Kavanaugh and Home Building: What the Record Shows


Supreme Court Building in Washington DCAs legal pundits and news outlets pour over Judge Brett Kavanaugh’s extensive judicial record to learn more about President Trump’s new Supreme Court nominee, members need only turn to the multiple NAHB court cases over which Kavanaugh has presided at the U.S. Court of Appeals for the D.C. Circuit to get a fuller picture.

In his 12 years on the D.C. Circuit, Kavanaugh has been involved in eight cases in which NAHB was a petitioner, appellant or amicus. While not always siding with NAHB’s position, Kavanaugh has consistently viewed agency rulemakings with a healthy dose of skepticism.

For example, NAHB was a petitioner in Coalition for Responsible Regulation et al v. EPA, challenging EPA’s attempt to apply an onerous Clean Air Act permitting program to millions of new sources, including some multifamily buildings.

A three-judge panel at the D.C. Circuit upheld EPA’s regulation, and the full D.C. Circuit did as well – except for Judge Kavanaugh. Ultimately, NAHB and its industry coalition took this case to the Supreme Court, which overturned EPA’s regulation for exceeding its statutory authority, just as Kavanaugh had forecast when he declined to go along with the D.C. Circuit’s full court ruling.

Kavanaugh also carefully examines Congress’ actions to ensure they pass constitutional muster. NAHB participated as an amicus in PHH v. Consumer Financial Protection Bureau, a case in which Kavanaugh held that a provision of the Dodd-Frank Act was unconstitutional because it vested too much power in the sole director of the Consumer Financial Protection Bureau (CFPB).

NAHB’s main concern in this case was the CFPB’s re-interpretation of RESPA provisions that affected the use of marketing services agreements, commonly used by builders, real estate agents, lenders and others in the settlement process.

Kavanaugh held that the CFPB could not change its position on RESPA without going through the rulemaking process and making sure the public had a chance to make comments. While the full D.C. Circuit ultimately overturned Kavanaugh’s constitutional holding, it upheld his RESPA holding, which benefits NAHB members significantly.

Judge Kavanaugh’s record of curbing regulatory overreach, as evidenced by these two cases, is one of the key reasons NAHB supports his nomination to the Supreme Court.

For additional information about NAHB legal affairs action, contact Amy Chai.






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