Senators considering President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court will undoubtedly be giving a close read to a law-review article the judge published in 2009, entitled “Separation of Powers During the Forty-Fourth Presidency and Beyond.” The article has already engendered substantial debate over whether it suggests that a Justice Kavanaugh would conclude that Trump is immune from criminal investigation or prosecution while in office. I will examine that question below, but the article also discusses several other separation of powers issues worth noting, many of which may shed some light on how Kavanaugh might address a number of issues that regularly arise in the Supreme Court.

Introduction

It’s important at the outset to describe what the article is, and is not, about. For the most part, the article presents a series of policy – not legal – arguments and recommendations for improving the functioning of the federal government (particularly the executive branch) in light of Kavanaugh’s extended experience in a number of different executive branch positions, including in the White House. Any predictions about how Kavanaugh would rule on similar questions as a matter of constitutional law are necessarily based on inferences. While some cynics may disagree, I think it is a serious mistake to simply assume that any judge’s policy recommendations will automatically be converted into constitutional holdings if he or she is elevated to the Supreme Court. At the same time, for those trying to gauge what kind of justice Brett Kavanaugh would be, ignoring the recommendations in the article, and the reasoning behind them, would be a mistake, too.

With that in mind, the basic project of the article is to set out five basic sets of recommendations for improving how the government functions. Below, I’ll describe the ones that seem most relevant to the Supreme Court nomination and offer some observations about what the recommendations might augur for Kavanaugh’s tenure on the Supreme Court, should he be confirmed.

Temporary deferral of civil suits and criminal prosecutions and investigations

The first recommendation is the one getting the most attention, and for good reason. Kavanaugh begins by recommending that while the president is in office, he should not be subject to civil lawsuits or to criminal investigation or prosecution. He explains that based on his first-hand experience in the White House, he has come to believe that “the job of the President is far more difficult than any other civil position in government.” And, he says, “I believe that it is vital that the President be able to focus on his never-ending tasks with as few distractions as possible.” Having to respond to civil litigation, discovery requests, deposition demands, questioning by prosecutors or even sitting through a trial, Kavanaugh believes, imposes an intolerable diversion of attention and energy on any sitting president.

Kavanaugh acknowledges the irony in his saying that – after all, he began his career working for Independent Counsel Kenneth Starr, helping to impose those exact burdens on President Bill Clinton. But “in retrospect,” he writes, “that seems a mistake.” Looking back to those times, he says, “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.”

To be clear, Kavanaugh is not recommending that the president be completely immune from civil or criminal liability, only that the litigation be deferred until the president leaves office. If justice cannot be delayed that long, he writes, it should be up to Congress to step in and exercise its power of impeachment.

This recommendation has led some, including Caroline Fredrickson and Norman L. Eisen in the New York Times and John Nichols at The Nation, and Democrats in Congress, to conclude that Kavanaugh is in the bag for putting the kibosh on Special Counsel Robert Mueller’s investigation of Trump. Others, including Benjamin Wittes at Lawfare and Noah Feldman at Bloomberg, have argued that the article, in fact, shows that Kavanaugh would take the opposite position. I think the truth is somewhere in between.

As I mentioned earlier, it is simply wrong to treat the article as setting out Kavanaugh’s views on the constitutional limitations on investigations and prosecutions of sitting presidents. The recommendations are expressly directed at Congress. After laying out the case for the limitations, Kavanaugh says that with “that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents … be deferred while the President is in office.” And “Congress should consider doing the same, moreover, with respect to criminal investigations and prosecution of the President.”

Some read these statements as implicitly acknowledging that a statutory fix is necessary because the Constitution itself does not impose the recommended limitations. Moreover, the article acknowledges that in Clinton v. Jones, the Supreme Court held that nothing in the Constitution imposes such blanket temporary immunity from civil suit. “The result the Supreme Court reached in Clinton v. Jones,” he writes, “may well have been entirely correct: that is beyond the scope of this inquiry.”

That statement, however, reads to me as a hedge. That the court “may well” have been correct suggests that the court may also have made a mistake. And going out of the way to say that the constitutional question is beyond the scope of the article suggests to me that Kavanaugh was being careful not to take a position on the constitutional question one way or the other.

And while we shouldn’t infer that just because Kavanaugh thinks Jones implements a bad policy means he would overrule the decision, he does not simply say that Jones is bad policy. In defending reliance on the impeachment process to police “bad-behaving or law breaking President[s],” Kavanaugh asserts that “[n]o single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.” That is the beginning of a structural constitutional argument, not just a legislative recommendation.

The fact that he suggests legislation also does not preclude him from believing that the Constitution independently protects sitting presidents. It could just as easily reflect his recognition that his constitutional view is inconsistent with current Supreme Court precedent and may not be shared by a majority of the current court.

In the end, this is all speculation. But I don’t think it is unreasonable to say that someone who has written such an article is more likely to find investigation and prosecution of a sitting president constitutionally problematic than someone who is less obviously disturbed by the prospect and less suspicious that it conflicts with our constitutional structure. And, as discussed below, we have seen other recommendations in this article translated into constitutional commands during Kavanaugh’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit.

Beyond its implications for the Mueller investigation, this discussion suggests that a Justice Kavanaugh would be sympathetic to other doctrines that tend to limit suits against sitting government officials in order to shield them from the distraction of litigation, so they can focus on their official duties. That is the function of doctrines like sovereign, absolute and qualified immunity; executive privilege; the act of state doctrine; and others. These doctrines are favored by conservatives generally, so I’m not going out on much of a limb to suggest that the article is consistent with Kavanaugh taking a traditionally conservative approach in this area (although, as others have noted, it would be a mistake to assume he would always vote in favor of the government defendant).

UPDATE: While the focus of this post has been on Judge Kavanaugh’s Minnesota law review article, it’s worth pointing out that in a piece of video posted on Politico, Kavanaugh raised his hand at a 1998 Georgetown Law Journal conference when panelists were asked to indicate if they believed “as a matter of law that a sitting president cannot be indicted during the term of office.”  The context of Kavanaugh’s prior remarks, which prompted the vote, strongly indicates that he understood the reference to “as a matter of law” to be referring to “as a matter of constitutional law.”

Limiting the administrative state, particularly independent agencies

Another set of recommendations is premised on a concern that the modern administrative state is too big, too inefficient and often, as a result, ineffective. Kavanaugh describes the “extraordinary duplication, overlap, and confusion among the missions of different agencies.” And he expresses grave concern about “the questionable effectiveness and accountability of some of the numerous independent regulatory agencies,” referring to agencies (like the Federal Elections Commission, the Federal Communications Commission and the Securities and Exchange Commission) run by individuals appointed by the president but only removable “for cause.” His recommendations: Streamline the bureaucracy to avoid duplication of missions and limit the number of independent agencies.

Again, these recommendations are cast largely as policy advice to Congress. But as with his position on presidential investigations, parts of his explanation suggest that when pressed, he might well find constitutional reasons to reach the same result with respect to independent agencies. Kavanaugh acknowledges that “[i]ndependent agencies are constitutional under Humphrey’s Executor v. the United States” before adding that “what is constitutional is not always wise.” His footnote providing a citation to the case is perhaps a little telling: In a parenthetical, he describes the court as “characterizing the Federal Trade Commission as a valid ‘administrative body,’” not as holding that independent commissions are constitutional. That in itself might not provide much insight into his willingness to reconsider Humphrey’s Executor, but his description of why independent agencies are bad policy has the ring of a constitutional argument. He says that their independence “has clear costs in terms of democratic accountability.” And they are “in considerable tension with our nation’s longstanding belief in accountability and the Framers’ understanding that one person would be responsible for the executive power.” To any good originalist, saying that a practice departs from the Framers’ understanding of how the government would be structured is pretty much tantamount to saying it is unconstitutional.

I’ll admit, I write all this knowing that in a subsequent decision (which will be discussed in another post), Kavanaugh went pretty far down the road to arguing that independent agencies are, in fact, unconstitutional, in the course of holding that the unusual structure of one (the Consumer Finance Protection Board) violated separation of powers. But given the reasons he gives for his policy recommendations in this article, that is not terribly surprising.

It’s worth noting that Kavanaugh’s position has some nuances. For example, he distinguishes between independent agencies exercising policymaking authority (for instance, by issuing regulations) and conducting adjudications (where independence may be more justifiable). And he holds out that “in some situations it may be worthwhile to insulate particular agencies from direct presidential oversight or control—the Federal Reserve Board may be one example, due to its power to directly affect the short-term functioning of the U.S. economy by setting interest rates and adjusting the money supply.”

But in general, he’s not a fan of either independent agencies or what he perceives as the sprawling administrative state. He may be open to simply overruling Humphrey’s Executor. He may be eager to at least expand the president’s authority to fire independent agency heads “for cause” – he notes, for example, that the “Supreme Court has made fairly clear (albeit not crystal clear) that the for-cause standard is hard to meet.”

The article may also suggest an openness to various doctrines and arguments designed to limit the federal bureaucracy and its power. It is not surprising, for example, that in another D.C. Circuit case (also to be discussed in a future post), Kavanaugh embraced a particularly muscular version of the so-called “major rules” doctrine, arguing that agencies should not be permitted to extend their regulations to important sectors of the economy (in the particular case, the broadband internet service) absent clear congressional authorization in a statute. And it may suggest an openness to the view of some of his potential future colleagues that the deferential review of agency interpretation of statutes under Chevron needs rethinking. The general views expressed in this article may also indicate an interest in aggressive enforcement of other constitutional requirements relating to agency accountability, such as the appointments clause.

War powers and national security

The final major topic of interest is Kavanaugh’s recommendations regarding the relationship between Congress, the president and the courts on matters of national security. Some of the recommendations are unremarkable — he thinks the president and Congress should recognize that both institutions have a role in authorizing major military action; he observes that they would do well to reach consensus on national-security matters rather than court conflict among the branches and with our enemies at the same time; and he suggests that when courts get involved to police the line between congressional and presidential authority on matters of war, courts’ rulings should be clear.

Of perhaps greatest interest is his discussion of the so-called “Youngstown” categories of presidential wartime powers. As a refresher, this refers to the framework created by Justice Robert Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, a case challenging President Harry Truman’s seizure of certain steel factories in the name of national security during the Korean War. Jackson explained that the president’s wartime powers are at their greatest when his actions are authorized by Congress. The second category involves actions neither forbidden nor authorized by the legislature. And the third category arises when Congress has forbidden an action, but the president asserts constitutional authority as commander in chief to engage in it anyway. In that context, Jackson said, the president’s power is at “its lowest ebb.”

In his article, Kavanaugh notes, but does not necessarily embrace, Jackson’s characterization of the president’s category-three authority. Instead, he states that the “scope of what a President can lawfully do in a Category Three situation is uncertain—and highly controversial with Congress and the public.” He explained further that there have been disputes over whether certain post-September 11 presidential actions fall within the third category or not. Those disputes turn in significant part on whether 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, 127 the Uniform Code of Military Justice, 128 and the Foreign Intelligence Surveillance Act.” If not, certain presidential actions that would otherwise violate the prior laws would fall into the third, most demanding Youngstown category.

Kavanaugh proposes that courts should avoid the question by requiring “express congressional prohibition before classifying the case as a Category Three situation.” The effect of this modest-sounding rule is to expand presidential power by limiting the circumstances in which it is viewed with particular suspicion by the courts.

A few other tidbits

Of less relevance to his potential role as a justice, but interesting nonetheless, the article also:

    • Proposes amendments to the Senate rules to ensure an up-or-down vote on judicial nominees within 180 days. Had that proposal been implemented at the time, the Kavanaugh nomination would be taking place in a very different context — Merrick Garland might have replaced Justice Antonin Scalia, cementing a 5-4 liberal majority Kavanaugh’s nomination would do nothing to change.
    • Addresses the questioning of judicial nominees: “[S]tructural 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.”
    • In a passage Trump may be less enthusiastic about, recommends that presidents be limited to a single, six-year term, to avoid the distractions of campaigning for re-election and what he views as the pattern of unsuccessful second terms by administrations worn out by the struggles of an eight-year reign.

This post was updated at 2:36 p.m. on July 16, 2018, to add a paragraph referencing Kavanaugh’s remarks during a 1998 Georgetown Law Journal conference.

Posted in Nomination of Brett Kavanaugh to the Supreme Court, Judge Kavanaugh's jurisprudence, Featured

Recommended Citation: Kevin Russell, Kavanaugh on presidential power: Law-review article on investigations of sitting presidents (UPDATED), SCOTUSblog (Jul. 13, 2018, 4:36 PM), http://www.scotusblog.com/2018/07/kavanaugh-on-presidential-power-law-review-article-on-investigations-of-sitting-presidents/