Brett Kavanaugh on Jobs

Congress decides worker safety issues, not regulatory agency

In the SeaWorld case, decided in 2014 by the US Court of Appeals, Kavanaugh set up the issue as a question of "Who decides?": "When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves." he wrote in a dissenting opinion. "And most importantly for this case, who decides that the risk to participants is too high?"

His answer was not federal regulators. He argued that the Labor Department acted arbitrarily when it penalized SeaWorld for failing to keep a trainer from "recognized hazards" under federal job-safety law, when the work was inherently risky.