The Key to Kavanaugh: Rolling Back the Administrative State 

Moments after federal appellate judge Brett M. Kavanaugh was nominated for the Supreme Court, Tom Perez of the Democratic National Committee said in a statement that “a vote for Kavanaugh would be a vote to rip health care from American families and deny women their constitutional right to make their own health care decisions.” Many progressives responded by following the same line, but former Bush administration officials UC Berkley law professor John Yoo and St. Thomas School of Law professor Robert J. Delahunty took a different view.

In Kavanaugh’s record, they found no major opinions on abortion, gay marriage and such. Instead, Kavanaugh’s record “creates a deeper challenge to liberalism: rolling back the administrative state,” which the authors describe as “the great threat to individual liberty today. As Yoo and Delahunty explain, “progressives have evaded the Constitution’s checks and balances on the federal government by unceasingly expanding its regulatory reach, transferring the actual authority to make the rules from Congress to unelected bureaucrats, and then demanding that judges defer to the results virtually without question.” Through the “judicial-agency industrial complex,” progressives have “imposed their views on the American people and the states with little democratic accountability.” 

Judge Kavanaugh, the authors say, “has repeatedly challenged the foundations of this runaway state” and they cite his opinion on Consumer Financial Protection Bureau (CFPB). This federal agency “violated the Constitution because it vested all power over consumer finance in the country in one person, but insulated him from removal by the president.” The CFPB, created during a recession, is also funded by the Federal Reserve, so it also avoids congressional oversight and accountability. 

The Trump administration has not moved to eliminate the CFPB and the Supreme Court has done little to restrain the administrative state that Yoo, Delahunty and many others perceive as a threat to liberty. So if Brett Kavanaugh does wind up on the Supreme Court he will face a challenge far greater than the so-called social issues.

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K. Lloyd Billingsley is a Policy Fellow at the Independent Institute and a columnist at The Daily Caller. 

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