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Kavanaugh and Executive Power - the Good, the Bad, and the Overblown

The debate over Judge Kavanaugh's views on executive power actually encompasses four separate issues. On some of them his views bode well for the future, on others not so much.

Judge Brett Kavanaugh.Judge Brett Kavanaugh.

Much of the debate over Judge Brett Kavanaugh's nomination to the Supreme Court focuses on his view of executive power. But the discussion here actually encompasses four separate issues: the question of when a sitting president can be investigated and tried for possible violations of criminal and civil law, judicial deference to executive branch agencies' interpretations of law, judicial deference on national security issues, and the theory of the "unitary executive." It is important to address each of these issues separately, because Kavanaugh's positions have very different implications for them. In my view, concern on the first issue is overblown, and Kavanaugh is actually likely to help constrain executive overreach on the second. On the other hand, there is good reason to worry about his record on national security and the unitary executive.

I. The Overblown.

Many Democrats fear that Kavanaugh might cast votes in favor of neutering the Mueller investigation of Donald Trump's possible collusion with Russia during the 2016 campaign, and investigations of other types of wrongdoing by Trump and his associates. It is indeed true that in a 2009 Minnesota Law Review article, Kavanaugh argued that Congress should pass a statute shielding the president from investigation and prosecution until after he has left office, because "we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions." But as, Harvard law professor Noah Feldman and Benjamin Wittes of the Brookings Institution explain, liberal fears are likely misplaced. And neither of them, to put it mildly, are fans of Trump. The fact that Kavanaugh argued that a congressional statute would be needed to shield the president from investigation (and possibly even prosecution) suggests that he does not believe that the Constitution forbids such investigations in and of itself. Unless and until Congress enacts the type of statute Kavanaugh advocates (which seems unlikely to happen anytime soon), he would likely vote to allow Mueller to continue his investigation, and the same for other investigations into wrongdoing by Trump.

For what it is worth, I do not agree that the sort of sweeping immunity statute Kavanaugh advocates is a good idea. There is a solid case for postponing investigations into petty illegality by the president. If, for example, evidence indicates that the president smoked a marijuana joint or committed some minor violation of tax law, there may be good reason to avoid burdening him with investigation and prosecution until he leaves office. The situation is very different in cases where he may have committed a serious violation of the law, especially one that undermines constitutional constraints on government power, or threatens national security. I am not convinced that it is safe to rely solely on impeachment as the sole remedy for such wrongdoing, until the president leaves office. But, be that as it may, this is a disagreement about policy, not about the dictates of the Constitution.

Kavanaugh's support for unitary executive theory (discussed more fully below) could potentially lead him to conclude that Mueller's appointment as special counsel is unconstitutional. But, for reasons Wittes explains, that is unlikely, because Mueller's authority is constrained in ways that fit what Kavanaugh himself has advocated in the past. Moreover, as prominent conservative lawyer George Conway (ironically, also known for being the husband of Trump adviser Kellyanne Conway) has explained, the Mueller investigation is constitutional even under a very rigorous application of unitary executive theory, because Mueller is subject to control and removal by his superiors in the Justice Department. The question of the legality of Mueller's investigation may never reach the Supreme Court. But if it does, I think there is little reason to think Kavanaugh would vote to immunize Trump from further investigation.

II. The Good.

On the issue of Chevron deference, Kavanaugh's skepticism of judicial deference to executive agencies' interpretation of law might very well help constrain abuses of executive power. The 1984 Chevron decision states that courts must defer to agency interpretations of federal law in most cases where the law is ambiguous, and the agency's view of its meaning is "reasonable," which in practice is often a very low standard. In a 2016 Harvard Law Review article, Kavanaugh argued that, "[i] many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch" and that it encourages the executive to play fast and loose with the law because its "inherent aggressiveness is amped up significantly" by the expectation of judicial deference. He fears that "executive branch agencies often think they can take a particular action unless it is clearly forbidden." For reasons discussed here (in analyzing Justice Neil Gorsuch's similar views), I largely agree.

Kavanaugh's concerns about Chevron echo those recently expressed by Justice Anthony Kennedy; so his elevation to the Court may not change the balance on this issue much. Chevron deference has also begun to attract skepticism from many judges across the political spectrum. Cutting back on judicial deference to agencies has obvious appeal to conservative and libertarian critics of the administrative state. But it should also appeal to liberals who fear that Republican agency heads are likely to be ideologically biased, and bend the law to their own preferences. See, for example, this praise of Kavanaugh's critique of Chevron by prominent liberal legal scholar Jed Shugerman. Cutting back Chevron could also help strengthen the rule of law in ways that should appeal to people with a wide range of political preferences. As Neil Gorsuch put it in a well-know opinion written when he was a lower court judge, judicial deference to executive agencies allows the latter to "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." Surely there's something wrong with that.

It unlikely that Kavanaugh's confirmation would lead to the complete overruling of Chevron. But it would likely continue - and perhaps accelerate - the trend towards tighter, and less deferential judicial review of agency decisions.

III. The Seriously Problematic.

Kavanaugh's record on judicial deference to the executive on national security issues is far less reassuring. As legal scholar Stephen Vladeck explains in the Washington Post, he has extended broad deference in several cases dealing with the rights of Guantanamo detainees. In that respect, Vladeck emphasizes, he is very different from Justice Kennedy, who was much more willing to enforce legal limits on executive national security policy. Kavanaugh's deferential attitude may also come through in his concurring opinion to the DC Circuit's denial of en banc review of a decision upholding the NSA's collection of a vast amount of "bulk data" from American electronic cell phone records. While some of Kavanaugh's reasoning was based on direct application of Supreme Court precedent, he also emphasized that "[t]he Government's program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States.... In my view, that critical national security need outweighs the impact on privacy occasioned by this program." This argument implies that other national security justifications might well also qualify as "special needs" that justify searches that would otherwise violate the Fourth Amendment.

Wide-ranging judicial deference on national security cases is not justified by the text of the Constitution. Unlike some other constitutions, ours has very little in the way of "emergency powers" provisions that diminish or cancel out constitutional rights in time of war or other national security threats. The major exception is the power to suspend the writ of habeas corpus, which has not been invoked in any of our current conflicts. The standard expertise-based arguments for special judicial deference are seriously flawed, and have led to severe abuses in the past.

The other area where Kavanaugh's views on executive power are potentially troubling is his support of "unitary executive" theory - the idea that the Constitution requires nearly all executive power to be concentrated in the hands of the president. I used to support this view myself. But I now believe I was wrong to do so. Unitary executive theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But, for reasons I summarized here, it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted to the federal government in the original Constitution.

Judge Kavanaugh's views on national security deference and the unitary executive are well within the mainstream of modern legal thought. He is no wild-eyed radical, or partisan apologist for Trump. Most of his controversial opinions on national security issues actually came in cases challenging Obama administration policies.

But the fact that these ideas are mainstream is not as comforting as it may seem. Historically, most of the worst Supreme Court decisions came about precisely because mainstream legal thought went wrong on some important issue - not because the justices who voted for them were fools or extremists. A misguided "mainstream" is far more dangerous than the occasional fluky extremist ruling. When it comes to national security and the unitary executive, Kavanaugh is an especially thoughtful and articulate defender of positions on which mainstream conservative jurisprudence has gone wrong.

The fact that he may be wrong about these two questions doesn't necessarily mean he would be an undesirable Supreme Court justice,overall. Kavanaugh's flaws here should be weighed against his excellent record on many other issues, such as his strong support for freedom of speech. At this point in our history, neither Republicans nor Democrats are likely to give us an ideal Supreme Court justice who gets every important issue right. Very far from it, in fact. We could easily do far worse than Kavanaugh, who is a very solid choice in many ways. Still, Judge Kavanaugh's positions on executive power are an important aspect of his overall record, and they deserve serious scrutiny.

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  • Bob from Ohio||

    "the idea that the Constitution requires nearly all executive power to be concentrated in the hands of the president"

    "The executive Power shall be vested in a President of the United States of America." Article II, first sentence

    "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article I, first sentence

    "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. " Article III, first sentence

    Do you also reject the idea that the Constitution requires nearly all legislative power to be concentrated in the hands of Congress or the idea that the Constitution requires nearly all judicial power to be concentrated in the hands of the Courts? Because the Constitution uses the same language for all three.

  • phattyboombatty||

    Good point, Bob. Just because the federal government has grown much larger and more expansive than the Founders every dreamed possible, doesn't alter the original interpretation of Article II.

  • Scarecrow Repair & Chippering||

    Seems his argument is that the Constitution was bent to allow the War on (Some) Drugs, and since we can't fix that, let's bend it some more to reduce the President's authority.

  • Careless||

    The guy rejects the Preamble. He isn't really pretending to give a shit about the document these days.

  • Brett Bellmore||

    "Unitary executive theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But, for reasons I summarized here, it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted to the federal government in the original Constitution."

    And the problem with this approach is not with the unitary executive, which IS actually directly derived from the Constitution.

    It's with accepting illegitimate expansions of federal power.

    When federal power is expanded beyond constitutional bounds, there isn't ANYBODY in the government who can properly exercise that expanded power, because its exercise is illegitimate regardless of whose hands it ends up in.

    Placing it in democratically unaccountable hands instead of the President's only increases the problem.

  • ||

    Exactly. If you don't accept that the Commerce Clause grants Congress plenary police power in the first place, then it doesn't much matter whether Congress is exercised its authority directly or whether it delegated it to an administrative agency.

  • PubliusVA||

    Exactly. While Prof. Somin is right that "it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands," it should be blindingly obvious that the problem is with the "so much authority" part, not the "one person's hands" part, since the latter is mandated by the plain text of the Constitution and the former is not.

  • CCP||

    Nice piece Ilya. It's refreshing to read something calm in the early hours of a hurricane.

    The national security deference problem has always been maddeningly difficult as it springs from text that is literally unbounded. I suppose at the end of the day the best counterbalance may be a more aggressive exercise of article I powers. At least we that way judges can try to shoehorn problems into a steel seizure construct, such as it is.

    As to the immunity issue, spot on. But I'm not so sure the mueller authority issue is going nowhere or is so clear, and I don't think either Calabresi or Conway has actually grappled with the real appointment clause problem all that well. The next month or so could actually be pretty interesting on that front.

  • GabrielThursday||

    Unitary executive theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But, for reasons I summarized here, it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted to the federal government in the original Constitution.

    No, this is not originalist in any sense. You can't say - the original meaning has been violated in one area (by interpreting the executive's power over-broadly) therefore the original meaning in another area is changed. Put another way, the interpretation of the extent of executive powers has little or no bearing on the original meaning of the structure of the executive. This is inimical to originalism. It is a respectable political argument, but to clothe it in the language of originalism is obfuscatory and misconceived.

  • VinniUSMC||

    There's no reason to assume that Kavanaugh will vote strictly on the pro-govt side of 4th amendment cases from this one opinion. Especially since the relevant quote is merely the middle of a paragraph within the full opinion.

    Given the full breadth of the opinion, there is no logical reason to assume that he wouldn't have voted for en banc had Supreme Court precedence been different.

    The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court's decision in Smith v. Maryland (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.…

    ...the Government's metadata collection program readily qualifies as reasonable under the Supreme Court's case law.… The Government's program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government's program fits comfortably within the Supreme Court precedents applying the special needs doctrine.

    ...To be sure, sincere and passionate concerns have been raised about the Government's program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act

  • PubliusVA||

    The other area where Kavanaugh's views on legislative power are potentially troubling is his support of "bicameral legislature" theory - the idea that the Constitution requires nearly all legislative power to be concentrated in the hands of the two houses of Congress. I used to support this view myself. But I now believe I was wrong to do so. Bicameral legislature theory was sound in a period where the scope of legislative power was confined to its comparatively narrow original bounds. But it is both dangerous and contrary to the original meaning to concentrate so much authority in two houses' hands in an era when the legislature wields vastly greater power than was granted to the federal government in the original Constitution.

  • VinniUSMC||

    Is this a parody?

    Where else would legislative power be?

    This must be a parody.

  • Brett Bellmore||

    It's the same parody as Ilya's statement.

    If the expansion of power wasn't legitimate, the issue of who gets to exercise it is constitutionally moot.

  • KHP54||

    Chevron is an abomination. I see no reason why the concept behind the 'rule of lenity' shouldn't apply just as strongly to the regulatory arena.

  • JHR||

    The Chevron principle, at least as articulated in the case itself, strikes me as obviously correct. Anytime one entity (in this case the legislature) gives instructions to another entity (the executive agency) there is necessarily a delegation of interpretive authority. That's simply a consequence of the imprecision of language.

    There are, however, two real problems. One is that the application of Chevron has become unmoored from the original logic of the case. It's no longer confined to cases of true interstitial ambiguity, where the statute really could be reasonably read in multiple ways, and where it's unlikely that Congress would have given any thought to the issue. The original Chevron case is, I think, and excellent example of that kind of ambiguity. Now, however, courts seem to bend over backward to find ambiguity, and when they do, it becomes a blank check for the agency to do almost anything.

    The other problem is the anemic non-delegation doctrine. If we had a robust non-delegation doctrine, then I suspect few people would be worried about the interpretive delegation that occurs via Chevron. Of course, I'm not very sanguine about any changes in that area, so constraining Chevron is better than nothing.

  • damikesc||

    The Chevron principle, at least as articulated in the case itself, strikes me as obviously correct. Anytime one entity (in this case the legislature) gives instructions to another entity (the executive agency) there is necessarily a delegation of interpretive authority. That's simply a consequence of the imprecision of language.

    Why wouldn't one just invalidate the law ENTIRELY as being too vague. If it requires people not authorized by voters to make decisions, then the law should be tossed as being unconstitutional. Congress wanting to "do something" while leaving the details to unaccountable drones is not how a republic should run.

    ...or, barring that, bring back the spoils system. Make SOMEBODY responsible for these calls because, right now, NOBODY is responsible for asinine regulations.

  • KHP54||

    No way.

    Yes, your take on it is fine *as long as we're talking about stuff only related to the agency's internal operation*. E.g. vague Congressional guidance as to how the EPA is to run its retirement systems should result in Chevron deference.

    But vague Congressional guidance as to how the EPA is supposed to regulate us, the poor deplorable masses? Not just no, but hell no--WE are the ones who should given deference in such cases, not the agency.

  • Rev. Arthur L. Kirkland||

    Judge Kavanaugh seems a standard issue movement conservative, with an extra dose of right-wing street-fighting adorning his Federalist-Heritage-certified resume.

    Not someone with whom a libertarian should pal around, professor. One of these days, you're going to recognize you need a better class of playmate.

  • bernard11||

    The fact that Kavanaugh argued that a congressional statute would be needed to shield the president from investigation (and possibly even prosecution) suggests that he does not believe that the Constitution forbids such investigations in and of itself.

    It is not clear what he believes on this point. Maybe it's worth asking, eve though he will crawfish around and not answer.

    His acceptance speech was not comforting in the regard.

  • MikeStarrWriter||

    What everyone seems to be neglecting is Article 1, Section 2, Clause 6:

    "In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

    If a president is charged with a crime, he or she would have an "Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President..."

  • Brett Bellmore||

    You need to demonstrate your last assertion is actually true, not just assume it. Clinton seemed to continue to discharge the duties of his office after he was discovered to have acted criminally.

    What sort of crime are we talking here? Murder? Double parking? Being President while not a Democrat?

  • Smooth Like a Rhapsody||

    Undoubtedly they will rely on the provisions of 18 USC which prohibit mean tweets as well as certain types of hairstyles.

  • MikeStarrWriter||

    Note that I did not indicate the assertion to be applicable to any specific president. I said "If a president...". In addition, I would guess that "inability to discharge the powers and duties of said office" in the case of criminal prosecution would be either as determined by a president (e.g., Clinton) or by a president being in custody of law enforcement.

  • damikesc||

    It is not clear what he believes on this point. Maybe it's worth asking, eve though he will crawfish around and not answer.

    His opinion isn't vague. If Congress would have to pass a law to protect the President, it clearly indicates that such protections are not there now.

    I love that we NOW demand justices reveal how they'll rule on any case we want. I remember when RBG claimed she didn't know how she'd vote on a lot of cases in her hearings.

  • Lee Moore||

    I believe there was a footnote referred to in an earlier post in which Kavanaugh's doubts about the Constitutional position were aired. So I don't think it's quite clear that he insists that Congressional action is necessary.

    It wouldn't astonish me if someone asked him about it during the hearings.

  • Lee Moore||

    I had missed Prof Somin's earlier piece doing a 180 on the Unitary Executive, and most of the comments here have drawn attention to its gaping flaws, most succinctly Brett :

    "If the expansion of power wasn't legitimate, the issue of who gets to exercise it is constitutionally moot."

    But it did trigger the thought that one thing we're looking for in a SCOTUS Justice is emotional stability. It's no good if you have a tendency to get bees in the bonnet, or have meltdowns or hissy fits, harbor grudges, or lose your sense of proportion. And you need to have the spine to resist the mob's baying and the DC dinner party circuit. You need to be steady.

    But emotional instability is easy to accommodate in a law Professor. You're just a teacher, basically. And you can be really smart and remain really smart even when your personality tends to the unstable side. And you can still be a really good Professor.

    But a Justice ? You need to be reasonably smart. Honest. And emotionally stable. You can afford to trade in a few IQ points for a bit of emotional stability. So Kavanaugh being super smart butters no parsnips for me. I want to know that he's steady. I would still have preferred the US Marine gal.

  • Michael Ejercito||

    So, who else is supposed to have executive power, if not the President?

  • Eddy||

  • HenryC||

    The question is not whether the opinions are good or bad for the country, the question is are they accurate interpretations of the Constitution. We as a people have let the elite, judges and civil service make far to many important decisions on how things should be run rather than forcing the legislature to do its job. For example, unless we change the Constitution, the unitary executive theory is accurate. Not necessarily as good situation, but accurate to a plain reading of the Constitution.

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