When President Donald Trump announced Brett Kavanaugh as his Supreme Court nominee to replace Justice Anthony Kennedy when he retires at the end of July, liberal commentators sounded the alarm about what his service could mean for subjects controversial issues, including abortion and health care. Add another topic to the list: consumer rights.
“There’s a lot not to like on Brett Kavanaugh’s record — including his hostility toward consumers,” Senator Elizabeth Warren, a Massachusetts Democrat who largely created the Consumer Financial Protection Bureau as part of the Dodd-Frank reforms in 2010, wrote on Twitter TWTR ,
July 10.
“Judge Kavanaugh was a reckless, partisan jurist who always seemed more interested in pleasing Wall Street and the conservative political establishment than defending the Constitution,” wrote Karl Frisch, executive director of the advocacy organization. leftist Allied consumers. Progress, in a press release. “It would be a disaster for consumers and the CFPB if upheld at the Supreme Court.”
Kavanaugh has support within the business community
Others disagree. The National Federation of Independent Business, a Nashville-based nonprofit organization, released a statement acclaiming his appointment July 9. “Judge Kavanaugh has a proven track record in interpreting the U.S. Constitution according to its original meaning and has consistently ruled against regulators whose interpretation of the law exceeds his statutory authority,” wrote Juanita Duggan, Chief Executive Officer and president of the National Federation of Independent Business.
Kavanaugh will cement a “reliable conservative majority” on the Supreme Court, which has already shown signs of ruling in favor of the companies, including a recent ruling in favor of American Express AXP,
said Isaac Boltansky, director of policy research at Compass Point, a research and commerce firm with offices in New York, Boston and DC
Here’s why consumer advocates are challenging Kavanaugh as Trump’s nominee:
PHH Corporation v. Consumer Financial Protection Bureau
Critics fear Kavanaugh could weaken the nation’s most important consumer watchdog. In 2017, a panel of three District of Columbia circuit judges ruled against the structure of the Consumer Financial Protection Bureau, in a case called PHH Corp. vs. Consumer Financial Protection Bureau. Kavanaugh was the lead author of that ruling, which said the CFPB’s current one-manager structure violates the Constitution.
The director could be removed only for specific reasons: Inefficiency, dereliction of duty or “malfeasance” or wrongdoing. In contrast, the president has the power to remove the head of most other agencies at will. Kavanaugh proposed giving that power to the US president, allowing the director of the CFPB to be removed. Consumer advocates feared it would hurt the office, especially since the Trump administration had previously expressed a desire to weaken it.
Why 92% of Americans distrust their own financial institution
Kavanaugh and the CFPB
Kavanaugh spent 12 years on the United States Court of Appeals for the District of Columbia Circuit. In January 2018, the entire DC Circuit Court upheld the rule that the president can only fire the head of the CFPB for these specific causes. This case won’t go to the Supreme Courtaccording to the National Law Review, but there are several other ongoing cases related to the constitutionality of the CFPB that could do so.
“Payday lenders and their allies in Congress have consistently attempted to weaken the authority of the CFPB for baseless and political reasons,” Debbie Goldstein, executive vice president of the Center for Responsible Lending, said in a statement. “Brett Kavanaugh is someone who has made common cause with this effort.”
“Having upheld in the United States Supreme Court a judge who is anti-consumer and believes that the structure of the CFPB is unconstitutional is alarming and should be of concern to consumers across the country,” she added. Members of the Trump administration and other members of the House have also made suggestions, including deleting its public complaints database.
United States against anthem
Kavanaugh has always ruled in favor of business, said Linda Jun, senior policy adviser at Americans for Financial Reform, a nonprofit made up of civil rights and consumer groups that supports a “strong” CFPB. The Supreme Court nominee’s record is “baffling”, she added. She quoted the US antitrust case v. 2017 Anthem in which Kavanaugh sided with Anthem ANTM,
and Cigna CI,
two health insurers who were planning to merge.
The merger would benefit customers who get their insurance from Anthem and Cigna, Kavanaugh argued. But consumer advocates argued this would lead to less competition and ultimately higher costs. Ultimately, the three-judge panel of the United States Court of Appeals for the District of Columbia Circuit did not allow Anthem to acquire Cignafor antitrust reasons.
The two insurers then sued in Delaware state court. Anthem wanted to stop Cigna from terminating its deal – trying to salvage the merger after the court ruling – but a Delaware judge denied that request, saying the chances of saving the merger were slim. Cigna was therefore free to withdraw from the agreement.
Cablevision Systems Corp. against the FCC
In the case of Cablevision Systems Corp. against the Federal Communications Commission in 2010, Kavanaugh sided with Cablevision and said the First Amendment applies to modern communication as it did “to publishers, pamphleteers and newspapers of the founding era”. The FCC wanted to prohibit exclusive contracts between cable operators and their affiliated video programming networks. But Cablevision and other operators did not want the government to interfere in their programming decisions. The court ruled in favor of Cablevision.
United States Telecom Association v FCC
United States Telecom Association versus FCC in 2017 decided whether internet service providers had First Amendment rights, allowing them to choose what content to stream. Kavanaugh dissented, arguing that net neutrality is illegal, in part because Congress has not clearly authorized the FCC to issue it. He also said it violated the First Amendment.
A panel upheld the FCC’s 2015 Open Internet Order, commonly referred to as the “net neutrality” rule. Net neutrality requires Internet service providers to provide their services as public services, offering equal Internet speed and no interference in the content available or not. (The Republican-led FCC voted in December to roll back most Obama-era net neutrality rules.)
Venetian Casino Resort c. National Labor Relations Council
Kavanaugh sided with Venetian in the 2015 case, Venetian Casino Resort c. National Labor Relations Council. Venetian management asked the police to give criminal citations to union protesters who were on station property. the National Labor Relations Council claimed without success the station committed an unfair labor practice by requesting these arrests. (The police attended the demonstration, but did not arrest the protesters.)
President Trump’s administration, meanwhile, views all of Kavanaugh’s decisions as pro-business and positive for employers, workers and consumers. Earlier this week, the White House sent a letter to industry trade groups, asking for support for Kavanaugh. “Judge Kavanaugh is protecting American businesses from illegal job-killing regulations,” the White House said. Kavanaugh is good for business and opposes “over-regulation,” the letter says.
