Judge Brett Kavanaugh on separation of powers (Part 2)

There has been a lot of commentary about Judge Brett Kavanaugh’s law review articles on the investigation, indictment and prosecution of a president, but I believe you should see selected excerpts from his writings for yourself.

Here is a link to his 2009 Minnesota Law Review article Separation of Powers During the Forty- Fourth Presidency and Beyond Copyright © 2009 by Brett M. Kavanaugh (selected excerpts):

Based on my experience in the White House and the Justice Department, in the independent counsel’s office, in the judicial branch as a law clerk and now a judge, and as a teacher of separation of powers law, I have developed a few specific ideas for alleviating some of the problems we have seen arise over the last sixteen years. I believe these proposals would create a more effective and efficient federal government, consistent with the purposes of our Constitution as outlined in the Preamble. Fully justifying these ideas would require writing a book—and probably more than one. My goal in this forum is far more modest: to identify problems worthy of additional attention, sketch out some possible solutions, and call for further discussion.

I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS

First, my chief takeaway from working in the White House for five-and-a-half years—and particularly from my nearly three years of work as Staff Secretary, when I was fortunate to travel the country and the world with President Bush—is that the job of President is far more difficult than any other civilian position in government. It frankly makes being a member of Congress or the judiciary look rather easy by comparison. The decisions a President must make are hard and often life-or-death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible. There are not eight other colleagues (as there are on the Supreme Court), or ninety-nine other colleagues (as there are in the Senate), or 434 other colleagues (as there are in the House). There is no review panel for presidential decisions and few opportunities for do-overs. The President alone makes the most important decisions. It is true that presidents carve out occasional free time to exercise or read or attend social events. But don’t be fooled. The job and the pressure never stop. We exalt and revere the presidency in this country—yet even so, I think we grossly underestimate how difficult the job is. At the end of the Clinton presidency, John Harris wrote an excellent book about President Clinton entitled The Survivor. I have come to think that the book’s title is an accurate description for all presidents in the modern era.

Having seen first-hand how complex and difficult that job is, I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be “one of us” who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office.

This is not something I necessarily thought in the 1980s or 1990s. Like many Americans at that time, I believed that the President should be required to shoulder the same obligations that we all carry. But in retrospect, that seems a mistake. Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots … And my point here is not to say that the relevant actors—the Supreme Court in Jones, Judge Susan Webber Wright, and Independent Counsel Kenneth Starr—did anything other than their proper duty under the law as it then existed. But the law as it existed was itself the problem, particularly the extent to which it allowed civil suits against presidents to proceed while the President is in office.

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. The result the Supreme Court reached in Clinton v. Jones—that presidents are not constitutionally entitled to deferral of civil suits—may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.

Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

In a Footnote, Kavanaugh reiterates his view that “Even in the absence of congressionally conferred immunity, a serious constitutional question exists regarding whether a President can be criminally indicted and tried while in office.”

Since Congress has never enacted his recommendations above, should this issue come before the Supreme Court, he would have the opportunity to create constitutional law by imposing his view of presidential immunity and that impeachment is the only remedy under the Constitution.

Kavanaugh goes so far as to argue that a president should even be immune from criminal investigations, a truly radical idea in a country founded on the rule of law and the principle that no man is above the law, including the president:

Even the lesser burdens of a criminal investigation— including preparing for questioning by criminal investigators— are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

This naive view ignores the fact that substantial harms to the American public can be inflicted and the undermining of our constitutional form of government and the separation of powers that Kavanaugh professes to believe in can occur, as they are now, out of undue deference to the executive branch. It may simply be too late to unring the bell after the end of a presidential term.

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available … Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions.

When he wrote this article, I doubt that Kavanaugh foresaw the day when an autocratic head of an authoritarian political party in control of all three branches of government and backed by an expansive propaganda media empire would allow him to do as he pleases, taking impeachment and even congressional oversight off the table. Our constitutional checks and balances are failing because of failed politicians who lack fidelity to the Constitution.

II. ENSURE PROMPT SENATE VOTES ON EXECUTIVE AND JUDICIAL NOMINATIONS

Second, to make our government more effective and efficient, the Senate might consider changing the way it approaches presidential nominations to both the executive and judicial branches. The Constitution gives the Senate the power of confirming presidential nominees to both branches. But although the constitutional text does not explicitly distinguish between standards the Senate should use in assessing such appointments, there are compelling reasons—deriving from the structure established by the constitutional text—that the Senate should approach its task differently depending on whether the appointment is to the executive or judicial branch.

Executive branch officials are subordinate to (and generally subject to removal at will by) the President. By contrast, federal judges enjoy life tenure and are independent of the political branches. Therefore, the Senate arguably should be more deferential to the President with regard to executive branch appointees (at least those in traditional executive agencies, as opposed to the so-called independent agencies), and less so with regard to judicial appointees. This observation—coupled with the imperative both to promote government effectiveness by minimizing vacancies and to treat potential appointees fairly and respectfully—prompts some specific thoughts about reforming the confirmation process.

As for judicial appointments, structural considerations favor a more intensive inquiry by the Senate. Article III judges are appointed for life and—unlike executive branch officials— are not subordinate to their appointing presidents. That changes the constitutional dynamic.

The President deserves great deference in the selection of his own subordinates—who, after all, must follow the President’s lead and are accountable to the President who is responsible for their actions. By contrast, the independence and life tenure of federal judges justifies a more searching inquiry by the Senate into their fitness and qualifications for office. Because the stakes in judicial appointments—particularly Supreme Court appointments—are higher than in executive branch appointments, the constitutional text and structure support a more robust role for the Senate in the judicial appointments process.

Kavanaugh serves on the D.C. Court of Appeals with chief judge Merrick Garland. Since he has expounded on the selection process, he should have to answer questions about Senator Mitch McConnell’s unprecedented and unconstitutional judicial blockade of his fellow judge to hold the seat open in the event of a Republican president, i.e., the “McConnell Rule.”

Two aspects of the judicial confirmation fights have been contentious—one substantive, the other procedural. The substantive disputes during judicial confirmations are largely inevitable. But the procedural meltdown is constitutionally inappropriate and should be fixed.

Procedurally, however, the judicial confirmation process for Court of Appeals nominees has broken down. In recent decades, the Senate has increasingly used a multitude of procedural mechanisms to delay action on lower-court judicial nominees—by home-state senators’ blue-slipping nominees, by bottling them up in committee, or by using anonymous “holds.” This has been a bipartisan problem—perpetrated by Republican senators [Mitch McConnell] on some Clinton appointees, and by Democratic senators [Tom Daschle, in retaliation] on some Bush appointees. The result has been judicial vacancies left open for years on end, nominees who put their lives on hold while waiting for Senate action that may never come, and talented lawyers who prefer to remain in other jobs instead of subjecting themselves to the whim of the Senate confirmation process. The judiciary is worse off as a result.

My idea on this issue is simple … The Senate should consider a rule ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the President. Six months is sufficient time for senators to hold hearings, interest groups to register their preferences, and citizens to weigh in on the qualifications of a judicial nominee for lifetime office. At the end of that time, it seems that senators should stand and be counted. If a home-state senator or a group of ideologically-committed senators wishes to block a judicial nomination, they can do so. But they can do so by persuading their colleagues and voting, not through procedural maneuvers. In this way, voters can properly hold their senators accountable, nominees can receive prompt and respectful treatment, and key judicial vacancies can be filled without unnecessary delay.

Thus, according to Kavanaugh, Judge Merrick Garland should have received a vote of the Senate and would be sitting on the U.S. Supreme Court today, rather than Neil Gorsuch. No senator has been held accountable for the unprecedented and unconstitutional judicial blockade of Judge Garland, least of all Sen. Mitch McConnell who has engaged in obstruction of judicial appointments for many years.

Moreover, one can argue that Republicans were actually rewarded for their unconstitutional actions by a small number of voters (less than an 80,000 vote margin in three states) as a result of our undemocratic and antiquated electoral college system, which is a vestige of the slavery provisions in the Constitution that should be repealed in a modern democracy. Interesting that Kavanaugh did not propose this among his reforms. But then again, he had a role in Bush v. Gore and got himself a job in the Bush administration as a result, so it benefitted him personally.

III. STREAMLINE EXECUTIVE BRANCH ORGANIZATION AND ENSURE THAT OFFICIALS IN INDEPENDENT AGENCIES ARE MORE ACCOUNTABLE

Third, Congress and the President should scrutinize the organizational chart of executive branch agencies, with an eye toward serious reform. The disastrous consequences of some of the highest-profile agency failures in recent years—the CIA’s mistaken assessment of Saddam Hussein’s weapons programs in 2002, FEMA’s breakdown during Hurricane Katrina, and the apparent failure of financial regulatory agencies in the run-up to the current economic crisis—only confirm the pressing nature of the problem.

The D.C. Court of Appeals has jurisdiction over regulatory agencies, and Kavanaugh expounds at length on reforming the regulatory state.

IV. RECOGNIZE THAT BOTH THE LEGISLATIVE AND EXECUTIVE BRANCHES HAVE LEGITIMATE AND SOMETIMES OVERLAPPING ROLES IN WAR AND NATIONAL SECURITY

Fourth, in the arena of separation of powers law, one issue looms in significance well above all others: the question of war powers. The most significant issue is whether the President can order U.S. troops to initiate large-scale offensive hostilities in a foreign country without congressional approval.

The Constitution grants Congress the power to declare war. [The last “declared” war was World War II.] The War Powers Resolution requires congressional authorization of a war within sixty days of hostilities, except in cases of self-defense and similar emergencies. Before and after the War Powers Resolution was enacted in the early 1970s, however, most presidents asserted their ability to wage war— at least limited war—without any such congressional approval. On some occasions involving more limited strikes—the invasions of Grenada in 1983 and Panama in 1989; the targeted missile strikes on Iraq, Afghanistan, and Sudan in the 1990s; and the broader air campaign against Kosovo in 1999— modern presidents have conducted offensive military operations without obtaining advance approval from Congress.

With regard to larger conflicts—most notably the Persian Gulf War of 1991, the Afghan War (and broader war against al Qaeda) in 2001, and the Iraq War of 2003—modern presidents have sought advance authorization from Congress before acting. [An Authorization for Use of Military Force (AUMF) rather than a formal declaration of war.]

As the actions of these presidents suggest, it is ordinarily understood that seeking the approval of Congress for large-scale military operations overseas is a wise presidential course. Going to war is the most grave and significant action a nation can take. As a political and policy matter, it makes sense for there to be an inter-branch consensus among our federal elected officials, as there was (at least initially) for both the Afghan and the Iraq wars. Such consensus maximizes public and political support for the war effort while minimizing the risk that war will be undertaken hastily without proper consideration. Even more importantly, inter-branch agreement is favored—and according to some, compelled—by the Constitution itself, in addition to the War Powers Resolution. As even the most energetic defenders of executive prerogatives agree, moreover, Congress has unambiguous power over appropriating money to fund military conflicts, in addition to its other authorities over military matters. No one denies, therefore, that Congress can stop a President from waging war by, at a minimum, refusing to fund the war (although in some cases that may require two-thirds of both Houses to overcome a veto). Given that war powers are thus shared by both the President and Congress—and that unity of national effort is crucial for a war effort to succeed—most presidents and observers have seen it as vastly preferable for the President to obtain congressional approval before initiating large-scale military conflict.

To what extent can the Congress legislate and regulate the President’s activities in the war arena? And to what extent does the President require authorizing legislation to undertake a war-related activity abroad?

As an initial matter, the constitutional text makes clear that the President does not enjoy unilateral authority with respect to all incidents of war.

Justice Jackson’s three-part framework from his concurrence in Youngstown Sheet & Tube Co. v. Sawyer has long been used to assess whether a President’s activities in the national security arena are permissible. Justice Jackson famously separated the exercise of a President’s wartime authorities into three categories. Category One applies when Congress has authorized the President’s actions, and his authority is thus “at its maximum.” Category Two occurs when Congress has neither authorized nor prohibited the President’s actions. Category Three applies when Congress has prohibited the President’s actions, but the President asserts his preclusive and exclusive commander-in-chief authority. Here, Jackson maintains, the President’s power is “at its lowest ebb.”

The scope of what a President can lawfully do in a Category Three situation is uncertain—and highly controversial with Congress and the public. For that reason, it seems preferable for a President to try to ensure where possible that his commander-in-chief activities take place in Category One or Two.

One major issue in recent years, for example, has been whether the broad language of the Authorization for the Use of Military Force, passed in the wake of September 11, overrides more specific earlier-enacted statutes such as the Non-Detention Act, the Uniform Code of Military Justice, and the Foreign Intelligence Surveillance Act. Arguably, the Supreme Court has sent mixed signals on that question, reading the AUMF broadly in Hamdi and then two years later reading it more narrowly in Hamdan.

Without taking sides in the debate over whether the AUMF should have been read broadly or narrowly in connection with its effect on earlier enacted statutes, or whether the critique offered by the Hamdan dissenters is correct, it is enough here to say that courts owe a special duty of consistency and clarity when they decide cases in the war powers arena, including when they interpret landmark statutes such as the AUMF.

In that same vein, courts today should be cautious about finding implied congressional prohibition sufficient to classify a case as a Category Three situation.

It is arguably even less appropriate, moreover, for a court to disallow a President’s traditional wartime activity solely on the basis of congressional silence, rather than a written statute.

When, unlike in Youngstown, it is clear that the President is exercising his traditional commander-in-chief power and directing action to support a war effort, it appears more consistent with modern principles of statutory interpretation and judicial restraint for courts to require express congressional prohibition before classifying the case as a Category Three situation.

In sum, a President must thoroughly understand and appreciate the significance of Youngstown Category Three. And a President should strive to avoid Category Three—for reasons both legal and political.

V. CONSIDER THE POSSIBLE BENEFITS OF A SINGLE, SIX-YEAR PRESIDENTIAL TERM

Fifth, a major source of problems in Washington today is that governance can take a backseat to campaigning. Virtually every elected official complains about the distraction caused by the “permanent campaign.” One of the reasons for this complaint is the frequency with which elections are held. To be sure, there is a balance, because elected officials should be accountable to the people, and elections and campaigns connect officials to the public. But today the near-constant prospect of forthcoming elections often undermines the ability to get things done in Washington.

Donald Trump filed for his reelection campaign on inauguration day (so his campaign committee could continue to raise money) and he has continued his campaign rallies from 2016 into the first two years of his administration replaying his vile “greatest hits” with his MAGA base. The permanent campaign is now a fixture.

There is no chance that a constitutional amendment for a six-year presidential term is ever going to be enacted.

CONCLUSION

The challenges facing the forty-fourth President—like those facing presidents before him—are enormous and daunting. Separation of powers controversies like those that challenged his predecessors will recur. It is a good time to take stock of those lessons, to examine our foundational structures, and to develop creative solutions to address the structural challenges of the future. I hope these ideas help advance that discussion.

As with his previous law review article, Kavanaugh’s recommendations were ignored and were never enacted. As a justice on the Supreme Court, his views cannot be ignored, and he would have the opportunity to impose his views.

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