Even before the election of Donald Trump, every recent occupant of the Oval Office attempted to expand the already awesome powers of the president. Given this reality and the fact Trump’s 2016 election campaign is under criminal investigation, the most important issue with regard to the potential confirmation of Judge Brett M. Kavanaugh to the Supreme Court may be his views on executive power and accountability. In considering those views, it’s important to examine and question his full record. This would include documents concerning more than 100 signing statements by George W. Bush during Kavanaugh’s time in the administration that are not so innocuous at all—statements asserting that more than 1,000 different statutory provisions Bush signed into law were potentially intrusive on the president’s constitutional authorities.
Because of his previous White House roles, Kavanaugh may well have been involved in crafting, approving, or otherwise handling Bush’s executive orders and signing statements. Every objection raised in the latter documents either implied or claimed outright a constitutional barrier to Congress’ authority to exercise its legislative powers. Records of Kavanaugh’s White House work on such matters could provide revealing—and alarming—evidence of his views of executive power.
During his 2006 confirmation hearings for the U.S. Court of Appeals, much attention was paid to Kavanaugh’s role in handling a signing statement that argued the president might not be bound by laws prohibiting the torture of U.S. detainees. Less notice was taken of the many other signing statements—and at least one executive order—that offered baseless, unprecedented, and sometimes bizarre assertions of presidential power.
Compared to the torture controversy, the public policy contexts in which the George W. Bush administration uttered its other audacious constitutional theories may seem trivial. But the obscurity of some of these episodes only underscores the administration’s apparent purpose in planting the flag for presidential power. Theirs was an effort, at every opportunity, to bolster an executive branch sense of entitlement to resist accountability to the other branches of government.
A half-dozen examples that are merely illustrative, not exhaustive, highlight how far the Bush administration sought to expand presidential power while Kavanaugh was employed at the White House. These are all examples from 2001–2006, the period during which Kavanaugh served first in the White House counsel’s office and then as White House staff secretary:
1. There is no Supreme Court authority to support the proposition that anyone other than a sitting president can assert executive privilege in response to a demand for information. Yet a 2001 Bush executive order would have instituted a startling innovation for former presidents. After leaving office, a former president would have been allowed to empower a private individual to assert executive privilege on his behalf with regard to records of his presidency, even after his death. It is important to know if Kavanaugh ever thought this was constitutionally plausible.
2. It is conventional wisdom that the president’s commander-in-chief power extends to presidential decisions concerning the deployment of military force. Yet a 2002 Bush signing statement claimed that commander in chief power also extended to deciding troop strength in the Defense Department’s Office of Legislative Affairs. We should know if Kavanaugh agreed that Congress burdened the president’s commander in chief powers by limiting the number of Defense Department civilian and military personnel who could be engaged in liaison with the legislative branch.
3. Article II of the Constitution creates a presidential “recommendations power.” That mandates that the president shall recommend for Congress’s consideration “such measures as he shall judge necessary and expedient.” A number of Bush signing statements seemed to suggest that because of that mandate, Congress could not constitutionally demand reports from anyone in the executive branch other than the president himself. For example, a 2002 signing statement raised such a concern regarding a required report to Congress from the Department of Education’s Board of Education Sciences. Did Kavanaugh agree such requirements pose a constitutional problem? No report by the board to Congress would have had to either silence the president or prevent him from expressing disagreement, so it’s difficult to see how this intruded on his authority.
4. In 2003, Congress enacted the “Syria Accountability and Lebanese Sovereignty Restoration Act” in the hope of nudging the government of Syria to stop supporting international terrorism and engaging in the destabilization of Lebanon. It required the president impose a ban on certain weapons exports to Syria, as well as additional economic and diplomatic sanctions, unless Syria cleaned up its act. At the same time, the statute allowed the president to forego those actions if he “determines that it is in the national security interest of the United States to waive such requirements” on the Syrian government. In other words, Congress allowed the president to punish Syria or not, depending on his own best judgment. Yet Bush’s signing statement objected that Congress may not “burden or infringe” the president’s “authority to conduct the Nation’s foreign affairs.” Could Kavanaugh explain how, as a matter of law, Congress “burdens” the president when it requires him either to perform an act or not perform it, at his sole discretion?
5. The Constitution requires the president to “take care that the laws be faithfully executed.” The Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, enacted in 2004, prohibited Department of Defense personnel from interfering with military lawyers who might give independent legal advice to their superiors. A Bush signing statement insisted that this provision raised constitutional concerns and would be implemented only as consistent with “the President’s constitutional authorit[y] to take care that the laws be faithfully executed.” Could Kavanaugh explain how a prohibition on interference with independent legal advice within the military could compromise the president’s ability to take care that the laws be faithfully executed? Wouldn’t the independent legal advice of military lawyers help to safeguard that presidential obligation?
6. Kavanaugh is famously enthusiastic about so-called unitary executive theory. Its adherents interpret the Constitution as giving the president complete control over everything any officer of the executive branch does. In 2004, Congress enacted the Specialty Crops Competitiveness Act of 2004, requiring, among other things, that the secretary of agriculture consider—not “approve,” just “consider”—the recommendations of an advisory committee on specialty crops. The Bush signing statement said that such a requirement implicated multiple constitutional powers of the president, including his “constitutional authority to supervise the unitary executive branch.” Does Judge Kavanaugh sincerely believe that a statute requiring mere “consideration” potentially limits the president’s power to supervise the executive branch? If so, on what legal authority does he rely in reaching his conclusion?
It’s incredibly important to note that the novel legal claims illustrated by these examples were not uttered in the context of any judicial contest. That makes their aggressiveness even starker. We expect lawyers in adversarial proceedings to advance their clients’ interests by articulating positions that might not reflect their personal views. But these episodes are not of that sort. President Bush’s executive order on presidential records was an unprovoked unilateral initiative. His signing statements embodied views expressed gratuitously by a Republican administration, most often antagonistic to legislation enacted by a Republican Congress.
Moreover, the foregoing are just a very few examples from President Bush’s then-unprecedented volume of aggressive claims of presidential authority. In signing statements alone during his first six years in office, President Bush raised nearly 1,400 constitutional objections to roughly 1,000 statutory provisions, more than three times the total of his 42 predecessors combined. After Kavanaugh left his role as staff secretary, the pace of Bush signing statements slacked off. This fact raises the question to what degree Kavanaugh was responsible for urging such aggressive claims of presidential power.
That the Bush administration’s unusual and sweeping views of presidential authority might find eventual support in the opinions of a Supreme Court justice is disturbing. The American public is entitled to know of Judge Kavanaugh’s role in formulating these theories and whether he stands by them. In the Age of Trump, it is truly imperative that the Senate understand a prospective justice’s stance on presidential accountability in a system of checks and balances.
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