Almost immediately after President Trump announced the nomination of Brett M. Kavanaugh to the Supreme Court, his administration sent out a list of talking points to business-friendly surrogates. Headlined “Judge Brett Kavanaugh On Overregulation,” it elaborated how Kavanaugh “protects American businesses from job-killing regulation.” That pleasant pablum disguises what Kavanaugh really thinks of regulations protecting all of us.
Here’s the sort of burdensome regulation Kavanaugh would like to protect us from: In 2010, SeaWorld trainer Dawn Brancheau was winding down a show with killer whale Tilikum called Dine with Shamu at the company’s Orlando aquatic park. Suddenly, without warning, the animal seized Brancheau. In front of about 50 children and their families, the killer whale mauled Brancheau to death. (You may remember this incident from the 2013 documentary “Blackfish.”) The Occupational Safety and Health Administration fined SeaWorld $75,000, claiming the company could have done more to ensure the safety of its workers, especially because Brancheau was the third death Tilikum was responsible for, not the first. When SeaWorld (represented by Antonin Scalia’s son Eugene) appealed to the U.S. Court of Appeals for the District of Columbia Circuit, the majority of the three-judge panel ruled against the park, as well. But one judge dissented: Kavanaugh.
In his view, a career as an animal trainer was as dangerous as playing in the National Football League or racing cars. Therefore, he argued, OSHA can either regulate SeaWorld and NASCAR or neither. (The majority opinion pointedly noted, “No one has described SeaWorld’s killer whale performances as a ‘sport.'”)
I would venture a guess that this is not a policy many of us support.
Regulations are always a popular punching bag in U.S. politics. Ronald Reagan campaigned against “burdensome” regulations. So did Trump, who promised to eliminate two federal rules for every single one his government enacted. (He hasn’t done that, of course.) Polls routinely show somewhere between 45 to 50 percent of the population agrees that the government imposes too many rules on businesses.
But as Democrats look for ways to hinder Kavanaugh’s confirmation, they might want to consider what happens when voters are asked about specific rules. In that case, a majority of us apparently think regulation is a very good thing indeed:
- A survey conducted last year by Americans for Financial Reform and the Center for Responsible Lending found more than 90 percent of voters said regulation of financial services and products was important or very important. In 2012, 60 percent said the sector needed more oversight, not less.
- Gallup recently found nearly 2/3 of those surveyed thought more regulation was needed to protect the environment, with a majority claiming that taking care of the environment should be prioritized over economic growth.
- More than four out of five Americans support keeping the net-neutrality regulations done away with by the Trump administration appointee to chairman the Federal Communications Commission, Ajit Pai. That includes 75 percent of the Republicans surveyed by the University of Maryland’s Program for Public Consultation.
These are all things Kavanaugh, who did his best to come across at Monday’s news conference with Trump as just an aw-shucks kind of guy, is almost certainly going to strike down when given the opportunity. He has asserted that the Consumer Financial Protection Bureau was unconstitutional, claimed net neutrality impinges on the free-speech rights of corporations and argued the Environmental Protection Agency overstepped its legal mandate when under the Obama administration, it enacted regulations designed to combat greenhouse-gas emissions.
In these decisions, as in the SeaWorld case, he either dissented or was ultimately overruled. (The majority in the SeaWorld case included one Merrick Garland.) But that’s less likely to be the case going forward. The Supreme Court’s rightward shift accelerated with last year’s appointment of Neil M. Gorsuch. Since Gorsuch assumed his (essentially stolen) seat on the nation’s highest court, the Supreme Court has decided that public-sector unions need to ask the people they represent to opt in to paying dues, ensured companies can demand their employees agree to mandatory arbitration if they want a job and made it harder for the government to bust companies for monopoly-like practices.
When people bash regulations, they forget an important fact: Many of those regulations now taken for granted came about not because things were wonderful, but because they were not. Poverty was rampant during the first gilded age, and working conditions were frequently inhumane. Politicians didn’t enact the rules and regulations that make our lives healthier, wealthier and safer because they had a feckless hatred for business. Changes came about slowly, one by one, often after hard-fought battles. If the Senate votes to confirm Kavanaugh, it’s quite possible worker and consumer “protections” in the United States will increasingly resemble our brutal past, even as much of the rest of the world continues to move forward.
