By: Elaine S. Povich and Alayna Alvarez
Supreme Court nominee Brett Kavanaugh’s rulings on federal regulatory power, and his approach to the 14th Amendment’s Equal Protection Clause, provide the best hints of how he might rule on cases involving states’ rights.
Kavanaugh was nominated by President Donald Trump Monday to take the seat being vacated by Justice Anthony Kennedy. Kavanaugh clerked under Kennedy.
As a judge on the D.C. Circuit Court of Appeals, Kavanaugh has had the chance to rule on cases involving the balance of state and federal power. In one case, he concluded that the Environmental Protection Agency overstepped its bounds in regulating greenhouse gases. In another, he questioned the setup of the Consumer Financial Protection Bureau and whether it had too much power outside of congressional oversight.
But Kavanaugh hasn’t always ruled against regulation: In 2010, he upheld the EPA’s oversight of a California rule limiting emissions from refrigeration units in trucks. Ernest Young, a Duke University law professor, said Kavanaugh’s opinions hint at a judge interested in states’ point of view.
“His general, somewhat more skeptical approach toward federal agencies, which a lot of people have talked about, may have an echo in this area by being a little more protective of states’ role in these schemes,” Young said in an interview. “But it’s just a couple of cases.”
In many ways, the details of how the federal system operates would be worked out through federal statute, Young said. “And so how you approach those statues, which are often ambiguous about the federal structures they’re creating, is going to be really important in fixing where the balance is going to be between the states and the national government.
“My impression is he’s very sophisticated about this stuff, cares about the states, cares about the idea of checks and balances,” Young said.
Sam Erman, associate professor and constitutional law expert at the USC Gould School of Law, said decisions limiting federal power might portend good things for states.
“The states are the ones who fill in the gaps when the federal government doesn’t act. If he’s limiting federal power for any reason, he’s creating opportunities for the states to assert themselves. Skepticism of federal power and belief in states’ rights have a lot in common and share intellectual roots.”
An upcoming civil asset forfeiture case could indicate how a Justice Kavanaugh might rule on cases involving the Equal Protection Clause, a significant legal element in many state-based issues before the nation’s highest court.
If confirmed by fall, as the president has suggested, Kavanaugh could take his place just in time to consider the case, Timbs v. Indiana. It involves an Indiana man who was forced to surrender his $40,000 Land Rover to the state after he pleaded guilty to selling undercover officers 4 grams of heroin in 2013. He agreed to serve one year of house arrest and pay about $1,200 in court fees.
But Tyson Timbs sued over the seizure of his SUV, arguing that the taking violated the Eighth Amendment ban on “excessive fines.” Lower state courts agreed, noting that the maximum penalty for his violation was a $10,000 fine — a quarter of the value of the vehicle.
The Indiana Supreme Court reversed that decision, saying that the “excessive fines” clause did not stop the state from getting the truck because the United States Supreme Court has not given clear direction that the clause applies to the states.
The 14th Amendment’s Equal Protection Clause has been used by the Supreme Court in landmark cases such as Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights) and Bush v. Gore (the recount), to set limits on states’ rights.
Civil asset forfeiture puts hundreds of millions of dollars into state and federal coffers every year. And according to a 2015 report by the Institute for Justice, a nonprofit civil liberties law firm, net proceeds from civil forfeitures across 14 states more than doubled between 2002 and 2013, jumping from around $100 million to $250 million.
The report said assets in forfeiture funds within the U.S. Department of Justice and the U.S. Treasury Department exploded during this time as well, climbing from less than $1 billion in 2001 to nearly $4.5 billion in 2014.
A number of states are considering changes. In Ohio, for example, Republican Gov. John Kasich signed a measure last year barring forfeitures under $15,000 without a criminal conviction.
Kavanaugh has shown a particular interest in the 14th Amendment from his earliest law school days at Yale University. In a 1989 piece for the Yale Law Journal, he discussed a 1986 Supreme Court ruling in Batson v. Kentucky that outlawed using race as the sole criteria for preemptive challenges to jurors, under the Equal Protection Clause.
Kavanaugh wrote the decision did not lay out enough specific criteria on how to strike jurors aside from their race, and made some suggestions that were later employed by courts. He brought up that issue again in 2006, in his hearing on his nomination as a federal judge for the D.C. Circuit, saying Batson was “one of the great Supreme Court decisions ever decided.”
Mark Weaver, a former Ohio assistant attorney general and an adjunct professor of government at the University of North Carolina, Chapel Hill, said he thinks it would be fair for senators to ask Kavanaugh how far he’d go in basing his rulings on the 14th Amendment, which was ratified in 1868.
“He praised the Equal Protection Clause as a way to get to the proper results,” Weaver said. “A lot of scholars think the Equal Protection Clause has been overused. It was ratified largely to allow the newly freed slaves to have the same rights as other Americans. It has come to be used as something of a magic wand for judges who want to conjure up a certain result. That doesn’t appear to be Judge Kavanaugh’s approach. His comments at the first confirmation were puzzling.”
Those people involved in the Timbs case think Kavanaugh is likely to rule against the Indiana court.
“I think that judge Kavanaugh like the other justices of the court is likely to accept the principle that the U.S. Constitution provides a floor for Americans’ constitutional rights,” said Wesley Hottot, an attorney with the Institute for Justice who will argue the Timbs case before the high court. “States are not allowed to go below that floor.”
A more neutral court observer, Lino Graglia, a professor at the University of Texas School of Law, said he thinks Kavanaugh would be in the mold of Kennedy, the outgoing Justice he has been nominated to replace.
“There’s no reason to think that Kavanaugh would be different from Kennedy in terms of Congress’ power under the Commerce Clause, and therefore on the states’ power,” he said.
Looking to how Kavanaugh might follow Kennedy on the Timbs case specifically, Graglia said Kennedy was something of a moralist. “If something really seemed immoral, then it should be unconstitutional. It certainly seems that forfeiting your property in those cases seems totally unfair and unjust.”
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