Now that President Donald Trump has nominated Brett Kavanaugh to the Supreme Court, we in the punditocracy will be poring through the many decisions he has published for portents about how he might act on the nation's highest court.
Here's one tidbit worth savoring from Kavanaugh in 2011:
"Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional."
Kavanaugh is arguing here that the federal courts aren't the only branch of government capable of determining the constitutionality of a statute. That reasoning may surprise anyone with a conventional view of the Constitution's separation of powers, but it's based on Kavanaugh's reading of what the Founders had in mind.
Some critics have leaped upon this passage as a sign that Kavanaugh would be just fine with Trump shutting down all or part of Obamacare because this administration considers key parts to be unconstitutional. Goodbye, protections for Americans with preexisting conditions! And that's just the start _ who knows what other Democratic initiatives might run afoul of this administration's sense of what does and doesn't violate the Constitution?
Before you plunge off the deep end, bear in mind that the quoted passage comes a footnote in a 65-page dissent Kavanaugh wrote as a D.C. Circuit judge. So it's not just dicta, it's dicta in passing. So I wouldn't leap to the conclusion that Kavanaugh is primed to give this flighty president and his wacky general counsel _ a man who helped drive the Federal Election Commission into a ditch with his ridiculously narrow readings of the law _ a pretext to ignore federal laws they don't like.
Yet it does tell us something about Kavanaugh's view of the law: If not a pure originalist, he's at least a sympathizer. That means he's willing to rely on 18th century commentaries to try to divine meanings in the Constitution that may not be apparent from the black-letter law.
In the footnote, Kavanaugh cited a concurring opinion by Justice Antonin Scalia in 1991 that explored at length the president's appointment powers, along with the Founders' efforts to protect those powers from usurpation or encroachment by Congress. Here's the relevant passage from Scalia:
"Thus, it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, � 7, or even to disregard them when they are unconstitutional."
For support, Scalia cited a 1989 law review article by a federal appeals judge, Frank H. Easterbrook, on the president's power to review laws. Easterbrook argued that presidents are just as empowered as the courts are to make judgments about whether a law was constitutionally valid. But he also wrote the president's power to review a law "is neither a power to nullify nor a power to disregard judgments" made by the courts about the Constitution. The president has duty to obey court orders, but not to accept a court's judgment that a statute was constitutional.
Easterbrook relied on the writings of several of this country's founders, including James Madison and James Wilson. For his part, Kavanaugh cited some much more recent thinking _ to wit, Supreme Court rulings from 1990, 2000 and 2008 _ in arguing that a president's power to review laws had a crucial limit.
"This power does not work in reverse, either for the President or Congress," Kavanaugh wrote. "In other words, the President may not enforce a statute against a private individual when the statute is deemed unconstitutional by the courts. Nor may Congress pass a statute and have it enforced against private individuals simply because Congress disagrees with the Supreme Court. In those situations, the Judiciary has the final word on the meaning of the Constitution."
Spoken like a member of the judicial branch.
