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Trump Makes a Shrewd Political Move with Supreme Court Pick

July 10, 2018 in Economics

By Ilya Shapiro

Ilya Shapiro

By picking Brett Kavanaugh as his Supreme Court
nominee, President Trump showed that credentials and connections
still matter — when backed up by results. One of the most
scholarly members of the judiciary, Kavanaugh’s more than 300
opinions are read widely and influence courts across the country
— including the one that he now hopes to join. There are few
if any more respected lower-court judges.

More important than his erudition is Kavanaugh’s intense
commitment to constitutional structure. As Anthony Kennedy,
the justice he clerked for and now seeks to
succeed, often emphasized, this is vital not simply to the
functioning of our government, but to securing our freedom.

In his dozen years on the US Court of Appeals for the DC
Circuit, his docket was heavy with cases involving administrative
agencies and their place in our institutional design. His opinion
in PHH Corp. v. Consumer Financial Protection Bureau (2016), for
example, struck down the removal protections granted to that
embattled agency’s director, holding that even if it were
permissible to protect members of a multi-person commission from
removal, protecting the sole director in this manner was a
constitutional bridge too far.

The Kavanaugh selection
seems likely to secure the bulwarks restraining the expansion of
government against the onslaught of the swamp.

In Free Enterprise Fund v. Public Company Accounting
Oversight Board
(2008), he also would have found certain
removal protections unconstitutional — and his dissent was
vindicated by the Supreme Court. Also notable are his opinions in a
string of Clean Air Act cases that ultimately made it to the
Supreme Court, pushing back on executive agencies that take too
much power for themselves.

While he has not attacked the Chevron doctrine — the idea
that judges should defer to agency interpretations that
aren’t “arbitrary and capricious” — as
directly as some others, he will likely make common cause with
Justices Neil Gorsuch and Clarence Thomas (and others) in curbing
bureaucratic excess.

Last year, for example, he wrote an opinion in United States
Telecom Association v. FCC that outlined a “major
rules” doctrine, in which novel agency rulemakings with
profound economic consequences are presumed invalid. That case
dealt with net neutrality, but it resonates widely in a time when
super-statutes like ObamaCare and Dodd-Frank reorganize our

In a speech at Notre Dame he advocated that judges look for the
best reading of a text, rather than hunt for ambiguities.
That’s one of the best indications yet that a Justice
Kavanaugh would leave “fixing” statutes to legislators
rather than having judges do so, or even worse, regulators.

The one concern that some have about Kavanaugh is that he might
be …read more

Source: OP-EDS

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