to curb air pollution that crosses state lines. He has often leaned toward curbing the EPA’s powers when he believed the agency lacked specific authorization from Congress, including in courtroom comments he made around the Obama administration’s climate rules for power plants.

Taxes: The IRS doesn't have the power to regulate paid tax preparers, Kavanaugh wrote in a 2014 opinion. Such oversight could make sense, he said, but "that is a decision for Congress and the President to make if they wish by enacting new legislation."

Financial regulations: Kavanaugh delivered a huge victory to conservatives in October 2016 when he wrote an opinion declaring the structure of the Consumer Financial Protection Bureau — a powerful banking industry watchdog first envisioned by Elizabeth Warren — to be unconstitutional. Writing for a three-judge panel, Kavanaugh said the 2010 Dodd-Frank law had wrongly placed “enormous executive power” in the CFPB’s single director, which Republicans and the banking industry want to replace with a multi-member commission. Supporters of the CFPB accused Kavanaugh of acting as a partisan activist, and the constitutionality of the CFPB's structure was later upheld.

Dan Diamond, Andrew Hanna, Catherine Boudreau, Alex Guillén, Zach Warmbrodt, Benjamin Wermund, Margaret Harding McGill, Aaron Lorenzo and Eric Geller contributed to this report.

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