Judge Kavanaugh Has An Obligation To Correct The Record On His Radical View On Executive Power

September 11, 2018

Senate Judiciary Committee Member Chris Coons (D-DE) released the following statement: “The American people deserve to know if Judge Kavanaugh still holds a broad view of executive power that would allow this President, or any President, to be above the law, including having the ability to fire a Special Counsel investigating him just for doing his job. The Supreme Court must be a constitutional bulwark against abuses of power by anyone, including the President. I’m concerned Judge Kavanaugh won’t provide that critical check.”

JUDGE KAVANAUGH REPEATEDLY AND INCORRECTLY STATED HE “NEVER SAID” THAT HE BELIEVES IN “HAVING ALL THE POWER OF THE EXECUTIVE BRANCH IN THE PRESIDENT’S HANDS”

COONS: Well, and I'll -- I'll tell you again, the reason this has been gravely concerning to me, why I raised in our meeting and sent your letter about it and why I've dedicated so much time to this question is I really don't view the issue in the independent counsel statute in the Morrison v. Olson decision as dealing with some now long past statute and some really sort of obscure and now not particularly relevant issue. I think the reason you reached out and volunteered that you'd love to overturn Morrison v. Olson isn't because Scalia wrote a powerful and moving dissent, it's because of a view of the executive branch having all the power of the executive branch in the president's hands that you've articulated across speeches, interviews, writings, and an opinion. An opinion this year. I think that's really your view of the executive branch.

KAVANAUGH: But I have not said --

COONS: It raises real concerns --

(CROSSTALK)

KAVANAUGH: -- I never said that. I've never said that, number one. So there are two issues here and I want to be very, very clear on them so people understand that, too. [Senate Judiciary Hearing, Transcript via CQ, 9/5/18]

DURBIN: You see, that's why the unitary theory of the executive is so worrisome. What you have said is what I want to hear from a co-equal and very important branch of our government. But what you have said in relation to Morrison suggests the president has the last word.

KAVANAUGH: I have not said that, senator. [Senate Judiciary Hearing, Transcript via CQ, 9/6/18]

Judge Kavanaugh: “Thirdly, if there were some kind of protection for cause protection or some other kind of protection that were different from the old Independent Counsel Statute, I said that I would keep an open mind about that so I have not said anything to rule that out and finally, I've reaffirmed repeatedly, or I've applied repeatedly, the precedent of Humphrey's Executor for traditional independent agencies and have never suggested otherwise.” [Senate Judiciary Hearing, Transcript via CQ, 9/6/18]

COONS: You are clearly a capable and good man and a good neighbor and a good coach and we've heard a lot about that. What I want to hear more about is an honest answer about your view of presidential power.

GRASSLEY: You can answer.

KAVANAUGH: You're talking, if I can answer uninterrupted for...

GRASSLEY: You can answer on the 10 minutes I didn't use.

KAVANAUGH: Respectfully Senator, first of all I appreciate your care and we've know each other since law school; we've been friendly with each other since law school and your devotion to this. Respectfully I believe you're talking about a statute that has not been in place since 1999. Secondly the special counsel system, I've specifically written about multiple times and approved. Thirdly, if there were some kind of protection for cause protection or some other kind of protection that were different from the old Independent Counsel Statute, I said that I would keep an open mind about that so I have not said anything to rule that out and finally, I've reaffirmed repeatedly, or I've applied repeatedly, the precedent of Humphrey's Executor for traditional independent agencies and have never suggested otherwise. I've referred to that as an entrenched precedent. So those are - and I've referred to U.S. v. Nixon as one of the greatest decisions in Supreme Court history. [Senate Judiciary Hearing, Transcript via CQ, 9/6/18]

ACROSS MULTIPLE DECADES, JUDGE KAVANAUGH HAS REPEATEDLY STATED THIS EXACT TROUBLING AND EXPANSIVE VIEW OF EXECUTIVE POWER – INCLUDING AS A FEDERAL JUDGE.

Judge Brett Kavanaugh: “Article II, Section 1, the first fifteen words, ‘The executive Power shall be vested in’ one person—you wonder do they mean that. Yes. You see the debates. There’s discussion of a plural executive. James Wilson, the father of the presidency—one person. One person. They meant one person. That has—we talk about does this have relevance today. Yes. For me, it does at least. When we have cases with agencies that are accountable to the President, yes. I think that’s in tension, as I’ve said, with the one person. But they meant it. It applies still today.” [GW Law School, A Dialogue with Federal Judges on the Role of History in Interpretation, 11/4/11]

Judge Brett Kavanaugh, Dissenting: “Of course, the President executes the laws with the assistance of subordinate executive officers who are appointed by the President, often with the advice and consent of the Senate. To carry out the executive power and be accountable for the exercise of that power, the President must be able to supervise and direct those subordinate officers.” … “The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” [Dissenting Opinion, PHH v. CFPB, Decided 1/31/18]

Judge Brett Kavanaugh, Dissenting: “To supervise and direct executive officers, the President must be able to remove those officers at will. Otherwise, a subordinate could ignore the President’s supervision and direction without fear, and the President could do nothing about it.” [Dissenting Opinion, PHH v. CFPB, Decided 1/31/18]

Brett Kavanaugh:

LACOVARA: Do you accept the proposition that the attorney general, or the independent counsel, is the country’s chief law enforcement officer?

KAVANAUGH: I do not. The president is the chief law enforcement officer. That is one of the bedrock principles that has gotten lost since Nixon. The power of the president in these situations has diminished dramatically. [Wash. Law. 34 (1999), Lawyers' Roundtable: Attorney-Client Privilege; p. 191]

Brett Kavanaugh:

COSSACK: Brett, the independent counsel law is dead and -- but yet we see Janet Reno appoint Senator Danforth to investigate what happened at Waco. It's a different kind of investigation than you worked under. Is it better or worse?

KAVANAUGH: I think it's better because the attorney general and, ultimately, the president have full supervisory control, which is the way the Constitution set up. [CNN Burden of Proof, 9/9/99; p. 169]

Judge Brett Kavanaugh: “Our Constitution makes one person responsible for the entirety of the Executive Branch, or at least for most of the Executive Branch.” [Remarks to Inn of Court, 5/17/10; p. 639-644]

Judge Brett Kavanaugh: “Now why does Congress make those delegations? Sometimes, because they want agencies to take account of unforeseen circumstances. Sometimes, and lots of times, it’s because Congress can’t come to a decision that everyone can agree upon, so they punt. They punt it to the agency in question. Not illegitimate, but that’s just the reality. They can’t reach an agreement and they punt. And that delegation becomes even more problematic, it seems to me, and something we should all think about, a broad delegation to an agency that’s then independent and therefore unaccountable. Not controlled by the president, you don’t vote for them, they’re not elected. And it seems to me that unaccountable government powers, of course antithetical to the rule of law and to liberty, so we should pay attention when we’re thinking about this overall administrative state. I would say we should pay careful attention as a policy matter to the distinction between independent agencies and executive agencies. Relatedly, we often hear with respect to the rule of law, well the president is interfering in agency decision making. The president is politicizing the process, you hear that no matter who is president, not talking about any particular president. And it seems to me politicized is an overused word in Washington and in our political discourse. From the perspective of accountability it should be a good thing that the president is making the decisions. The president is the nationally elected official. The president is accountable to the people. You know who to blame when an agency is making a decision that the president has dictated.” [Federalist Society 2012 Annual Student Symposium, 3/2/12; YOUTUBE]

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