JUDGE BRETT KAVANAUGH’S DECISIONS IN CASES WITH LEADING BUSINESS ASSOCIATION INVOLVEMENT
Over the last several decades, Big Business associations, led by the U.S. Chamber of Commerce, have become far more active in federal litigation. Agency regulators now anticipate a lawsuit from a trade association when they issue major regulations. And trade associations led by the Chamber regularly file amicus briefs. Those briefs make legal arguments; they also serve to signal to judges what the Chamber and other trade associations believe to be important.
For this report, we identified cases that came before Judge Kavanaugh and in which the Chamber of Commerce, National Association of Manufacturers (NAM), or the American Petroleum Institute (API) participated as a party or amicus curiae.
To compile the list of relevant cases, we did Westlaw and Bloomberg searches for D.C. Circuit decisions where Judge Kavanaugh sat on the panel or that were heard en banc, and that included “Chamber of Commerce” or “National Association of Manufacturers” or “American Petroleum Institute.” We assessed whether Judge Kavanaugh sided for or against the business group.
Our findings: In 25 of the 33 cases (76%) we found that were relevant to this inquiry, Judge Kavanaugh sided with the position advanced by the U.S. Chamber of Commerce, National Association of Manufacturers or American Petroleum Institute. In 8 cases (24%), he ruled against the position of the business group.
Sided With Business Group
|Case Name||Citation||Business Group|
|FTC v. Boehringer Ingelheim Pharmaceuticals, Inc.||892 F.3d 1264 (D.C. Cir. 2018)||Chamber as Amicus for Appellee|
|American Petroleum Institute v. EPA||883 F.3d 918 (D.C. Cir. 2018)||API as Appellant|
|Loan Syndications and Trading Association v. SEC||882 F.3d 220 (D.C. Cir. 2018)||Chamber as Amicus for Appellant|
|PHH Corporation v. CFPB||881 F.3d 75 (D.C. Cir. 2018)||Chamber as Amicus for Petitioner|
|National Labor Relations Board v. CNN America, Inc.||865 F.3d 740 (D.C. Cir. 2017)||Chamber as Amicus for Appellee; NAM as Amicus for Petitioner|
|Americans for Clean Energy v. EPA||864 F.3d 691 (D.C. Cir. 2017)||API as Intervenor Respondent|
|American Petroleum Institute v. EPA||862 F.3d 50 (D.C. Cir. 2017)||API and NAM as Appellants|
|FedEx Home Delivery, an operating division of FedEx Ground Package System, Inc. v. National Labor Relations Board||849 F.3d 1123 (D.C. Cir. 2017)||Chamber and NAM Amicus for Appellant|
|PHH Corporation v. CFPB||839 F.3d 1 (D.C. Cir. 2017)||Chamber as Amicus for Petitioner|
|EarthReports, Inc. v. FERC||828 F.3d 949 (D.C. Cir. 2016)||API as Respondent-Intervenor|
|District of Columbia v. Department of Labor||819 F.3d 444 (D.C. Cir. 2016)||NAM as Amicus for Appellee|
|Defenders of Wildlife and Center for Biological Diversity v. Jewell||815 F.3d 1 (D.C. Cir. 2016)||API as Intervenor Appellee|
|U.S. ex rel. Purcell v. MWI Corp.||807 F.3d 281 (D.C. Cir. 2015)||NAM as Amicus in support of reversal|
|Energy Future Coalition v. EPA||793 F.3d 141 (D.C. Cir. 2015)||API as Intervenor for Respondent|
|In re Kellogg Brown & Root, Inc.||756 F.3d 754 (D.C. Cir. 2014)||Chamber as Amicus for Petitioner; NAM as Amicus for Petitioner|
|Center for Biological Diversity v. EPA||749 F.3d 1079 (D.C. Cir. 2014)||API as Intervenor Appellees|
|White Stallion Energy Center, LLC v. EPA||748 F.3d 1222 (D.C. Cir. 2014)||Chamber as Amicus for Petitioner|
|Texas v. EPA||726 F.3d 180 (D.C. Cir. 2013)||NAM and API as Amicus for Petitioner|
|American Petroleum Institute v. EPA||706 F.3d 474 (D.C. Cir. 2013)||API as Petitioner|
|Grocery Manufacturers Association v. EPA||704 F.3d 1005 (D.C. Cir. 2013)||API as Petitioner|
|National Association of Manufacturers v. NLRB||2012 WL 1521549 (D.C. Cir. 2012)||NAM as Appellant|
|Coalition for Responsible Regulation v. EPA||2012 WL 6621785 (D.C. Cir. 2012)||Chamber, NAM, and API as Intervenors for Petitioner|
|Doe v. Exxon Mobil Corp.||654 F.3d 11 (D.C. Cir. 2011)||Chamber and NAM as Amicus for Appellees|
|Pharmaceutical Care Management Association v. District of Columbia||613 F.3d 179 (D.C. Cir. 2010)||Chamber as Amicus for Appellee|
|Sierra Club v. EPA||536 F.3d 673 (D.C. Cir. 2008)||API as Intervenor Appellee|
Sided Against Business Group
|Case Name||Citation||Business Group|
|Murray Energy Corp. v. EPA||788 F.3d 330 (D.C. Cir. 2015)||Chamber and NAM as Amicus for Petitioners|
|American Meat Institute v. Department of Agriculture||760 F.3d 18 (D.C. Cir. 2014)||NAM and Chamber as Amicus in support of Appellants|
|National Mining Association v. McCarthy||758 F.3d 243 (D.C. Cir. 2014)||Chamber, API, and NAM as Amicus for Appellees|
|National Association of Manufacturers v. EPA||750 F.3d 921 (D.C. Cir. 2014)||NAM as Appellant|
|Delta Air Lines, Inc. v. Export-Import Bank of the U.S.||718 F.3d 974 (D.C. Cir. 2013)||NAM as Amicus for Appellee|
|Mingo Logan Coal Co. v. EPA||714 F.3d 608 (D.C. Cir. 2013)||Chamber as Amicus for Appellee|
|New York-New York, LLC v. NLRB||676 F.3d 193 (D.C. Cir. 2012)||Chamber as Amicus for Petitioner|
|Nat’l Association of Home Builders v. OSHA||602 F.3d 464 (D.C. Cir. 2010)||Chamber and NAM as Petitioners|
 Cases from our searches not included in this tally were primarily cases in which the groups appeared in the court’s opinion in a case citation. In addition, in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), the Chamber appeared as amicus in support of neither party arguing that if the Affordable Care Act’s individual mandate was unlawful, then the court should strike down the entire Act because the mandate was not severable. The court held that the individual mandate was within Congress’s power. Judge Kavanaugh dissented on jurisdictional grounds, arguing that the Anti-Injunction Act barred the suit, and did not weigh in on the merits.
 In this case, Judge Kavanaugh agreed with two of the three arguments advanced by API.