At Kavanaugh hearings, questions of how much power a president should hold

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’s 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.

Kavanaugh’s 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’s independent counsel investigation of Bill Clinton. Indeed, no high court nominee “has been so completely shaped by the needs and mores of the executive branch” since William Howard Taft, who served a term as president before being nominated to the court, writes Garrett Epps for The Atlantic.

Executive power has been growing for decades, with both Congress and the Supreme Court reluctant to intervene – displayed most recently in the court’s June decision to uphold President Trump’s 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.

“The president has grown more powerful over time because the Supreme Court hasn’t stepped in to constrain it,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles. “But if you have a president who does cross the line and it’s a blatant constitutional line, we want and need a Supreme Court that’s willing to police that president. If we don’t have that, then the whole point of separation of powers has failed.”

If he is confirmed to replace retired Justice Anthony Kennedy – often a swing vote on the high court, whom Kavanaugh clerked for – 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 – along with the behavior of the current executive in particular – that suggest the expanded vision of executive power that Kavanaugh espouses could soon be severely tested.

“More and more authority is delegated to the executive branch [by Congress]. Both parties do it,” said Sen. Ben Sasse (R) of Nebraska on Tuesday. And as political debates have disappeared from Congress, “the Supreme Court has become a substitute political battlefield.”

In his opening remarks Tuesday, Kavanaugh stressed the importance of an independent judiciary. “I’m not a pro-plaintiff or pro-defendant judge… I’m a pro-law judge,” he said, speaking after several hours of statements by senators during a contentious first day of hearings. “As 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.”

A ‘unitary executive’

One aspect of Kavanaugh’s 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.

“That means he’s the main guy, and everyone else works for him and has to be accountable to him,” 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’s 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 in 2015, Justice Elena Kagan said that Justice Scalia’s dissent is “one of the greatest dissents ever written and every year it gets better.” 

Independent counsels and independent agencies, such as the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau (CFPB), were created “to insulate them from the person who was elected,” says Professor Harrison. “So 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.”

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 an opinion for a three-judge panel of the D.C. Circuit, that the CFPB was unconstitutional not only because the agency couldn’t be checked by the president, but because it also only had one head. Unlike agencies like the SEC, there weren’t 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 “have been in jeopardy ever since [Justice Samuel] Alito and Chief Justice [John] Roberts were confirmed. I think they are more so now,” continues Harrison. 

Should presidents be granted immunity?

An issue certain to be raised in this week’s hearings is the rarely trod legal ground of executive immunity.

Sen. Patrick Leahy (D) of Vermont, in his opening statement Tuesday, referenced a law review article 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.

“This with a president who has declared in the last 24 hours that the Department of Justice shouldn’t prosecute Republicans,” added Senator Leahy, referencing Mr. Trump’s tweet 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’s investigation into foreign interference in the 2016 election, including the guilty verdict against Trump’s former campaign manager – who faces another trial this month – and the guilty plea by his personal lawyer last month. “I find it difficult to imagine your views on this subject escaped the attention of President Trump,” Leahy said.

Sen. Jeff Flake (R) of Arizona also read the president's tweet before addressing Kavanaugh.

“That is why a lot of people are concerned about this administration, and why they want to ensure that our institutions hold,” he said. “Many 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.”

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.

“When it comes to when the president can act and what is inside the powers of the president or outside, we just don’t have a lot of settled Supreme Court cases,” 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’t 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 “tensions of the time led to an erroneous decision” in the case. On the other hand, in a 2016 article he described the Nixon decision as one of “the greatest moments in judicial history.”

While the specific question posed in the case may come before the court again – should Trump refuse to comply with a subpoena from Mr. Mueller, for example – 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 – à la Nixon – that would require the justices to break from that traditional deference.

“What makes this particular moment in America different from ones we’ve seen in [the] past, and in the case book, is we’ve never been presented with things involving, potentially, foreign governments involved in domestic politics,” says West-Faulcon.