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President Donald Trump presents the US Circuit Judge Brett M. Kavanaugh as His Candidate for the United States Supreme Court at an Event in the East Room of the White House July 9 in Washington
Chip Somodevilla / Getty Images [19659005] Does Brett Kavanaugh rely on the previous one? The answer to this question may well determine the future of Roe v. Wade and reproductive rights in this country. Kavanaugh's speeches and judicial opinions suggest that he would not rely on Roe as a precedent, and that he would overthrow it entirely.
More surprising perhaps, he hinted that he would essentially reverse the independence of the Federal Reserve and other vital independent agencies by giving them control to the president. And perhaps most disturbingly, Kavanaugh's respect for Scalia in a critical case involving independent prosecutors – and the judge's ideological claims on this case – raises questions about how he deals with the precedent and about the point of view Office of Special Adviser Robert Mueller. .
It has never been wise to centralize the enormous power of the modern administrative state under one and the same person. We are reminded every day how bad an idea is. And it is remarkable and extreme that Kavanaugh seems to think that it is unconstitutional – at the origin or any theory of constitutional interpretation – to centralize these massive executive powers, with all the risks of personal transactions, cronyism and partisan manipulation.
It is important to appreciate that Judge Kavanaugh has a remarkably robust record on Roe and other major controversies. He's not a stealth candidate. But his candid opinions and speeches have played a role in getting the appointment, so it's also fair to review them. A careful reading of some of his main cases in the field of executive power shows a steady willingness to ignore precedents because he is in favor of an ahistorical and extreme theory of presidential power. In the Supreme Court, this view could threaten the special advisor's office and the independence of federal agencies like the Federal Reserve and the Federal Trade Commission. Independent agencies have been an important feature of the federal government for nearly a century and a half, but Judge Kavanaugh has shown a willingness to get rid of precedents that protect these agencies from presidential interference.
Two key features of these agencies are: 1) they are run by bipartite multi-member commissions and 2) commissioners or officers can not be dismissed at will by the president, but only for good reasons. This structure is crucial to foster expertise and long-term planning, in the absence of party control and presidential interference. Imagine if a president could intervene with the Fed to lower interest rates just in time for a re-election campaign, or put pressure on the Securities and Exchange Commission for it to benefit friends and special interests . Independent agencies are designed to reduce presidential or partisan influence over currencies and banks, Wall Street, trade policy, nuclear safety and workplace safety and products, to name a few vital areas .
Even though Judge Kavanaugh officially states his opposition to major precedents as Roe would he still respect the precedents and put these tendencies aside? Based on a reading of one of his most significant opinions and his answers in a forum of the American Enterprise Institute in 2016, Kavanaugh seems not to be particularly deferential to precedents, even canonical ones. For an ostensible originalist, Kavanaugh's understanding of Anglo-American legal history is also imperfect. It seems to have another blind spot: a preference for centralized executive power and a deference to Scalia's opinions, even if the precedent and history do not support such conclusions.
On Wednesday, this revealing audio exchange from an AEI conference in 2016 with Judge Kavanaugh emerged:
Q: Can you think of a case that deserves to be canceled?
million. Kavanaugh: Yes. (To laugh).
Q: Would you be a volunteer?
Judge Kavanaugh: No. (More laughter, a long pause). In fact, I will say one: Morrison c. Olson . It was actually canceled, but I would put the last nail.
Morrison c. Olson was a 7-1 Supreme Court decision, written by Chief Justice William Rehnquist in 1988, upholding the Independent Advocate's Office as constitutional . In dissent, Judge Antonin Scalia adopted the theory of "the unitary executive", which asserts that the president has full control over the executive power, particularly with regard to the power to dismiss leaders for any reason. Scalia felt that the independent lawyer was unconstitutional because the judges had chosen the officer and that the president did not have the power to dismiss him.
There was a reason why Scalia was all alone in this dissent, however: He was wrong, and his historical assumptions were patently false. Moreover, Morrison was not "effectively overturned" as a judicial issue, even though she has a lot of criticism and even though the Supreme Court has rarely relied on it since 1988 .
Kavanaugh seems to go further and subscribe to a more extreme version of unitary-executive theory, which would end the notion of independence in all government agencies. Trump's defenders used such a theory to argue that Trump could have fired FBI director James Comey for for any reason without it being an obstruction of justice. This release would also allow Trump to remove special advocate Robert Mueller, disregarding regulations protecting the special advocate's office from dismissal by the president or attorney general.
To see how far Kavanaugh could go with his unitary-executive theory, it is important to examine his own decisions. Kavanaugh relies heavily on the solitary dissent of Judge Scalia in Morrison v. Olson in a set of decisions on the Consumer Fraud Protection Bureau between 2016 and 2018. In PHH v. CFPB Kavanaugh ruled (in my opinion, correctly) that the structure of the federal consumer's watchdog violated the Constitution by saying that the director could not be dismissed by the president, even for a good cause. Even though he made the right decision, however, the magnitude of his opinions is troubling. Kavanaugh asks about the very existence of job security protections in independent agencies such as the CFPB.
To reverse this precedent would mean the end of the political independence of the banking, financial, commercial, nuclear security and more.
In ruling against the structure of the CFPB, Kavanaugh cited the only dissidence of Scalia opinion in Morrison v. Olson eight times in the original panel's decision and six times in his dissent in bench . As I have already written, dissent Morrison who claimed that government investigations and prosecutions were a "quintessential" executive function, was absolutely ahistorical. Among other things, he ignored the heavy role played by private prosecutions in Anglo-American criminal law until the end of the 19th century, as well as the role of the inherent powers of contempt of Congress to prosecute non-members . As Asha Rangappa and I have pointed out, Congressional Republicans have recently threatened to use Congressional summons and disregard against the Department of Justice, pointing out that Scalia's view of the theory of the unitary executive in Morrison continues to be false.
The practices of the founding era further undermine Scalia's assumptions. Colonial prosecutors were often appointed by judges – not by officials of the executive – and many early constitutions of states enumerated prosecutors in the judicial sections. Some of these constitutions give legislatures or judges the power to appoint law enforcement officials. The 1776 Virginia Constitution, drafted by James Madison, George Mason, and other founders, delegated to the legislature the power to appoint the Attorney General and gave judges the power to appoint sheriffs, coroners, and constables. The Judicial Act of 1789, meanwhile, gave federal judges the power to remove deputy commissioners. The first Congressional Judiciary Bill would have allowed the Supreme Court to appoint the Attorney General and District Judges to appoint District Attorneys. Congress removed these provisions without explanation, but the project showed that it was not obvious to the founders that the suits had to be an executive function.
The simplified history of Scalia in Morrison was wrong. For Kavanaugh, it should be a problem that someone who claims to be an originalist is based on obviously wrong historical assumptions. Worse, Kavanaugh has added this lie in his footnotes:
Recall, moreover, that the experience of the independent advisor resulted in an almost universal consensus that the experience had been a mistake and that Justice Scalia recognized in 1988 that the independent advisory system was an imprudent and unconstitutional incoherence of historical practice. a serious threat to individual freedom.
Nearly universal consensus ? There is not even an almost universal consensus in the Federalist Society that Scalia was right. It is an exaggeration that suggests Kavanaugh lives in an ideological bubble of highly motivated reasoning. Kavanaugh's desire to exaggerate in the service of the presidential power raises reasonable questions about his views on Mueller's office, even though the Special Advisor's office is more constitutionally defensible than the Office of the Independent Counselor. .
As discussed, Kavanaugh's indications that he would go even further than Scalia's dissent are even more troubling. Criticism, the judge reported that he would overthrow the executor of Humphrey an 83-year-old canonical precedent that is a foundation for the modern administrative state. The reversal of this precedent would mean the end of the political independence of the agencies in the banking, financial, commercial, nuclear security and more.
In Humphrey the court ruled on President Franklin D. Roosevelt's attempts to dismiss the chairman of the Federal Trade Commission, William Humphrey, because the president wanted to change his trade and antitrust policy. But the FTC was conceived as an "independent agency" and, by law, the president could remove an FTC chair solely for "inefficiency, negligence in duty or malfeasance in the office." In other words, Roosevelt could remove Humphrey only for a good cause, not because of policy differences. The Supreme Court ruled that Roosevelt could not remove Humphrey. This decision allowed Congress to protect agency representatives against voluntary withdrawal if these officials had quasi-legislative or quasi-judicial roles, not just executive roles.
Judge Kavanaugh does not like Humphrey it is the least that one can say. In 2011, Kavanaugh wrote an agreement on a D.C. decision regarding a controversy over nuclear waste at Yucca Mountain. For 12 pages, Kavanaugh blasted Humphrey's specifically and independent agencies in general. He wrote that the Humphrey regime was undemocratic:
Because of the executor of Humphrey the president still has no daily control over large swaths of regulatory policy and executive execution . … These and many other independent agencies have enormous authority for policy development and implementation and greatly affect the lives and freedoms of the American people. Yet these independent agencies are democratically irresponsible – neither elected by the people nor supervised in their daily activities by the elected president.
Kavanaugh then questioned the principle that agencies need independence to follow up on "expertise" in an apolitical manner " The former usher of Humphrey as commentators have noted, is one of the most egregious opinions that can be found on the pages of the US Supreme Court reports. "He noted that other cases verifying presidential power decided at the same time" have long since been dismissed as relics of a anti-New Deal supreme court too activist. "Kavanaugh then argued that Humphrey is in tension with the more recent precedent of the Supreme Court.
In the end, Kavanaugh changed his tone at the end of this extended radical critique:
All that said, The executor of Humphrey is an entrenched precedent of the Supreme Court, protected by stare decisis. The point of explaining his story and its ongoing repercussions here is not to suggest that the case should be reversed.
Considering the previous 12-page review, including the quote on "one of the most egregious opinions" on the books, however, one could forgive to infer that Kavanaugh thinks that the Supreme Court should overthrow Humphrey & # 39; s directly. Of course, a circuit judge must back off and recognize stare decisis after such a scorching of a Supreme Court precedent. But justice would be free to take the next big step.
Kavanaugh also returned to his critique of Humphrey in the CFPB case. In a footnote in his 2016 decision and another footnote in his dissenting opinion of 2018, Kavanaugh quoted critics of Humphrey and cast further doubt on the validity of the independent agencies. He even looked into the potential effects of the overthrow of Humphrey's
If Kavanaugh simply offered the plaintiffs a potential route to preserve an unlikely claim with these footnotes, he would have just dropped a single sentence. But instead, Kavanaugh has written a short essay on the plausibility of ending the institution of independent agencies, established for 150 years, and which has long been established.
There is ambiguity in this footnote, but if Kavanaugh is seriously considering abolishing the structure of independent agencies at the time of Trump – as his writings imply – must explain this position and recognize the dramatic consequences. This would be an unpredictable and disruptive change in the executive sector, in the banking, markets, energy and other important areas of regulation. And the effect would suddenly be to give President-President Donald Trump much more power over all these areas of modern life. Imagine if Trump has decided to start firing members of the Federal Reserve Board of Directors or Federal Trade Commissioners, and then install his Loyalists. And if he had fired Mueller? Where would Kavanaugh be?
It is interesting to note that Kavanaugh quoted a particularly colorful passage from the dissent of Scalia Morrison on several occasions during his opinions Morrison . Here is this complete passage:
Frequently, a question of this kind will come before the court dressed, so to speak, with sheep's clothing: the potential of the principle asserted to make a significant change in the balance of power is not immediately obvious, and must be discerned by careful and insightful analysis. But this wolf comes like a wolf.
Kavanaugh does not come as a wolf, but he puts a lot of wolves in his quotes and footnotes. To mix Scalia's classic metaphors, he places the wolves in the mouse holes. All of these quotes force the question: How much would a Kavanaugh judge really adhere to a precedent? When Kavanaugh casually entertains a canonical case of nearly a century with chaotic ramifications, he tells us: "Not much at all. When he gives more weight to Scalia's dissent than the majority Morrison and plays with the idea of tearing Executor Humphrey and 150 years of independent government agencies, we must ask: What does it mean for Roe v. Wade, Mueller, the Fed and other foundations of modern American life?
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