July 24, 2018

Congress Should Be Concerned That Brett Kavanaugh Wants to Further Restrict Its Power

Dan Froomkin


*This is part one of a two-part series.

The framers of the Constitution established checks and balances between the branches of government to protect us from tyranny. But after one and a half years of Donald Trump, it is clearer than ever that that those checks and balances have given the president too much power.

There seems to be no way to effectively restrain Trump even when he's acting irrationally, recklessly, cruelly or out of bigotry -- whether he's imprisoning migrant children, banning Muslims from entering the country, unilaterally sending missiles and troops into Syria and Yemen with no apparent strategy, turning regulatory agencies against themselves, using pardons for political purposes, threatening the media, and meeting alone with Vladimir Putin.

And that's what we know about. Trump inherited hugely expanded national-security powers from the past two presidents that allow him to unilaterally and secretly conduct surveillance and order targeted killings abroad.

A Congress with any institutional pride at all would reject out of hand a judicial nominee who would cement a Supreme Court majority intent on giving yet more power to the executive branch, at the expense of the legislative and judicial branches.

But Brett Kavanaugh, who Trump has nominated to replace Justice Anthony Kennedy on the Supreme Court, would do precisely that.

Kavanaugh's views on absolute presidential immunity from civil suits, criminal prosecution and even being interviewed as part of a criminal investigation are well established by now. And of course they are particularly convenient for Trump given the current circumstance.

But that's only one element of a broader argument Kavanaugh has made in more than two decades of speeches and jurisprudence: that the Constitution vests the president with so much power that in some cases he is above the law as written by Congress and interpreted by the courts.

As Norm Eisen and Ryan Goodman recently wrote for Slate, "Judge Kavanaugh helped pioneer a maximalist theory of presidential power associated with the notion of a 'unitary executive.' "

Being a "unitarian" is not exactly the same as being an "originalist" -- although they overlap when it comes to their contempt for the Supreme Court's history of asserting constitutional protection for rights not explicitly identified in a text written by white men 229 years ago and not significantly amended since 1971.

For instance, in a talk he gave in 2017 about the William Rehnquist, Kavanaugh lauded the late chief justice's belief "that fundamental rights must either be enumerated in the Constitution (like free speech) or deeply rooted in history and tradition. Abortion was neither an enumerated right nor deeply rooted in history and tradition."

Kavanaugh, rather, is an originalist with a very expansive reading of Article II. That's the one that vests executive power in the president – or, as unitarians insist, "all" executive power.

Impeach – or get out of the way

In a 1998 law journal article, Kavanaugh sounded quite the fanboy. "The President is not simply another individual. He is unique. He is the embodiment of the federal government and the head of a political party," he wrote.

Kavanaugh argued that only Congress could judge the president, through impeachment, and that the position of independent counsel was constitutional only if the counsel was appointed by the president, and not to investigate the president.

And then, in a recently unearthed 1999 roundtable discussion, Kavanaugh argued that one of the most important Supreme Court decisions limiting executive power was wrongly decided. In 1974, the court ruled 8-0 that then-president Richard Nixon's "executive privilege" did not make him immune to a subpoena from the Watergate special prosecutor. It ordered Nixon to hand over audio tapes of his conversations and calls. He did. And two weeks later, he was waving goodbye in a helicopter.

But Kavanaugh lamented the decision, saying that "maybe Nixon was wrongly decided." His reasoning: "Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently."

Asked during a talk at the American Enterprise Institute in March 2016 if he could think of Supreme Court case "that deserves to be overturned," Kavanaugh responded "yes", without missing a beat. Pressed, he said the case he had in mind was Morrison v. Olson, the 1998 decision that upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. "I would put the final nail in," he said.

He said as much again the next month, in a landmark D.C. Circuit decision about the Consumer Product Safety Commission. In the opinion he authored, Kavanaugh approvingly quoted Justice Antonin Scalia's dissent in Morrison, that "The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom."

Beyond the spectacle of a judge giving a Supreme Court dissent the stare decisis treatment, it's an extraordinary quote. Kavanaugh essentially acknowledged that when it comes to checks and balance, he believes that near-absolute power for the president is essential to liberty. The courts, which have actually occupied that role for decades, should just stay out of the president's way.

By contrast, now-Justice Elena Kagan wrote in a 2001 law review article that "The original meaning of Article II is insufficiently precise and, in this area of staggering change, also insufficiently relevant to support the unitarian position."

And Georgetown University Law Professor Victoria Nourse, writing for the American Constitution Society, noted that "The so-called unitary executive theory set forth in Justice Scalia’s Morrison dissent has already proven dangerous in the war on terror, inviting the President to push his power beyond its limits to embrace torture.

The Consumer Product Safety Commission decision declared it unconstitutional for Congress to establish independent agencies that could be influenced, but not directly controlled, by the president – say, by having a director that he couldn't immediately fire.

That independence, Kavanaugh wrote, poses "a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances."

Executive Power, Separation of Powers and Federalism