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

President-elect Donald Trump has vowed to get rid of numerous federal regulations adopted by the Obama Administration. Impossible many say. 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 government were the subject of litigation likely headed to the Supreme Court before Trump was elected:  the Clean Power Plan (CPP) (President Obama’s signature climate change measure), the regulations defining “waters of the United States” (WOTUS) (a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water), and the Fair Labor Standards Act (FLSA) overtime regulations (extending overtime pay to 4 million workers).

Numerous commentators, including myself, have noted the difficulty President 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 which 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.

While we don’t know who President Trump will nominate to fill Justice Scalia’s vacancy all signs point toward President Trump nominating (and the Senate ultimately confirming) a reliable conservative. But this nomination will not change the balance of the Supreme Court before Justice Scalia died as a 5-4 conservative Court with Justice Kennedy in the middle.

So 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 Donald J. Trump:  Justice Kennedy.