American Prospect Commentary: Judge Kavanaugh’s Deregulatory Agenda

by Thomas McGarity

July 30, 2018

This commentary was originally published by The American Prospect. 

Most of us take for granted the federal regulations that make our air cleaner, our drinking water purer, our food, highways, and workplaces safer, and our economic transactions less vulnerable to fraud and abuse. And few of us realize the extent to which those protections are subject to reversal by federal courts applying legal principles prescribed by the Supreme Court. If confirmed to the Supreme Court, Judge Brett Kavanaugh would be a fervent vote against even well-established forms of regulation.

A telling example of Kavanaugh’s ideological aversion to even minimal government regulation is his dissent in a case in which the Occupational Safety and Health Administration (OSHA) fined SeaWorld of Florida following a tragic incident at its Orlando facility in which a killer whale named Tilikum pulled a trainer off a platform and held her underwater until she drowned. A panel of the D.C. Circuit Court of Appeals, in an opinion written by Judge Merrick Garland, upheld OSHA’s conclusions that training killer whales was a recognized occupational hazard and that there were feasible ways to reduce that hazard. Tilikum had previously killed another trainer. The hazard could be substantially reduced by requiring trainers to keep a greater distance from the whales or providing a clear plastic barrier that would allow them to guide the movements of whales without risking attacks. The Court therefore upheld OSHA’s modest $7,000 penalty.

Kavanaugh’s dissent did not focus on the facts. Instead, he attacked the proposition that Congress meant to empower OSHA to regulate the professional sports and entertainment industries. In his mind, the real questions before the court were when “should we as a society paternalistically decide that the participants in ... sports and entertainment activities must be protected from themselves” and, more important, “who decides that the risk to participants is too high?” Kavanaugh argued that the participants in those activities were well aware of the risks and elected to participate anyway, and he suggested that government efforts to make those activities safer would cause employers to abandon them altogether.  

This is the same argument that employers raised in the early 20th century when progressive state governments wanted to protect workers from the frightful hazards of industrial workplaces. A Supreme Court committed to a limited government ideology overturned many protective Progressive Era laws, and the carnage in the workplace continued until the Court rejected that ideology during the New Deal and Congress created OSHA in 1970. Kavanaugh’s beef was with the very fact of a powerful OSHA, and he hoped to limit its power by creating an exception for the sports and entertainment industries.

Read the full commentary at The American Prospect.

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Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas in Austin. He is a member of the board of directors of the Center for Progressive Reform, and a past president of the organization.

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