Brett Kavanaugh’s views regarding the scope of executive power will be central to his confirmation as a justice of the Supreme Court. Careful examination of those views cannot proceed without full disclosure of his record.
Parts of his record that have already emerged contain disturbing recorded statements. Kavanaugh opined that U.S. v. Nixon, which upheld the subpoena for the Watergate tapes, may have been decided incorrectly, and he designated Morrison v. Olson, which upheld the constitutionality of the independent counsel law, as a case he would like overturned. Those show-stopping assertions of expansive presidential power emerged before examination of records from his five and one-half years in the George W. Bush White House.
Sadly, Judiciary Chairman Grassley and the Republican leadership are resisting production of the full record. In their eagerness to rush the confirmation process and to avoid further uncomfortable disclosures, they support production of documents only from Kavanaugh’s two years in the White House counsel’s office and not papers from his years as Staff Secretary to Bush.
As confirmed by former Staff Secretaries, that job places the individual at the center of presidential decision making, not only structuring and controlling the flow of information to the president, but also acting as a key advisor. Kavanaugh occupied the position at a tumultuous time in the Bush administration, when it was dealing with such issues as torture, warrantless surveillance, detention at Guantanamo, civil rights enforcement, affirmative action, reproductive health care, and the use of presidential signing statements. Both Kavanaugh and Sen. Grassley have emphasized that Kavanaugh’s experience as Staff Secretary was invaluable preparation for judging.
In particular, Kavanaugh’s role in Bush’s signing statements may reveal much about his view of presidential power. The use of signing statements exploded under Bush. He issued signing statements affecting more legislative provisions than all of his predecessors combined and inspired the American Bar Association to issue a highly critical report in 2006.
Presidential signing statements can be rhetorical fluff celebrating flying the flag or honoring motherhood. But, they can also be used by presidents to instruct agencies how to interpret a statutory requirement, either as a policy preference or so that it will conform to the president’s view of the constitution. Signing statements can also announce the president’s view that a provision is unconstitutional and will not be enforced.
This can be potent stuff. A president’s nullification – without vetoing — legislation takes him to the outer limit of presidential power and, many argue, beyond it. The Constitution charges Congress with responsibility to write the laws and the president with responsibility to take care that the laws are faithfully executed. If the president does not agree with a law, the Constitution authorizes him to veto it. Congress can then decide whether to override the veto by two-thirds majorities or to change the law to gain the president’s signature. The Supreme Court rejected legislation authorizing the president to sign portions of a law and veto other parts. While unusual circumstances may justify a president in nullifying a provision of legislation (e.g., a provision that is almost certain to be or has previously been held unconstitutional by the Supreme Court), a president who uses his power promiscuously to invalidate portions of a law operates in extreme tension with our constitutional structure, greatly enhancing the power of the presidency and weakening the constitutional role of the other branches of government.
Many of Bush’s signing statements relied on formulaic recitations that left lawmakers and the public in the dark about the content of the law. For example, Bush stated repeatedly that he would construe the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive and as commander in chief consistent with the constitutional limitations on the judicial power.”
Many of Bush’s signing statements invoked the power of the unitary executive. The unitary executive theory of presidential power rests on the notion that all of the executive power of the United States resides in the president and disfavors efforts by the other branches to curtail or influence the president’s exercise of that power. The theory holds that the president in his sphere operates beyond the checks and balances of the other branches of government and, therefore, above the rule of law. The theory remains – as it should — a radically conservative minority view.
Brett Kavanaugh was at Bush’s side while Bush asserted his power as unitary executive. We need documents from Kavanaugh’s time as Staff Secretary to understand fully his role in President Bush’s efforts to expand executive authority through signing statements. The Senate needs to explore the extent to which those signing statements represent his views on the ability of the president to operate beyond the checks and balances imposed by Congress and the courts.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.