At Kavanaugh hearings, questions of how much power a president should hold
| Washington
In a life spent circling Capitol Hill, Judge Brett Kavanaugh has made a rare foray to the very top.
Born and raised in the D.C. area, Judge Kavanaugh鈥檚 legal career has unfolded at the highest levels of the judicial and executive branches, from the chambers of the United States Supreme Court to the halls of the White House. Those experiences have informed much of his thinking in his 12 years on the US Court of Appeals for the D.C. Circuit, he has said. Critics, legal scholars, and Democratic senators agree, saying those experiences have cultivated an unusually strong view of executive power.
Now a nominee to the high court himself, and facing questions this week from the Senate Judiciary Committee, those views on presidential power will be closely scrutinized.
Why We Wrote This
The question of how much power a president should have has roiled American politics in recent years. The nominee for the Supreme Court comes to the issue from a unique vantage point.
Kavanaugh鈥檚 experience in the executive branch almost equals his time in the judiciary, including positions in the administrations of George H.W. Bush and George W. Bush, as well as part of Kenneth Starr鈥檚 independent counsel investigation of Bill Clinton. Indeed, no high court nominee 鈥渉as been so completely shaped by the needs and mores of the executive branch鈥� since William Howard Taft, who served a term as president before being nominated to the court, writes Garrett Epps .
Executive power has been growing for decades, with both Congress and the Supreme Court reluctant to intervene 鈥� displayed most recently in the court鈥檚 June decision to uphold President Trump鈥檚 travel ban. In his opinions, scholarly writings, and public comments, Kavanaugh has evinced both consistent support for the courts not interfering with the executive and an expansive view of executive powers.
鈥淭he president has grown more powerful over time because the Supreme Court hasn鈥檛 stepped in to constrain it,鈥� says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles. 鈥淏ut if you have a president who does cross the line and it鈥檚 a blatant constitutional line, we want and need a Supreme Court that鈥檚 willing to police that president. If we don鈥檛 have that, then the whole point of separation of powers has failed.鈥�
If he is confirmed to replace retired Justice Anthony Kennedy 鈥� often a swing vote on the high court, whom Kavanaugh clerked for 鈥� experts say he would likely represent a reliable fifth vote in favor of broad interpretations of executive power. Senators from both parties said Tuesday that they intend to question Kavanaugh on these issues. But they also pointed to broader trends in executive power 鈥� along with the behavior of the current executive in particular 鈥� that suggest the expanded vision of executive power that Kavanaugh espouses could soon be severely tested.
鈥淢ore and more authority is delegated to the executive branch [by Congress]. Both parties do it,鈥� said Sen. Ben Sasse (R) of Nebraska on Tuesday. And as political debates have disappeared from Congress, 鈥渢he Supreme Court has become a substitute political battlefield.鈥�
In his opening remarks Tuesday, Kavanaugh stressed the importance of an independent judiciary. 鈥淚鈥檓 not a pro-plaintiff or pro-defendant judge鈥� I鈥檓 a pro-law judge,鈥� he said, speaking after several hours of statements by senators during a contentious first day of hearings. 鈥淎s Justice Kennedy showed us, a judge must be independent, not swayed by public pressure. Our independent judiciary is the crown jewel of our constitutional republic. In our independent judiciary the Supreme Court is the last line of defense for the separation of powers and the rights and liberties guaranteed by the Constitution. The Supreme Court must never be viewed as a partisan institution.鈥�
A 鈥榰nitary executive鈥�
One aspect of Kavanaugh鈥檚 views of executive power that has become increasingly accepted is the unitary executive theory, which holds that any agency within the executive branch should be under the direct control of the president.
The theory can be interpreted in several ways, but at its core it rests on the notion that because Article II of the Constitution vests executive power solely with the president, the president should have hiring and firing power over every agency within the branch.
鈥淭hat means he鈥檚 the main guy, and everyone else works for him and has to be accountable to him,鈥� says John Harrison, a professor at the University of Virginia School of Law.
This was an unpopular theory a few decades ago, exemplified by the Supreme Court鈥檚 ruling in Morrison v. Olson that the Independent Counsel Statute was constitutional. Justice Antonin Scalia was the lone dissenter in the 1988 case. Since then, both Congress and the high court have warmed to his argument. Congress allowed that statute to expire a decade later, and at an event at Stanford University , Justice Elena Kagan said that Justice Scalia鈥檚 dissent is 鈥渙ne of the greatest dissents ever written and every year it gets better.鈥澛�
Independent counsels and independent agencies,聽such as the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau (CFPB), were created 鈥渢o insulate them from the person who was elected,鈥� says Professor Harrison. 鈥淪o the normative argument in favor of a unitary executive against independent agencies is that it enables the one person who was elected nationwide to make policy.鈥�
If Kavanaugh is confirmed, there would likely be a majority of justices supporting the unitary executive theory, experts say. In practical terms that could spell trouble for independent agencies within the executive. Kavanaugh wrote, in for a three-judge panel of the D.C. Circuit, that the CFPB was unconstitutional not only because the agency couldn鈥檛 be checked by the president, but because it also only had one head. Unlike agencies like the SEC, there weren鈥檛 multiple heads who can check each other.
The Supreme Court has moved back and forth on the issue, Harrison adds, favoring a unitary executive in the 1920s before siding more in favor of independent agencies. In the past 15 years, the court has leaned back the other way.
Independent agencies 鈥渉ave been in jeopardy ever since [Justice Samuel] Alito and Chief Justice [John] Roberts were confirmed. I think they are more so now,鈥� continues Harrison.聽
Should presidents be granted immunity?
An issue certain to be raised in this week鈥檚 hearings is the rarely trod legal ground of executive immunity.
Sen. Patrick Leahy (D) of Vermont,聽in his opening statement Tuesday, referenced a 聽Kavanaugh wrote in 2009, in which, citing his first-hand exposure to the daily stresses and pressures of the presidency, he voiced support for Congress passing a law that would make a president immune to criminal or civil investigation while in office.
鈥淭his with a president who has declared in the last 24 hours that the Department of Justice shouldn鈥檛 prosecute Republicans,鈥� added Senator Leahy, referencing Mr. Trump鈥檚 聽criticizing the Justice Department for prosecuting two GOP congressmen months before mid-term elections.
He then referenced growing legal issues around special counsel Robert Mueller鈥檚 investigation into foreign interference in the 2016 election, including the guilty verdict against Trump鈥檚 former campaign manager 鈥� who faces another trial this month 鈥� and the guilty plea by his personal lawyer last month. 鈥淚 find it difficult to imagine your views on this subject escaped the attention of President Trump,鈥� Leahy said.
Sen. Jeff Flake (R) of Arizona also聽read the president's tweet before addressing Kavanaugh.
鈥淭hat is why a lot of people are concerned about this administration, and why they want to ensure that our institutions hold,鈥澛爃e said. 鈥淢any of the questions you will get on the other side of the aisle, and from me, is how you view that relationship, how you view where Article I powers end and where Article II powers begin.鈥�
It has been so rare for the Supreme Court to address the issue of executive immunity that scholars say it is difficult to predict how Kavanaugh, or the rest of the court, may respond to questions related to the Mueller investigation and whether Trump should be immune from complying with it.
鈥淲hen it comes to when the president can act and what is inside the powers of the president or outside, we just don鈥檛 have a lot of settled Supreme Court cases,鈥� says Professor West-Faulcon. This is in large part because the court has often avoided hearing such cases, saying instead that they are issues internal to the executive branch that shouldn鈥檛 be reviewed by the judiciary.
One of those few cases is US v. Nixon, the landmark 1974 case in which the court ruled unanimously to require President Richard Nixon to turn over subpoenaed Watergate tapes. He resigned later that summer rather than face impeachment proceedings. A transcript of a 1999 roundtable discussion showed Kavanaugh questioning whether the 鈥渢ensions of the time led to an erroneous decision鈥� in the case. On the other hand, in a he described the Nixon decision as one of 鈥渢he greatest moments in judicial history.鈥�
While the specific question posed in the case may come before the court again 鈥� should Trump refuse to comply with a subpoena from Mr. Mueller, for example 鈥� scholars say there is good reason the court should be wary of exercising that kind of intervention.
For one, the court has no power to compel the president to comply with its ruling. It would need the support of Congress, the public, or both, to back its ruling, as was the case with Mr. Nixon. And in many cases, the justices likely also believe Congress and voters are better checks on expanding presidential power than the judiciary.
What some are concerned about, however, is that America may now be nearing another moment 鈥� 脿 la Nixon 鈥� that would require the justices to break from that traditional deference.
鈥淲hat makes this particular moment in America different from ones we鈥檝e seen in [the] past, and in the case book, is we鈥檝e never been presented with things involving, potentially, foreign governments involved in domestic politics,鈥� says West-Faulcon.聽
