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What Trump's pick for Supreme Court could mean for states' rights

Elaine S. Povich and Alayna Alvarez, Stateline.org on

Published in News & Features

WASHINGTON -- 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.

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