Brett Kavanaugh

Brett Kavanaugh of Maryland is a judge of the U.S. Court of Appeals for the District of Columbia Circuit. He was appointed by President George W. Bush in 2003 and confirmed in 2006. While serving in the Office of Independent Counsel, he worked on the Bill Clinton impeachment investigation. He received his law degree from Yale Law School and clerked for Justice Anthony M. Kennedy.

District of Columbia v. Heller (Heller II)

This case involved a challenge to D.C. gun regulations which required registration of firearms and prohibited several semi-automatic weapons. The court upheld the registration requirements. The court declined to consider whether the Second Amendment protected a right to possess semi-automatic rifles and large-capacity magazines, but stated that if it did, the regulations did not substantially infringe upon that right. Judge Kavanaugh dissented, stating that the court should have struck down the ban on semi-automatic rifles. Judge Kavanaugh reasoned that semi-automatic rifles are no different from semi-automatic handguns, which the Supreme Court in Heller I already ruled could not be banned.

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Garza v. Hargan

An undocumented woman at a refugee shelter sought an abortion. The shelter refused to transport her to a clinic to receive the procedure because of a directive prohibiting federal shelters from facilitating abortions. Judge Kavanaugh’s original panel issued a per curiam decision finding that the shelter would not have to transport her to receive an abortion if the woman could be placed in the care of a sponsor in a timely enough fashion so as not to unduly burden her right to an abortion. The D.C. Circuit en banc disagreed, finding that the shelter’s refusal to transport the woman was a complete prohibition of her right to make a reproductive choice. In dissent, Kavanaugh argued that the majority’s decision created “a new right for unlawful immigrant minors . . . to obtain immediate abortion on demand.”

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PHH Corp. v. Consumer Financial Protection Bureau

The D.C. Circuit upheld the constitutionality of the Consumer Financial Protection Bureau. In dissent, Judge Kavanaugh argued that limiting the ability of the President to remove the head of an agency like the CFPB unduly constrained executive power. In his reasoning, Judge Kavanaugh embraced the theory of the unitary executive. He criticized the administrative state, stating that it acted as “headless fourth branch” of government, holding enormous power without the usual checks and balances provided by the Constitution. Because the President holds very little power over the director of the CFPB, Judge Kavanaugh reasoned the CFPB was unconstitutional. Judge Kavanaugh also noted that the CFPB might be constitutional as an executive agency with a director removable at will by the President.

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Mexichem Fluor, Inc. v. EPA

In this administrative law case, the court considered whether the Environmental Protection Agency had statutory authority to issue a rule regulating the use of hydrofluorocarbons (HFCs). HFCs contribute to climate change, and the EPA issued a rule requiring manufacturers to replace HFCs with safe chemicals. In an opinion by Judge Kavanaugh, the court held that the EPA exceeded its authority under the Clean Air Act. Judge Kavanaugh wrote that the text of the Act unambiguously prohibited the EPA from requiring the replacement of HFCs with other chemicals.

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The President and the Independent Counsel

In this 1997 law review article, Judge Kavanaugh criticized the now-expired independent counsel law. In his critique, Judge Kavanaugh lamented that independent counsel investigations are susceptible to politicization and could exceed their initially planned scope. He noted that by working through the Department of Justice, independent counsels can never truly be “independent,” as they will face an inherent conflict of interest. As such, independent counsels should not be permitted to indict a sitting president or attorney general. Judge Kavanaugh then stated that Congress should make a law establishing that the President can only be indicted with a criminal charge after he leaves office or is removed via impeachment proceedings. Judge Kavanaugh also criticized the reasoning of Justice Scalia’s dissent in Morrison v. Olson. Ultimately, Judge Kavanaugh argued for a special counsel system whereby the prosecutor is appointed by the President and confirmed by the Senate.

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