July | August 2017







President Trump May Need Justice Kennedy’s Vote to Accomplish Regulatory Agenda

By Lisa Soronen, executive director of the State and Local Legal Center
President Donald J. Trump has vowed to get rid of numerous federal regulations adopted by the Obama administration. Impossible, many say. But, if there is one man who may be able to make this happen, it is Supreme Court Justice Anthony Kennedy.
Three of the most important regulations to state and local governments were the subject of litigation likely headed to the U.S. Supreme Court before Trump was elected: the Clean Power Plan, or CPP, President Barack Obama’s signature climate change measure; the regulations defining “waters of the United States,” or WOTUS, a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water; and the Fair Labor Standards Act, or FLSA, overtime regulations extending overtime pay to 4 million workers.
Numerous commentators have noted the difficulty Trump will have personally undoing any of these regulations. So, despite his hostility towards them—and maybe even because of it—these regulations will probably still end up before the Supreme Court.
It is perhaps unfair to speculate how a Supreme Court justice might look at these regulations, which are all being challenged on different legal grounds, based solely on whether a justice is a conservative or a liberal. Nevertheless, these labels indicate general legal philosophies and leanings.       
Conservative justices—for a variety of reasons that may differ depending on the regulation—might generally be more likely to view these and other regulations with more hostility than liberal justices. A conservative justice is more likely to see any or all of these regulations as an attack on federalism or as an example of federal agency overreach. Regarding the CPP or the WOTUS rule in particular, a conservative justice may see these measures as part of a pro-environment policy agenda rather than as a manifestation of clear law.
We don’t know yet whether Judge Neil Gorsuch, Trump’s nominee for Supreme Court, will be confirmed. All signs point toward him being a reliable conservative, more suspicious of agency deference than Justice Antonin Scalia. In fact, less than six months ago Gorsuch advocated for the end of Chevron deference to agency interpretations of ambiguous statutes, which Scalia defended.
So a Justice Gorsuch will not change the balance of the Supreme Court before Scalia died as a 5-4 conservative court with Justice Anthony Kennedy in the middle.
Unless membership changes again soon on the Supreme Court, the fate of these regulations may lie in the hands of a person as puzzling, powerful and unpredictable as Trump: Justice Kennedy.     
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